Kharrat v. Canada (Minister of Citizenship and Immigration), 2005 FC 106

Date: 20050125

Docket: IMM-3956-04

Citation: 2005 FC 106

Ottawa, Ontario, the 25th day of January 2005

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

                                                    Mouadh Ben Abde KHARRAT

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                Often, even when it hears a heartfelt plea, a court with its inherent limits can only deny an application, and has no choice but to tell an applicant to go somewhere else or even to use his own resources.

NATURE OF JUDICIAL REVIEW

[2]                This is an application for judicial review, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act),^[1] of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated April 1, 2004. In that decision, the Board determined that the applicant did not meet the definition of a "Convention refugee" in section 96 nor that of a "person in need of protection" in subsection 97(1) of the Act.

FACTS

[3]                The applicant, Mouadh Ben Abde Kharrat, a citizen of Tunisia, alleged he had a well-founded fear of persecution on account of his membership in a particular social group, deaf persons abandoned by society. He argued that, as a hearing-impaired person, he had had a difficult life. The alleged persecutions took the form of scorn and misunderstanding, and Mr. Kharrat had his ears pulled, his fingers struck with a ruler and his trousers lowered so he could be hit before the other students. If Mr. Kharrat had to return to his country, he said "it would be slow death for me" because Tunisia was not organized as Canada is to assist deaf-mutes.

IMPUGNED DECISION

[4]                The Board found that Mr. Kharrat had been the victim of discrimination, but that it did not constitute persecution. It further concluded that he had not established that the State of Tunisia was unable to protect him.

ISSUES

[5]                1. Did the Board err in not analysing section 97 of the Act?

2. Did the Board err in determining that the state was able to protect the applicant?

ANALYSIS

1. Did the Board err in not analysing section 97 of the Act?

[6]                In Mr. Kharrat's submission, the Board did not take paragraph 97(1)(b) of the Act into account in assessing the protection application, and if it did, it applied the wrong test, namely persecution. Paragraph 97(1)(b) of the Act provides that a person in need of protection is one who by removal to his or her country would be subject to a risk to their life or to a risk of cruel and unusual treatment or punishment.

[7]                This argument cannot be accepted. In its decision the Board clearly stated that the refugee claim was based on sections 96 and 97 of the Act. It determined that Mr. Kharrat was not a refugee nor a person in need of protection. The Board further analysed the problems which Mr. Kharrat alleged he had encountered and concluded that the difficulties mentioned were more a question of discrimination and that Mr. Kharrat therefore could not be regarded as a refugee. The Board also considered whether Mr. Kharrat's fundamental rights had been infringed. In view of the evidence as a whole, the Board concluded "the claimant's fundamental rights would not be violated in Tunisia". This was not only an assessment to determine whether the question was one of persecution, but also an assessment pursuant to paragraph 97(1)(b) of the Act. This means that the Board took the mistreatment suffered by Mr. Kharrat into consideration and found that it was not cruel and unusual treatment within the meaning of the Act. Accordingly, the Board made no error in this regard.

2. Did the Board err in determining that the state was able to protect the applicant?

[8]                Even if the Board had determined that Mr. Kharrat had suffered persecution or would be at risk of cruel and unusual treatment, the finding regarding the existence of government protection would still have caused the refugee claim to fail [Sarfraz v. Canada (Minister of Citizenship and Immigration)^[2]].

[9]                In Canada (Attorney General) v. Ward,^[3] the Supreme Court of Canada held that unless the governmental apparatus had broken down completely, it had to be assumed that a state was capable of protecting its citizens. On account of this presumption, "clear and convincing confirmation of a state's inability to protect must be provided" (paragraph 50). Mr. Kharrat thus had to rebut this presumption by showing, by clear and convincing evidence, that the Government of Tunisia was unable to protect him. Mr. Kharrat did not submit such evidence to the Board.

[10]            Mr. Kharrat never complained of the mistreatment received to the authorities in his country. He also did not approach any of the many Tunisian organizations committed to the defence of persons who are handicapped, six of which, according to the documentary evidence, are committed exclusively to supporting hearing-impaired persons. He simply said that it was government officials who mistreated him. The Board also noted that it was the Government of Tunisia which paid the cost of his trip to Canada as part of the world congress for deaf-mutes. In these circumstances, the Board assessed the evidence as a whole and properly found that Mr. Kharrat had not succeeded in rebutting the presumption that the government was capable of protecting its citizens.

CONCLUSION

[11]            For these reasons, the Court answers the two issues in the negative. Consequently, the application for judicial review is dismissed.

                                                                       ORDER

THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.

Certified true translation

K. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                               IMM-3956-04

STYLE OF CAUSE:                                               MOUADH BEN ABDE KHARRAT

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                         MONTRÉAL, QUEBEC

DATE OF HEARING:                                           JANUARY 19, 2005

REASONS FOR ORDER AND ORDER BY:     THE HONOURABLE MR. JUSTICE SHORE

DATE OF ORDER AND ORDER:                      JANUARY 25, 2005

APPEARANCES:

Luciano Mascaro                                                       FOR THE APPLICANT

Marie-Claude Paquette                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

ARPIN, MASCARO & ASSOCIÉS                        FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS                                                        FOR THE RESPONDENT

Deputy Attorney General of Canada