Date: 20040128
Docket: IMM-4620-03
Citation: 2004 FC 133
BETWEEN:
MOUSSAOUI, ABDELGHANI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel), under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In this decision, the panel held that the applicant was not a Convention refugee within the meaning of section 96 of the Act and was not a "person in need of protection" under section 97 of this Act.
FACTUAL BACKGROUND
[2] The applicant, a citizen of Algeria, states that he left his country because he fears persecution because of his political opinion and he is seeking refugee status on the basis that he risks being subjected to torture and a threat to his life or a risk of cruel and unusual treatment or punishment.
[3] From September 1989 to March 1991, the applicant performed his mandatory military service. He was called into the reserves in October 1997, but he did not respond, fearing that terrorists would kill him if he resumed his military service, because there were signs posted everywhere that said that those who showed up for their service, as well as their family, would be killed. Nevertheless, he was obliged to enlist from May 5, 1999 to August 15, 1999, because the Gendarmerie came to get him.
[4] He was discharged on August 15, 1999, after three months of service. He went to his aunt's home in Oran for eight months rather than return home. After a few stops in the desert at Ouergla and Skikda, he returned to Algiers. He feared and still fears reprisals from terrorists in his city in Algeria.
[5] During his service with the army, he was brought to the Blida barracks for 10 days and was sent to Sétif on May 5, 1999, where he received military training for about one month. He also, alternately, kept watch at the entrance and at the exit of the city, guarded the barracks and searched for terrorists; he also worked as an assistant cook.
[6] He claims that one of his neighbours in the neighbourhood was killed on the first day of his return from the army. He also claims that it is common knowledge that there were informants in his city and that the terrorists made lists of people they were looking for. He alleges that his name appears on such a list.
[7] After he was discharged from the army, he attempted to leave Algeria, and was unsuccessful because the authorities would not give visas to Algerians. From August 15, 1999, until September 2, 2001, he lived with his aunt in Oran and moved to Ouergla, Skikda and Algiers. Carrying false documents, he left Algeria on September 2, 2001.
IMPUGNED DECISION
[8] The panel held that the applicant was not a Convention refugee or a person in need of protection. The applicant was not a member of a particular group within the meaning of the classes of the Convention. He was, rather, a member of a group of military service inductees. Even if the panel had no reason to doubt the applicant's identity, his behaviour was not credible or consistent with the behaviour of someone who has a well-founded fear of persecution or who fears a risk to his life or cruel and unusual treatment or punishment.
[9] The panel found it implausible that the applicant, a person who had completed his military service, would have been more particularly targeted by terrorist attacks than many other citizens in his country. The panel based its findings on the following considerations:
· During his three-month service as a member of the reserve, the applicant had been assigned to kitchen duty, and therefore did not participate in activities that would risk making him a target of the terrorists.
· He never received terrorist threats.
· The applicant could not show that his name appeared on a list that would make him a terrorist target.
· The applicant travelled on the country's roads and he lived in his country for two years without having any problems.
· The documentary evidence indicates that the attacks against young people who performed their military service took place in 1994 and 1995. The attacks by terrorists are not aimed at any individuals in particular but, rather, at civilians in general. A 2001 report indicates that there were no attacks against persons who had completed their military service and who had returned to civilian life.
· The Algerian government makes serious efforts to protect its citizens.
ISSUE
[10] Did the panel make a decision based on erroneous findings of fact or made in a perverse or capricious manner or without regard for the material before it?
APPLICANT'S SUBMISSIONS
[11] Relying on the decision in Saliban v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250, the applicant points out that the panel had not considered certain important aspects of the documentary evidence. In particular, the evidence "US Department of State - Country Reports on Human Rights Practices 2001" and "Algeria - April 2002 Country Information and Policy Unit", which clearly indicate that persons from his particular army group were killed by the terrorists, was omitted by the panel. This evidence explains that government officials and their families are specifically targeted by the terrorists. Thus, the panel could not liken the applicant to any other person in Algeria. Further, the panel imposed a high burden of proof, requiring the applicant to show that he was more of a target than his fellow soldiers in order to establish a real fear of persecution - which was erroneous.
[12] The applicant was assessed according to arbitrary criteria that did not take into account the special burden of proof imposed on the claimant. It was an error in itself for the panel to say that because the applicant had never been a victim of terrorism, he never would be.
[13] The panel erred in finding that the applicant had to file, as evidence, a list with his name appearing on it in order to prove a fear of persecution.
[14] The panel erred in stating that the members of the armed forces were not members of a particular social group within the meaning of the Convention, as described in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[15] The panel erred in deciding that the military documents filed by the applicant established that the government made serious efforts to protect the population.
[16] The panel erred in failing to examine whether the applicant was a person in need of protection.
RESPONDENT'S SUBMISSIONS
[17] The respondent refers to Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, where the Supreme Court of Canada reiterated that a refugee claimant has the burden of demonstrating the existence of a well-founded fear of persecution. Following the end of his assignment as a soldier in the reserves in August 1999, the applicant stayed in Algeria until September 2001. Throughout this time, the applicant was never threatened or harassed by the terrorists.
[18] The panel never required that the applicant file, as evidence, a list compiled by the terrorists with his name on it. The panel considered, rather, that the applicant was not personally targeted by the terrorists because his activities in the army had never exposed him to such a risk.
[19] In order to satisfy the definition of "Convention refugee", the applicant must demonstrate that he meets all of the characteristics of this definition. Among the components there are the subjective and objective elements of the alleged fear of persecution and the existence of a connection between this fear and one of the grounds of the Convention. The panel is fully entitled to assess whether there is a subjective fear of persecution in light of the the applicant's behaviour in the context of the events upon which his claim is based. The panel held, correctly, that the applicant did not establish a subjective fear. The panel looked at the evidence, including the documentary evidence that suggests that the attacks against the soldiers took place in 1994-1995 and that the government had ceased its acts of retaliation against those who had completed their military service.
ANALYSIS
[20] The application for judicial review shall be dismissed.
Well-founded fear of persecution - objective and subjective
[21] To satisfy the definition of "Convention refugee", the applicant must show that he meets all the components of this definition, beginning with subjective and objective fear of persecution. In Kamana v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1695 (QL), at paragraph 10, Tremblay-Lamer J. states:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition, subjective and objective, must be met.
In Chan, supra, at page 659, the Court states:
Both the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. . . . The applicable test has been expressed as a "reasonable possibility" or, more appropriately in my view, as a "serious possibility".
[22] The analysis of a subjective and objective fear of persecution is a question of fact and evidence that falls to the panel. The Court should not intervene unless the panel has made a patently unreasonable error. In this case, the panel clearly indicated why it could not find that the applicant had either a subjective or objective fear:
· the applicant lived in Algeria until September 2001- two years after he had been been released from his duties as a soldier in the reserves;
· there is no evidence indicating that the applicant or the class to which he belongs is targeted by terrorists; and
· he never received any threats from these terrorists.
This last factor could be considered, as Associate Chief Justice Jerome pointed out in his reasons in Flores Siguenza v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 872, paragraph 11 (QL):
It is, of course, settled law that a person may be a refugee without having suffered past persecution [See Salibian v. Canada (Minister of Employment and Immigration) [1990] 3 F.C. 250]. However, the Board is entitled to consider the lack of past persecution together with all other evidence . . . .
[23] The applicant says that the panel erred in considering that conscripts are not a defined social group according to Ward, supra. In order to meet the definition of refugee, it is not sufficient to claim to be part of a certain group. Ward defined the three groups that need protection under the Convention:
(1) groups defined by an innate, unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
.
The applicant does not fall into any of these three categories. The Court does not accept that the applicant's fear is based on his membership in the group in question. In my opinion, the applicant, rather, belonged to a group called to service. It is not defined by an innate or unchangeable characteristic, such as his sex for example; nor was he part of a group whose members voluntarily associate for reasons fundamental to their human dignity. The applicant was forced to join the army.
[24] Nevertheless, the Court is of the opinion that the applicant may experience a subjective fear. A person who is obliged to do something that he or she does not want to do will certainly experience fear. On the other hand, the protection requirement under the Convention is twofold. The panel must be persuaded by the applicant that there is an objective fear of persecution in the country. For this purpose, the panel may consider the testimony of the applicant and the documentary evidence. In this case, the panel took both into consideration, but favoured the documentary evidence. This documentary evidence contains the following passages:
The government's security apparatus is composed of the armed forces (army 107 000 including 75 000 conscripts, air force 10 000 and navy 7 000); and paramilitary forces of 181 2000 . . . All of these elements are involved in counter insurgency and counter terrorism operations and are under the control of the government. (from Algeria - April 2002 - Country Information and Policy Unit)
A country situation reported by the Dutch immigration authorities in 2001 states that there is generally no sign at present of violence against conscripts who had just completed their military service and returned to civilian life, in contrast to the first years of terrorism. (from Algeria - April 2002 - Country Information and Policy Unit)
Assessment of the evidence as a whole
[25] Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 states:
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court . . . nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it . . . [t]hat would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice . . . [h]owever . . . a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. [emphasis added]
[26] In this case, the panel considered all of the evidence before it, both supporting and non-supporting of the allegations. However, the panel paid special attention to certain aspects of the evidence. For example, the panel emphasized the country reports, such as the "US Department of State - Country Reports on Human Rights Practices 2001" and "Algeria - April 2002 Country Information and Policy Unit", where it is indicated that even civilians were killed during the period referred to by the applicant in his allegations. The panel, as pointed out by MacKay J. in Tawfik v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 835:
. . . noted that the Board often refers to documents that contain both supporting and non-supporting reference. The Board may select, as part of its role and part of its expertise, the evidence that it prefers. . . .
[27] The same judge in Woldemeskel v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 140 states the following on the subject:
Where there is conflicting evidence, it is for the tribunal to determine the weight it will assign to any given piece of evidence. Only where the conclusions of the tribunal are perverse or capricious, and thus unreasonable, in light of the evidence will the court intervene.
. . .
[28] In this case, the panel took the following into account regarding threats against individuals from the country reports which state that::
Most newspaper reports of such cases are dated 1994 and 1995. However, there were still occasional reports of young men who have just finished their military service being victims of terrorist attacks. [emphasis added]
[29] The last sentence clearly indicates that the panel considered evidence to the contrary. The fact that it did not cite the sentence that the applicant wanted to cite does not change anything. Moreover, the panel specifically indicated that it had considered all of the evidence, including the "US Department of State - Country Reports on Human Rights Practices 2001", which satisfies the requirement, a contrario, set down in Cepeda-Gutierrez, supra. Furthermore, at page 5 of the hearing transcript of December 10, 2002, the panel makes the following remark: "[TRANSLATION] So, this is the folder that we will retain, A-1 to A-7, and there is a whole other series of documents, M-1 to M-8." There is no doubt that the panel analysed all of the evidence before it. The applicant's argument, therefore, does not hold up.
[30] The hearing transcript of December 10, 2002, clearly demonstrates that the panel never asked the applicant to file a list on which his name appeared, nor did it require that he show that he was more of a target than the other members. The requirement set out in Rizkallah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 412, (F.C.A.) (QL) and Hersi v. Canada (Minister of Employment and Immigration), [1993] F.C.J No. 553 (F.C.A.) (QL) is that the persecution must be directed against the applicant personally, either as an individual or as part of a collective. In this case, the panel simply wanted some evidence - a list, for example - indicating that he was personally targeted by the terrorists, which the applicant was unable to establish.
[31] The panel also examined the evidence pertaining to the State and the protection it offers to its citizens. The panel reasonably determined that the Algerian State could offer adequate protection to the applicant. The protection offered by the State does not necessarily have to be perfect, it must be adequate, as Décary J.A. writes in Zalzani v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.):
. . . several established authorities in the same country which are each able to provide protection in the part of the territory controlled by them, protection which may be adequate though not necessarily perfect.
Considering the documents and oral arguments, the Court is of the opinion that the panel did not err.
Person in need of protection
[32] The panel did not err in considering that the applicant was not a person in need of protection. The panel examined the evidence and assessed the applicant's behaviour and determined that that it was not the behaviour of someone who feared being subjected to a risk to his life or cruel and unusual treatment or punishment.
[33] The panel determined, rather, that the applicant was at general risk of persecution, like all citizens of Algeria. Section 97 provides that the applicant must be subject personally ". . . to a risk to [his] life or to a risk of cruel and unusual treatment or punishment if . . . the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country . . . ".
[34] In conclusion, the panel did not act unreasonably, or patently unreasonably, and was not negligent in its analysis, either. The parties did not propose the certification of a question of general importance under paragraph 74(d) of the Act and no question will be certified.
"Sean Harrington"
JUDGE
Ottawa, Ontario
January 28, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4620-03
STYLE OF CAUSE: MOUSSAOUI, ABDELGHANI
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 14, 2004
REASONS FOR ORDER BY: HARRINGTON J.
DATE OF REASONS: JANUARY 28, 2004
APPEARANCES:
Rachel Benaroch FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rachel Benaroch FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT
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