Date: 20100914
Docket: IMM-5414-09
Citation:
2010 FC 913
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, September 14, 2010
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
MOHAMMED
SERKHANE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
...My decision to allow this application for
judicial review is based solely on the panel's failure to explain the reasons
that led it to disbelieve the parents' testimony concerning the incidents in
question. It was not sufficient to rely on the documentary evidence from the
country concerning the validity of the refugee claim without dealing
specifically with the applicants' evidence.
For these
reasons, the panel's decision is set aside and the matter is referred back to a
new panel of the Convention Refugee Determination Division for rehearing on the
basis of these reasons.
(As specified by
Chief Justice Allan Lutfy in Roudatchenko v. Canada (Minister of Citizenship
and Immigration) (1997), 83 A.C.W.S. (3d) 663, [1997] F.C.J. No. 1231 (QL)).
[2]
[9] According to Dunsmuir (at paragraph 47):
“In judicial review, reasonableness is concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” [emphasis added].
…
[18] As noted hereinabove, I find that the principle
set out in Hilo applies to the Panel’s decision in this case.
In addition, some of the findings of the Panel are clearly incompatible with
the evidence submitted before it, or at the very least, the Panel did not
address why such evidence was disregarded.
(As rendered by
Justice Robert Mainville in Zilani v. Canada (Minister of Citizenship and Immigration), 2010 FC 357, [2010] F.C.J. No. 433 (QL)).
II. Judicial procedure
[3]
This is an
application for judicial review of a decision of the Refugee Protection
Division (RPD) dated October 13, 2009, that the applicant is neither a
“Convention refugee” nor a “person in need of protection”.
[4]
In this
case, the RPD based its decision on reasoning related to the lack of fear, inconsistencies
in the evidence, state protection and the existence of an internal flight
alternative (IFA).
III. Facts
[5]
The
applicant, Mohammed Serkhane, is a citizen of Algeria, a Berber from Tizi-Ouzou.
[6]
He alleges
that he fears a terrorist by the name of Chenoui, who targeted him for having helped
Chenoui’s spouse escape from a situation of domestic violence.
[7]
The
applicant alleges this fear even though Chenoui took refuge in the mountains
and the police are trying to arrest him.
[8]
After
taking refuge for approximately two months in the country’s capital without
incident, the applicant left for the United Kingdom, where he spent 15 days
before leaving for Canada using a false French
passport.
IV. Issue
[9]
Was the
RPD’s decision unreasonable?
V. Analysis
[10]
The Court
accepts and is in agreement with some of the applicant’s arguments.
[11]
Because the
questions are of fact or of mixed fact and law, the applicant must show that
the RPD’s decision was unreasonable. (For the general principle, see: Jean-Baptiste
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1261, [2009] F.C.J.
No. 1590 (QL) at para. 13; for the question of credibility, see: Auguste v.
Canada (Minister of Citizenship and Immigration), 2009 FC 1099, [2009] F.C.J.
No. 1317 (QL) at para. 6; for the question of state protection, see: Ghotra v.
Canada (Minister of Citizenship and Immigration), 2009 FC 764, [2009] F.C.J.
No. 924 (QL) at paras. 15-16; for the question of the IFA, see: Singh v.
Canada (Minister of Citizenship and Immigration), 2009 FC 1304, [2009] F.C.J.
No. 1679 (QL) at para. 11).
[12]
The
applicant first tried to argue that the RPD ignored evidence corroborating
Chenoui’s attempt to take his life, evidence that also concerns state
protection and the IFA. The applicant mentioned, among other things, the power of
the Groupe Salafiste pour la Prédication et le Combat Ouzou (GSPC) and
the weakness of the state.
[13]
According
to the applicant, despite the fact that the applicant’s general documentary
evidence shows that serious efforts have been made in Algeria to make the
country safe and fight terrorists, there are cases where the government cannot
protect some elements of the population in circumstances such as those
described in the documentary evidence (see, for example, the articles on p. 129
of the Applicant’s Record).
[14]
The case
law confirms that state protection need not be perfect. If the state controls
its territory and makes serious efforts to protect its citizens, the fact that
there are weaknesses in that protection is not enough to rebut the presumption
of state protection unless the evidence shows the contrary in a particular case
such as this one (Canada (Minister of Employment and Immigration) v.
Villafranca (1992), 150 N.R. 232, 37 A.C.W.S. (3d) 1259 (F.C.A.); Burgos
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1537, 160
A.C.W.S. (3d) 696 at para. 36).
[15]
The
foregoing shows that there is a significant difference of opinion between the
applicant and the RPD and, therefore, the decision is unreasonable in view of
the situation described below.
[16]
The RPD is
also required to give reasons for rejecting evidence produced by the applicant:
Hilo v. Canada (Minister of Citizenship and Immigration) (1991), 130
N.R. 236, 26 A.C.W.S. (3d) 104; Badurdeen v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 355, 121 A.C.W.S. (3d) 1131; Mui v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1020, 125 A.C.W.S. (3d)
691).
[17]
In fact,
the RPD made a negative decision without taking into consideration important
elements of the applicant’s account, even though the RPD specified that “the
claimant answered directly all questions from his counsel and from the panel” (Decision at p. 4,
para. 17).
[18]
In Voyvodov
v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 299,
91 A.C.W.S. (3d) 636, Chief Justice Lutfy specified that an administrative
tribunal must state in clear and unmistakable terms its reasons for rejecting
an applicant’s testimony. The RPD did not do this.
[19]
The Court is
of the view that while certain documents are not of general scope, they are original
documents, some of which came directly from the Algerian authorities involved
in the fight against terrorism, their authenticity has never been contested
by the RPD and they are not mentioned anywhere in its analysis. This Court
therefore needs to discuss certain documents:
(a) P-4 is an
attestation dated June 1, 2009, signed by Touzene Hachimi, Secretary General,
confirming that the applicant, Serkhane Mohammed, has been a member of the Association
Amusnaw since August 15, 2002, along with the organization’s report, signed
by the association’s president, confirming his risks of returning to Algeria in
view of the attempted kidnapping of the applicant and giving the background of
his problems with his agent of persecution in the GSPC, Chenoui Madjid.
(b) P-5 (legal
opinion dated July 13, 2009, by his Algerian counsel, Daoui Malika), which
confirmed that it was impossible for the applicant to obtain adequate
preventive protection from the Algerian authorities grappling with the GSPC’s
terrorist activities, given that even the Algerian state has difficulty
protecting itself effectively from the GSPC’s terrorist activities, as
confirmed by the legal opinion of the Algerian counsel, and which was not
analyzed in any way in the RPD’s decision and which was not even mentioned.
(c) P-6.1, the
medical certificate dated April 16, 2008, from the Tizi-Ouzou university
hospital centre, concerning the assault on the applicant when the GDSPC tried
to kidnap him on March 16, 2007.
(d) P-7, the
official summons by Algerian authorities of the individual, that is, the
applicant, to report on May 20, 2007, at 8:30 a.m. concerning his kidnapping
and death threats.
(e) P-8, the
court proceedings record, together with the investigative proceedings conducted
by officers of the Algerian squad, with an information for intentional assault
(kidnapping) and death threats against Chenoui Madjid, residing in the city of Cadi
Tizi-Ouzou, confirming that on March 17, 2008, at 4:30 a.m., one Serkhane
Mohammed, aged twenty-eight, appeared to report that the applicant had received
a telephone call from one of his friends, Driss Hayat, asking him to help Chenoui
Anissa Zalzli (Chenoui Madjid’s spouse) and her son Mourad, who were being
assaulted and violently beaten by her spouse Chenoui Madjid, who had been a
member of a terrorist organization since 1995 and subsequently granted amnesty
under the Peace and National Reconciliation Charter pursuant to order 01/05 dated
27/02/2005.
(f) P-17-2,
the translation into French of the Algerian police report dated May 22, 2007,
and the original of the document in Arabic (under 16.1 in Arabic), together
with the statement of arrested terrorist Kamar Sayed Ali, confirming the
truthfulness of the kidnapping and assassination attempt on the applicant
on March 16, 2007, by members of the GSPC, one of whom had been arrested by the
Algerian authorities, which terrorist acknowledged in his examination that the
applicant’s kidnapping had been ordered by an agent of persecution in the GSPC,
Chenoui Madjid, with the intent to kill the applicant in a situation where the
arrested terrorist had acknowledged that his agent of persecution, Chenoui
Madjid, was looking for him.
[20]
As
specified in Bokayi v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 22, 119 A.C.W.S. (3d) 817:
[9] The applicant submits that the
Board erred in law by assigning no weight to the documentary evidence submitted
by his counsel. A tribunal is presumed to have considered the entirety of the evidence
before it (Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.A.)). It is
only necessary for a tribunal to refer to evidence directly relevant to the
issue being addressed, and which would appear to be in conflict with its
conclusion; the requirement for explanation of a rejection of evidence
increases with the relevance of the evidence in question to the disputed facts (Cepeda-Gutierrez
et al. v. Canada (M.C.I.) (1998), 157 F.T.R. 35).
[10] In this case, the
Board included excerpts from two documents in its reasons: Response to
Information Request IRN33937.FE and Response to Information Request IRN37446.E.
The first document makes no reference to Javid Iran. Although the Board has, again, failed to explain why it included
this document, it seems to have been as proof that monarchist movements are no
longer organized and active in Iran, and that most monarchists are now of
advanced years. The applicant had provided a document which directly
contradicts the evidence relied upon by the Board, in the form of a CNN article
describing a protest by hundreds of anti-government demonstrators, mostly
pro-monarchists. The Board erred in not addressing this relevant piece of
evidence and explaining its rejection of it.
[11] Consequently,
because the Board made what amounts to a general finding of lack of credibility
without clearly and comprehensibly explaining its reasons for doing so, and
because the Board failed to mention a relevant piece of evidence in dismissing
the applicant's claim, the application for
judicial review is granted and the matter is referred back for rehearing and
reconsideration by a differently constituted tribunal.
VI. Conclusion
[21]
It follows
that the RPD did not take into account deficiencies in the key evidence, and
did not give reasons for doing so, and consequently this case should be
reconsidered.
[22]
The Court
finds that the RPD’s decision does not fall within a range of possible,
acceptable outcomes based on Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190.
[23]
In
view of the foregoing, the application for judicial review is therefore
allowed.
JUDGMENT
THE COURT ORDERS that
1. The
application for judicial review be allowed and the matter be referred back to
the RPD for reconsideration by a different panel;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, LLB
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