Date: 20121220
Docket: IMM-3820-12
Citation: 2012 FC 1527
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, December 20,
2012
PRESENT: The Honourable Mr. Justice
Simon Noël
BETWEEN:
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MILOUD BAGUI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board dated March 28, 2012, under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001
c 27 [the IRPA]. The RPD determined that the applicant is neither a
Convention refugee under section 96 of the IRPA nor a person in need of
protection within the meaning of section 97 of the IRPA.
I. Facts
[2]
The
applicant is a 64-year-old citizen of Algeria. He has been a construction
contractor since the year 2000. In 2005, he won a contract to carry out work on
the courthouse in Sidi Bel-Abbès.
[3]
In
the month of September 2007, a terrorist group allegedly contacted him by
telephone and asked him to stop working on the courthouse.
[4]
Since
he did not respond to the threat and continued working, members of the
terrorist group went to his home and warned him that if he did not stop work,
he would have to pay them 300 million dinars. He was warned not to contact
the police.
[5]
The
applicant then went to live with his cousin, a police officer who lives in El Bayed,
a highly secure part of town.
[6]
One
week after their first visit, a number of individuals allegedly came to his
home a second time and threatened his wife and children.
[7]
The
applicant therefore contacted his brother in Canada to obtain a “certificat
d’hébergement” (proof of accommodation). He left Algeria for Canada on
April 15, 2008, and claimed refugee protection on December 29, 2008,
leaving his family behind.
II. Decision under review
[8]
The
RPD found the applicant to be credible regarding his story. It analyzed the
documentary evidence relating to the protection Algeria provides against terrorist
groups, particularly Al-Qaeda, as well as the evidence filed by the applicant.
[9]
The
RPD concluded that the applicant’s decision not to seek state protection was
unjustified in the circumstances and that he could therefore not obtain refugee
status. Moreover, the evidence did not show that the applicant would face a
personalized risk if he returned to Algeria.
III. Applicant's position
[10]
The
applicant submits that the RPD erred in concluding that the applicant could
avail himself of the protection of the Algerian authorities. He submits that he
filed evidence, namely, newspaper articles, establishing that the Algerian
government is unable to control acts of terrorism, and he testified to the
effect that only wealthy individuals are given protection.
[11]
According
to the applicant, it was therefore reasonable in the present case not to seek state
protection, and he provided a clear and convincing explanation for his refusal
to seek that protection, especially since the terrorist group threatened him
and warned him not to go to the police. He consulted a lawyer, but his
police-officer cousin could not help him file a complaint, given that it had to
be filed in Sidi Bel-Abbès, where the incidents took place.
[12]
Finally,
the applicant submits that the RPD erred in determining that he is not a
“person in need of protection” because, he argues, he would face a personalized
risk if he returned to Algeria. Indeed, he submits that he is a member of a
group that faces a risk not generally faced by people in Algeria, as the fact
that he was working for a court could cause him to be viewed as a supporter of
the Algerian authorities.
IV. Respondent's position
[13]
The
respondent argues that the RPD’s decision is reasonable. First, the applicant
did not avail himself of the protection of the Algerian state even though it
would have been reasonable for him to do so in the circumstances, given that
the presumption of state protection applies to Algeria. Moreover, the
applicant’s subjective belief that the State cannot protect him adequately is
not enough to justify his refusal to seek protection.
[14]
In
addition, regarding the RPD’s section 97 analysis, the respondent submits
that the RPD validly determined that the applicant is not a “person in need of
protection”, given that Algeria offers effective state protection and that the
evidence indicates that, should he return to Algeria, the terrorist group would
not try to threaten him.
V. Issues
(1) Did the RPD err in concluding that state
protection is available to the applicant in Algeria?
(2) Did the RPD err in determining that the applicant
is not a “person in need of protection” within the meaning of section 97
of the IRPA?
VI. Standard of review
[15]
The
standard of review that applies to both questions is reasonableness, as these
are questions of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC
9 at paragraphs 164-66, [2008] SCR 190).
VII. Analysis
(1) Did the RPD err in concluding that state
protection is available to the applicant in Algeria?
[16]
The
RPD’s decision is reasonable, and the Court’s intervention is not required in
the circumstances.
[17]
The
RPD validly concluded that Algeria is a democratic state. The RPD considered
the documentary evidence regarding the protection offered by the Algerian
authorities and the evidence filed by the applicant regarding terrorist acts
committed in Sidi Bel Abbès and in Algeria, as well as the applicant’s
testimony. It rightly concluded that although the protection is not perfect,
Algeria has taken concrete action to counter acts of terrorism, and the
Algerian state is therefore generally able to offer its citizens effective
protection.
[18]
It
was established in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689,
103 DLR (4th) 1, that when a state is considered to be democratic, the
applicant must provide a clear and convincing justification for not seeking
state protection.
[19]
The
RPD reasonably concluded that the applicant’s refusal to seek state protection
was unjustified. This Court has established on many occasions that an applicant
who cannot show that he or she has made practical efforts to obtain state
protection cannot seek protection from a third state by claiming refugee
protection (Ballesteros v
Canada (Citizenship and Immigration), 2009 FC 352 at paragraphs 15-17, 2009
CarswellNat 2469). The applicant has not filed any evidence that the RPD has found to be
satisfactory and specific to his situation, and he bases his refusal solely on
a belief that the Algerian authorities only help [translation] “foreigners and officials”.
[20]
Therefore,
the RPD’s conclusion that the applicant has not established the essential
elements of a claim for refugee protection is well founded.
(2) Did the RPD err in determining that
the applicant is not a “person in need of protection” within the meaning of
section 97 of the IRPA?
[21]
The
RPD’s determination that the applicant is not a “person in need of protection”
is reasonable, in light of the evidence filed by the applicant.
[22]
The
RPD considered that the fact that the applicant had no further problems after moving
in with his cousin, and that his wife and children, now having moved, had not
been threatened since the events in question. Furthermore, the documentary
evidence is to the effect that, in general, the Algerian state is able to
provide its citizens with adequate protection. The RPD’s analysis of a state’s
ability to protect its citizens has the same bearing on the assessment of the
merits of an individual’s claim for refugee protection as it does on the
determination of whether that individual is a “person in need of protection” (Arellano v Canada (Minister of
Citizenship and Immigration), 2006 FC 1265 at paragraph 41, 2006 CarswellNat 3469). It was therefore
reasonable to conclude that the applicant would probably not face a
personalized risk if he had to return to Algeria.
[23]
The
parties were asked to submit a question for certification, but no question was
submitted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for judicial review is dismissed, and no question will
be certified.
“Simon Noël”
Certified true translation
Michael Palles
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