Docket:
IMM-3692-11
Citation:
2012 FC 178
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 8, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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HOCINE FENEK
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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
I. Introduction
[1]
This
is an application for judicial review submitted in accordance with subsection
72(1) of the Immigration
and Refugee Protection Act,
SC 2001, c 27 (IRPA),
of the decision by the Immigration and Refugee Board (IRB), dated April 4,
2011, that Hocine Fenek (Mr. Fenek) is not a Convention refugee or a person in
need of protection under section 96 and subsection 97(1) of the IRPA.
[2]
For
the following reasons, the application for judicial review is dismissed.
II. Facts
[3]
Mr.
Fenek was born in and is a citizen of Algeria.
[4]
Before
he arrived in Canada, Mr. Fenek operated a restaurant in the Algiers area,
110 kilometres from his residence in Beni-Douala, in the Kabylie mountains
of Tizi-Ouzou.
[5]
On
January 3, 2008, Mr. Fenek was returning home from work when armed men blocked
the road and forced him to get out of his vehicle. They searched his truck, took
his personal identification papers and took 30,000 DA from him.
[6]
The
men questioned him about his employment situation and succeeded in obtaining
his telephone number. They also demanded that Mr. Fenek pay them 10,000 DA every
two weeks.
[7]
Mr.
Fenek paid the amounts demanded for two months.
[8]
In
March 2008, the men called Mr. Fenek to a meeting at the “le 1er novembre” coffee
shop to give him a mission. He decided, subsequently, to cancel his telephone
line and fled to the home of his brother, who also operated a restaurant, but
in downtown Algiers.
[9]
Mr.
Fenek left Algeria for Canada at the invitation of his sister. He arrived in
Canada on May 2, 2008, and claimed refugee protection on October 6, 2008. In
his Personal Information Form (PIF), completed on December 4, 2008, Mr. Fenek alleged
that he was the subject of death threats for refusing to comply with the
demands of a terrorist group.
[10]
The
IRB found that, even though Mr. Fenek made a credible refugee protection claim,
he is not a Convention refugee or a person in need of protection.
[11]
The
IRB’s decision specified that no evidence was submitted by Mr. Fenek to
establish that section 96 applies in this case. The decision also indicated
that Mr. Fenek does not face a personalized risk and that “[t]hroughout his
testimony, the claimant failed, on a balance of probabilities, to satisfy the
panel of a future risk, which is required to apply paragraph 97(1)(b) of
the IRPA” (see paragraph 25 of the IRB decision).
III. Legislation
[12]
Section
96 and subsection 97(1) of the IRPA read as follows:
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Convention
refugee
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Définition de « réfugié »
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96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
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96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
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(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
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a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
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b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
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a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of
that country,
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(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) 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,
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(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is not
inherent or incidental to lawful sanctions, unless imposed in disregard of
accepted international standards, and
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(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
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(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
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(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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IV. Issue
and applicable standard of review
A. Issue
[13]
This
application for judicial review raises the following question:
·
Did
the IRB err by characterizing the risk Mr. Fenek faces in Algeria as
generalized and by finding that he would not be subject to an unusual risk if
he were to return to his country of origin?
B. Applicable
standard of review
[14]
This
application for judicial review is assessed on the standard of reasonableness
because “interpreting the exclusion of generalized risks of violence under
subsection 97(1)(b) of IRPA [i]s an issue of application of law to the
particular facts of a case” (see Rodriguez Perez v Canada (Minister
of Citizenship and Immigration), 2009 FC 1029, paragraph 24 (Perez),
and Prophète v Canada (Minister of Citizenship and
Immigration), 2009 FCA 31 (Prophète)).
[15]
The
IRB decision must therefore fall within the range of “possible, acceptable
outcomes which are defensible in respect of the facts and law” (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47).
V. Position
of the parties
A. Position
of the applicant
[16]
Mr.
Fenek points out that the IRB found that the risk he faced in Algeria is one
that it characterizes as generalized and which is faced by an entire group of
the Algerian population, in this case, merchants.
[17]
Mr.
Fenek argues that the IRB erred in fact and in law because it considered him as
belonging to the group of Algerian merchants whereas he claims that he was a
victim of terrorists.
[18]
He
also emphasizes that the IRB’s analysis does not mention the personal and
specific threat directed towards him, that is, his forced involvement in
terrorist activities. Mr. Fenek claims that that risk has nothing to do with his
occupation as a merchant.
[19]
According
to Mr. Fenek, the finding by the IRB that he is a member of a subset of the
Algerian population facing a generalized risk is not supported by the evidence
in the record. Mr. Fenek alleges that the reasoning by Madam Justice
Bédard at paragraph 12 of Sanchez v Canada (Minister of Citizenship
and Immigration), 2011 FC 622, as follows, applies in this case:
[12] In this case, the risk claimed by the
applicant is clearly related to his fear of retaliation for his refusal to join
a street gang. Yet, the evidence on file does not deal with the forced
recruitment of young people practised by street gangs. Given that the risk
alleged by the applicant was clearly related to his fear of retaliation for his
refusal to join a street gang, the Board could not, in the absence of evidence,
conclude that the risk faced by the applicant was generalized. The documentary
evidence dealing with the number of young people who are street gang members
and the factors that push them to join a gang was not relevant in supporting a
finding of generalized risk related to forced recruitment or the fear of
retaliation for refusing to join.
[20]
He
maintains that the facts in this case differ from those in Perez, above,
Prophète, above, and Arias v Canada (Minister of
Citizenship and Immigration), 2010 FC 1029, in which the IRB’s findings
with respect to the existence of a generalized risk are based on concrete evidence.
[21]
Mr.
Fenek also makes an argument with respect to his psychiatric condition (see
Exhibits P‑3 and P‑4 at pages 97 to 116 of the IRB record). He
contends that his problems arose from the events he experienced in Algeria.
[22]
The
IRB found that Mr. Fenek did not succeed in establishing, on a balance of
probabilities, that he would face a risk of persecution if he were to return to
Algeria. The IRB formed the basis for its conclusion by writing that “[t]he
claimant testified that, since he left, none of his family members have been
assaulted by [terrorists] . . . and, furthermore, his business had been rented
to someone and that he has not heard anything about that person” (see paragraph
21 of the IRB decision).
[23]
However,
Mr. Fenek submits that the lack of news concerning the rental of his former business
confirms that the threat he faced in Algeria was not a generalized one.
[24]
Furthermore,
he claims that the IRB failed to consider the fact that one of his brothers had
to sell his own restaurant to flee the terrorists. Mr. Fenek refers the Court
to page 39 of the hearing transcript. He stated the following therein: [translation] “My twin brother who left
for the Sahara, we think he is in danger. He left for the South because of this.”
[25]
Mr.
Fenek also alleges that the IRB did not consider that an individual known by
the Fenek family was killed by a group of terrorists. Mr. Fenek states that the
danger is very real and that the IRB cannot disregard the fact that the
terrorists in question can make inquiries with their associates to find him if
he were to return to Algeria.
[26]
Finally,
Mr. Fenek claims that he could possibly suffer reprisals at the hands of the
Algerian authorities because the amounts paid could have been used for
terrorist activities.
B. Position
of the respondent
[27]
The
respondent acknowledges the fact that Mr. Fenek does not challenge the finding
in the IRB decision regarding the application of section 96 of the IRPA. That
finding is reasonable (see Cienfuegos v Canada (Minister of
Citizenship and Immigration), 2009 FC 1262 at paragraph 26).
[28]
The
respondent primarily argues that the IRB’s analysis of Mr. Fenek’s claim in
accordance with subsection 97(1) of the IRPA is reasonable in this case because
it relied on the evidence submitted by Mr. Fenek.
[29]
According
to the respondent, the finding by the IRB that Mr. Fenek did not establish a future
risk should he return to Algeria was reasonable (see paragraph 20 of the IRB
decision) because it relied on, among other things, the following statement by
the principal person: “none of his family members have been assaulted by these
individuals and, furthermore, his business had been rented to someone and that
he has not heard anything about that person” (see paragraph 21 of the IRB
decision).
[30]
The
respondent also points out that a good portion of Mr. Fenek’s arguments, that
is, paragraphs 40, 42, 43 and 45 of the Applicant’s Memorandum, constitute new
facts that were not submitted into evidence before the IRB. However, it has
been clearly established in the case law in this Court that, in an application
for judicial review of an administrative decision in accordance with section
18.1 of the Federal Courts Act, RSC (1985), c F-7, the Court can only
consider the evidence that was before the decision-maker, in this case the IRB
(see Lalonde v Canada (Revenue Agency), 2008 FC 183 at paragraph
66; Nyoka v Canada (Minister of Citizenship and Immigration),
2008 FC 568; Jakhu v Canada (Minister of Citizenship and Immigration),
2009 FC 159 at paragraph 18; Lalane v Canada (Minister of Citizenship
and Immigration), 2009 FC 6 at paragraph 20; Vong v Canada
(Minister of Citizenship and Immigration), 2006 FC 1480 at paragraphs 35, 36
and 38; Alabadleh v Canada (Minister of Citizenship and
Immigration), 2006 FC 716 at paragraph 6; Gitxsan Treaty Society v Hospital
Employees’ Union, [2000] 1 FC 135 (FCA)).
[31]
The
respondent argues, in contrast to Mr. Fenek, that the IRB considered the fact
that the Fenek family knew someone who was killed by a group of terrorists but
correctly found that this fact does not prove that the risk alleged by Mr. Fenek
is personalized.
[32]
The
respondent states that it is settled case law that it is up to claimants to
establish that they have a well founded fear; this analysis must be carried out
prospectively (see Chan v Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593 at paragraphs 119‑120 and 148-151; Llorens Farfan
v Canada (Minister of Citizenship and Immigration), 2011 FC 123
at paragraph 13; Zeng v Canada (Minister of Citizenship and
Immigration), 2009 FC 466 at paragraph 31).
[33]
It
appears, in particular from the wording in subparagraph 97(1)(b)(ii) of
the IRPA, that personalized risk is an essential element of any claim based on
that provision. The jurisprudence of this Court (see Prophète, above, at
paragraphs 7 and 10 and Innocent v Canada (Minister of
Citizenship and Immigration), 2009 FC 1019 at paragraphs 66-68) confirms this.
[34]
In
this case, the IRB analyzed Mr. Fenek’s fear that was based on his refusal to
comply with the demands of a terrorist group in Algeria. The respondent
emphasizes that the IRB found that that was a generalized risk no different
from that which merchants or even the entire Algerian population face. The
respondent emphasizes that Mr. Fenek himself testified that “all merchants
could be targeted, like his brother’s friend was, to obtain what these
individuals needed” (see paragraph 23 of the IRB decision).
[35]
The
respondent agrees with the remarks of the Court in Perez v Canada (Minister
of Citizenship and Immigration), 2010 FC 345. In that decision, the Court emphasized
the following at paragraph 39: “ . . . ‘a generalized risk could be one
experienced by a subset of a nation’s population thus, membership in that
category is not sufficient to personalize the risk’. In this case, the
applicant could not personalize his risk beyond membership to the subgroup of
young men who are recruited to become members of gangs in Honduras” (the
respondent also cites Acosta v Canada (Minister of Citizenship and
Immigration), 2009 FC 213 at paragraphs 13-16 and Carias v Canada
(Minister of Citizenship and Immigration), 2007 FC 602).
[36]
The
respondent also maintains that Mr. Fenek was targeted only because of his
status as a restaurateur.
[37]
Alternatively,
the respondent argues that there is still a general terrorist threat in Algeria.
Thus, even if Mr. Fenek is targeted, there is still a generalized risk that the
entire Algerian population must face.
[38]
Regarding
Mr. Fenek’s allegations that he suffers from psychological problems, the IRB
considered this, but correctly found that this evidence did not affect the outcome
of the decision.
VI. Analysis
·
Did
the IRB err by characterizing the risk Mr. Fenek faces in Algeria as
generalized and by finding that he would not be subject to an unusual risk if
he were to return to his country of origin?
[39]
The
Court notes the soundness of the IRB’s analysis by virtue of section 96 of the
IRPA and acknowledges the fact that Mr. Fenek does not challenge this.
[40]
It
is clearly established that, when subparagraph 97(1)b)(i) applies,
“[t]he examination of a claim under [this subparagraph] of the Act necessitates
an individualized inquiry, which is to be conducted on the basis of the
evidence adduced by a claimant ‘in the context of a present or prospective
risk’ for him (Sanchez v. Canada (Minister of Citizenship and Immigration),
2007 FCA 99 at paragraph 15)” (see Prophète, above, at paragraph 7).
[41]
Furthermore,
in Vickram v Canada (Minister of Citizenship and Immigration),
2007 FC 457 at paragraph 16, “[after] [h]aving found that Mr. Vickram’s fear
had no nexus to the Convention and that he was at no greater risk of criminal
activity than the general population, there was no need for the Board to
determine whether the state could nevertheless protect him.” Thus, the Court
must only determine whether the IRB properly applied subsection 97(1) of the
IRPA pursuant to Prophète and whether it reasonably found that Mr. Fenek
is not personally at risk of persecution by the said terrorists in Algeria.
[42]
At
paragraph 23 of its decision, the IRB wrote the following:
The fact that the claimant was personally targeted
in this ransom demand does not necessarily mean that the risk to which the
claimant was subjected is personal or is different from the risk faced by other
Algerian citizens, within the meaning of 97(1) of the IRPA. This does not mean
that other merchants or former merchants like him would not be subjected to
this risk. (See paragraph 23 of the IRB decision.)
[43]
The
IRB relied on Prophète v Canada (Minister of Citizenship and
Immigration), 2008 FC 331 (Prophète (first instance)), upheld by the
Federal Court of Appeal. In that case, Madam Justice Tremblay-Lamer cited
the remarks of Madam Justice Snider in Osorio v Canada (Minister of
Citizenship and Immigration), 2005 FC 1459 at paragraph 26, which specifies
the following: “ . . . I can see nothing in s. 97(1)(b)(ii) that requires the
Board to interpret ‘generally’ as applying to all citizens. The word
‘generally’ is commonly used to mean ‘prevalent’ or ‘widespread’”. She also
wrote the following: “Parliament . . . chose to include the word ‘generally’ in
s. 97(1)(b)(ii), thereby leaving to the Board the issue of deciding
whether a particular group meets the definition” (see paragraph 19 of Prophète
(first instance)).
[44]
Therefore,
the IRB correctly found, in our opinion, that Mr. Fenek was targeted by the
terrorists in his capacity as restaurateur, thus being a member of the merchant
class in Algeria. He therefore cannot avail himself under subparagraph 97(1)(b)(ii)
of the IRPA. Mr. Fenek faces a generalized risk that extends to all merchants
in Algeria.
[45]
The
IRB also believed that Mr. Fenek did not establish a future risk on a balance
of probabilities should he return to Algeria. It wrote the following:
[21] The
claimant testified that, since he left, none of his family members have been
assaulted by these individuals and, furthermore, his business had been rented
to someone and that he has not heard anything about that person.
[22] The [IRB] wanted to know why these individuals
would still be searching for him should he return to his country. The claimant
testified that it was because he was more of a target for refusing to cooperate.
(See paragraphs 21 and 22 of the IRB decision.)
[46]
A
close reading of the decision and the hearing transcript dated March 10, 2011, leads
us to find that the IRB’s decision that Mr. Fenek belonged to the subset of
Algerian merchants and that he would not be personally subjected to a risk of
torture or to a risk to his life or to a risk of cruel and unusual treatment or
punishment if he were to return to his country of origin is reasonable and
falls within the range of possible outcomes. The IRB relied on, among other
things, the fact that “[t]he claimant himself stated that all merchants could
be targeted, like his brother’s friend was, to obtain what [the terrorists]
needed” (see paragraph 23 of the IRB decision).
[47]
The
Court rejects Mr. Fenek’s position that it [translation]
“is important to differentiate this situation from situations where bandits and
criminals show up at businesses or approach merchants demanding that they pay money
because of their specific status as merchants” (see paragraph 31 of the Applicant’s
Supplemental Memorandum). The circumstances that led to the extortion acts
differ but still arise from the fact that Mr. Fenek belongs to the merchant group.
Thus, the systematic nature of the extortion acts towards Mr. Fenek
demonstrates that he was not threatened randomly.
[48]
Even
if Mr. Fenek’s twin brother knew a merchant who was killed by terrorists, that
fact does not justify that all Algerian merchants are at risk.
[49]
In
Guiffaro v Canada (Minister of Citizenship and
Immigration), 2011 FC 182, Chief Justice Crampton clearly established
the Court’s current approach to claims under subparagraph 97(1)(b)(ii) of
the IRPA. Justice Crampton wrote the following:
[33] Given the frequency with
which claims such as those that were advanced in the case at bar continue to be
made under s. 97, I find it necessary to underscore that is now settled law
that claims based on past and likely future targeting of the claimant will not
meet the requirements of paragraph 97(1)(b)(ii) of the IRPA where (i) such
targeting in the claimant’s home country occurred or is likely to occur because
of the claimant’s membership in a sub-group of persons returning from abroad or
perceived to have wealth for other reasons, and (ii) that sub-group is
sufficiently large that the risk can reasonably be characterized as being
widespread or prevalent in that country. In my view, a subgroup of such persons
numbering in the thousands would be sufficiently large as to render the risk
they face widespread or prevalent in their home country, and therefore
“general” within the meaning of paragraph 97(1)(b)(ii), even though that
subgroup may only constitute a small percentage of the general population in
that country. (See paragraph 33 of Guiffaro.)
[50]
In
this case, the evidence before the IRB demonstrates, unquestionably, that Mr.
Fenek is a member of the Algerian merchants, which clearly justifies the IRB’s
finding.
VII. Conclusion
[51]
The
IRB decision concerning the issue of Mr. Fenek’s generalized risk in Algeria is
reasonable in this case. The application for judicial review is therefore
dismissed.
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