Date:
20120925
Docket:
IMM-2609-12
Citation:
2012 FC 1118
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 25, 2012
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
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REDOUANE BARAKA
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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
ORDER AND ORDER
[1]
The
applicant, Mr. Baraka, is an Algerian citizen and the leader of an organization
called Étoile d’Algérie, a folk cultural and musical troupe. He alleges that he
received death threats by telephone on three occasions in January and February
2009 by reason of his artistic activities. He arrived in Canada on June 9, 2009,
and claimed refugee protection on June 22, 2009.
DECISION UNDER
REVIEW
[2]
Mr.
Baraka is seeking judicial review of the decision by the Refugee Protection
Division (RPD) that rejected his refugee claim on the ground that he was not a
Convention refugee or a person in need of protection. The RPD did not call into
question the applicant’s credibility. The determinative issue was state
protection.
[3]
The
RPD was of the opinion that artists do not constitute a social group under
section 96 of the Immigration and Refugee Protection Act (IRPA). That
seems to indicate that Mr. Baraka’s claim was only considered under subsection 97(1)
of the IRPA, which reads as follows:
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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
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(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,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate health
or medical care.
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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 :
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;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
(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,
(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,
(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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[4]
The
focus of the RPD’s analysis was on the availability of state protection. The
RPD pointed out that the evidence submitted by the applicant was not sufficient
to establish the inadequacy of the state protection and found that the
applicant failed to rebut the presumption of state protection in Algeria.
ISSUES
[5]
The
applicant submits the following:
a. The
RPD’s decision was not supported by sufficient reasons;
b. The
RPD erred in its application of the analysis of fear of persecution based on
membership in the social group of artists or political opinion under section 96
of the IRPA and did not support its decision with sufficient reasons on this
point;
c. The
RPD failed to analyze fear of cruel and unusual treatment or punishment under
subsection 97(1) of the IRPA;
d. The
RPD improperly assessed the possibility of the applicant availing himself of
protection in Algeria by, namely, failing to consider the particular
circumstances of artists in that country and failing to analyze the legislation
and the police forces in Algeria.
ANALYSIS
[6]
Even
without taking into account the Supreme Court’s recent decision in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, [2011] SCJ No 62 (QL), that the validity of
written reasons and the decisions rendered on the basis of those reasons is not
at issue simply because some elements were not included therein, I am convinced
that the reasoning by which the RPD came to its decision is clear and
completely intelligible.
[7]
It
is fair to say that the burden of proof required by section 96 of the IRPA,
which supports the United Nations Convention, differs from that required by
section 97 of that Act. In order
to invoke section 96, it is sufficient that an applicant establishes a serious
possibility of persecution. In order to invoke section 97, the applicant must
demonstrate the existence of a personalized risk, which he or she must
establish on a balance of probabilities (Li v Canada (MCI), 2005 FCA 1,
[2005] 3 FCR 239, [2005] FCJ No 1 (QL)).
[8]
It
is important, however, to read the RPD’s decision as a whole. Notwithstanding
its finding that artists do not constitute a social group under section 96, the
RPD did, however, consider the situation of artists broadly, beyond Mr.
Baraka’s personal situation, and found that “the claimant did not discharge his burden of
establishing a serious possibility of persecution on a Convention ground”.
[9]
Regarding
the protection provided by Algeria, even if it is true that consideration
should be given to the ability of the state to protect its citizens (which,
however, need not be infallible) as well as its willingness to ensure that
protection, the RPD’s assessment of this was not unreasonable.
[10]
It
is important to point out that it always rests on refugee claimants to
establish, on a balance of probabilities, that they cannot avail themselves of
protection in their country of nationality, regardless of whether their claim
was based on section 96 or section 97of the IRPA. As stated by the Federal
Court of Appeal in paragraph 30 of Carillo v Canada (MCI), 2008 FCA 94,
[2008] 4 FCR 636, [2008] FCJ No 399 (QL): “a claimant seeking to rebut the
presumption of state protection must adduce relevant, reliable and convincing
evidence which satisfies the trier of fact on a balance of probabilities that
the state protection is inadequate.”
[11]
In
this case, Mr. Baraka is basing his claim on outdated information. The
situation in Algeria, both in general and for artists in particular, has
significantly improved. In short, the RPD’s decision has the qualities that
make a decision reasonable and falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] SCJ No 9 (QL), at paragraph
47).
ORDER
FOR
THE REASONS GIVEN ABOVE;
THIS
COURT ORDERS that:
1.
The
application for judicial review be dismissed.
2.
There
is no serious question of general importance for certification.
“Sean Harrington”
Certified
true translation
Janine
Anderson, Translator
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