Date:
20121121
Docket:
IMM-8575-11
Citation:
2012 FC 1341
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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ABDELKADER KEBCHE
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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 and facts
[1]
This
is an application for judicial review by the applicant Abdelkader Kebche, a
citizen of Algeria, against the decision rendered on October 28, 2011, by
a member of the Refugee Protection Division (the panel) that he was not a
Convention refugee or a person in need of protection.
[2]
The
applicant testified that the people he is afraid of are members of the Salafist
Group for Preaching and Combat, now known as Al-Qaeda in the Islamic Maghreb
(the Group), because he refused to finance its activities and reported the
Group to the authorities.
[3]
The
panel finds the applicant credible and it follows that he established, on a
balance of probabilities, the main allegations supporting his application but
did not establish a relationship between the harm feared and a Convention
ground nor did he demonstrate that he would face a risk to his life or be at
risk of cruel and unusual treatment or punishment .
[4]
The
panel summarizes the alleged facts found in the applicant’s Personal
Information Form (PIF) as follows:
The claimant had been the owner of a mid-sized
construction company since 2004. In October 2007, a group of masked
men claiming to be helping the Mujahidin extorted him for 500,000 Algerian
dinars. About 18 months later, in March 2008, a group of men showed up again
and demanded 800,000 dinars, which the claimant refused to pay. He was taken to
a deserted spot in the mountains, where he was tortured for three days. On
March 20, he said he would make the payment if they released him and
allowed him to collect the money from friends, which they did. The claimant immediately
informed the national police and then fled to Algiers, the capital,
approximately 200 km from his home in Chleff. Taking advantage of an
international forum being held in the city of Québec, he obtained a business
visa on April 14, 2008, and travelled to Canada on May 16, 2008. Three
months later, he claimed refugee protection, alleging a fear of being killed if
he returned to his country.
[Emphasis added]
II Panel’s decision
[5]
The
panel based its decision on three reasons:
a.
The
applicant is not a Convention refugee; he has not established that section 96
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA),
applied to the circumstances of his case. Section 96 of the IRPA states:
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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,
(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
(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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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 :
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;
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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b.
The
applicant is not a person in need of protection under section 97 of the
IRPA because he is covered by subparagraph 97(b)(ii); the
risk he faces is a generalized risk. Section 97 of the IRPA 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.
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
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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.
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
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[Emphasis
added]
c.
Alternatively,
the applicant has not established that there was no possibility of an internal
flight alternative (IFA).
(a) The
criterion for assessing an IFA
[6]
I
find it useful to first address the issue of whether the applicant demonstrated
that, on a balance of probabilities, there was no IFA for him in Algeria.
[7]
It
is well established that the existence of an IFA is in itself sufficient to reject
a refugee claimant (see Judge v Canada (Minister
of Citizenship and Immigration), 2004 FC 1089, and Ali v Canada (Citizenship
and Immigration), 2006 FC 1360, para 2).
[8]
It
is also well established that the existence of an IFA has two aspects: (1) Is
there a serious possibility that a claimant may be persecuted in the suggested
IFA locations? and (2) Would it be unreasonably harsh in all the circumstances
for the claimant to move to an IFA location? (See Chowdhury v Canada (Minister
of Citizenship and Immigration), 2008 FC 18.)
[9]
Justice
O’Keefe stated in Sokol v Canada (Citizenship and Immigration),
2009 FC 1257, at paragraph 38:
Did the Board err in determining that an IFA was
available?
The test to be applied in determining whether there
is an IFA is two-pronged: (i) there is no serious possibility of the claimant
being persecuted or subjected, on a balance of probabilities, to persecution or
to a danger of torture or to a risk to life or of cruel and unusual treatment
or punishment in the proposed IFA area, and (ii) conditions in the IFA area
must be such that it would not be unreasonable, in all the circumstances, for
the claimant to seek refuge there (see Thirunavukkarasu v Canada (Minister
of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589,
[1993] FCJ No 1172 (CA) (QL)).
[10]
Justice
Boivin in Guerilus v Canada (Citizenship and Immigration), 2010 FC
394, stated the following at paragraph 20:
The applicants had the onus of demonstrating why, on
a balance of probabilities, there is a serious possibility that they would be
persecuted in another part of the country where an internal flight alternative
might be available (Thirunavukkarasu). The applicants must meet a very
high threshold in order to show that the IFA is unreasonable. As explained in Ranganathan
v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164,
266 NR 380 (FCA) below at paragraph 15,
“… It requires nothing less than the existence of
conditions which would jeopardize the life and safety of a claimant in
travelling or temporarily relocating to a safe area. In addition, it requires
actual and concrete evidence of such conditions. The absence of relatives in a
safe place, whether taken alone or in conjunction with other factors, can only
amount to such condition if it meets that threshold, that is to say if it
establishes that, as a result, a claimant’s life or safety would be jeopardized
…”
(b)
The panel’s decision on the IFA:
[11]
According
to the panel, the applicant was asked to list the reasons he could not “relocate
to a big city elsewhere in the country where, according to the documentary
evidence, the security forces are essentially able to restrain terrorist
activities, despite some dramatic attacks. The panel suggested the city of
Annaba. In response, the claimant cited the terrorists as an obstacle. They
allegedly told his brother that they intended to bring back the claimant’s
head, no matter where he hid. He stated that they have a network that spans
the country and even extends outside the country. They always manage to find
the person they are looking for, which is why he fears that he will eventually
be tracked down and killed, no matter where he goes in the country. He
described … the experiences of other people, who were decapitated for betraying
the Terrorists. As an example, he mentioned the director of the teaching
college in his village, who fled to his sister’s home in the south of the
country and was found and killed four or five months later in 2005.”
[12]
The
panel stated that when the applicant was asked to explain what interest they
would have in searching for him throughout the country then deploying resources
to eliminate him if they ever found out where he was living, the applicant
answered “their credibility.” In their view, he betrayed them, which is motive
enough to explain a death sentence, sooner or later.
[13]
However,
the panel felt that
…[T]he Terrorists would have other concerns than to
be interested in the claimant, in Annaba, today. In other words, the claimant
did not establish that they would have an interest in tracking him down and
targeting him in that city. In arriving at this determination, the panel took
into account the overall context of terrorism in the country, as well as the
claimant’s particular circumstances, including the following:
i.
The
fact that the city of Annaba is located outside the usual areas of operations
of the terrorist groups. For one thing, most terrorist attacks occur in rural
areas or outside the major cities. For another, the areas most affected by
these activities are Kabylia and the southern part of the country. In arriving
at this finding, the panel took into account the fact that the media do not
report all incidents involving terrorist groups. However, given the multitude
of sources included in the documentary evidence referred to in this analysis,
the panel is of the opinion that the documentary evidence as a whole supports
the factual basis for this finding.
ii.
The
fact that Annaba is one of the largest cities in the country, with a population
of several hundred thousand people.
iii.
The
distance of several hundred kilometres between Annaba and the place where the
claimant was living, in Chleff.
iv.
The
fact that the claimant has never had any association with that city.
v.
The
fact that the claimant did not establish that he has a particularly significant
profile or a profile that—because of his family or other factors, including the
fact that the family is known in the small town where they live—would make him
easy to find in a country of over 30 million people or would make him
valuable enough to the Terrorists to be worth the effort of tracking him down.
vi.
The
fact that the claimant did not establish that he has a particular profile in
Algeria that would plausibly justify the Terrorists pursuing him. On this subject,
the documentary evidence states that i) these groups regularly extort people in
order to finance their operations, and ii) their primary targets are the
authorities, and the security forces in particular, with whom they are at war
(whereas the claimant did not even perform his military service).
vii.
The
fact that the claimant did not establish that he presents a threat to the
Terrorists or that he is an obstacle to them achieving their political or
ideological aims.
viii.
The
fact that the Terrorists do not receive significant support from the population
and that the claimant is, in fact, one person among thousands of others who are
or have been in conflict with these terrorist groups because they refused to
give in to their demands or made a report about them.
ix.
The
deterrent of the police authorities, who are generally described as being
effective at maintaining order, despite government corruption problems.
x.
The
reduced striking power of the terrorist groups, particularly in the major
cities, as a result of the authorities’ successful campaign against them. The
panel is aware that the terrorists continue to be a significant concern in
Algeria. They continue to commit attacks, regularly and primarily targeting
Algerian authorities, in particular the security forces who combat them.
However, although domestic terrorism has not been completely eliminated, all
the documentary evidence reports that the authorities have significantly
reduced the capacity of the terrorist groups to operate in the country, in
particular in the major cities like Annaba. These results have been achieved in
part because of operations led by the security services and because of the
policy of reaching out to those willing to renounce terrorism. In recent years,
the government has committed firmly and unequivocally to combatting these groups,
and its efforts have produced a substantial improvement in the country’s
security situation since the civil war from 1992 to 2000. This improvement can
be seen in the decrease in incidents and casualties and in the markedly
narrower geographical distribution of incidents. Considerable resources have
been deployed in this fight, and the country, which is a leader in the region
in this respect, is making substantial efforts to maintain national security.
Moreover, it is achieving concrete results: those suspected of belonging to a
terrorist group are arrested, detained, charged and brought to trial. Others
are killed in clashes with security forces—nearly 500, according to some
sources, in 2010.
xi.
The
fact that, despite the changes in the Maghreb region, the claimant did not
establish that the country is heading toward a situation where its authorities
would become disinterested in combatting, or would not be able to effectively
combat, the terrorist threat.
xii.
The
time that has elapsed since the last time the terrorists showed any interest,
in mid-2008, over three years ago.
xiii.
The
fact that the terrorists have shown no interest in the claimant’s family since
that time, although the family is still living in the same home.
[14]
The
panel found
… that the claimant did not discharge his burden of
establishing that he would face a serious possibility of persecution on a
Convention ground if he were living in Annaba, or a risk to his life, a risk of
cruel and unusual treatment or punishment, or a danger of torture should he
relocate there today.
[15]
As
to the second aspect of the IFA analysis, the panel pointed out that Mr. Kebche
raised no problems other than his fear of the terrorists; he did not show that
the town of Annaba would be an unrealistic, inaccessible or objectively
unreasonable place for him.
[16]
The
panel also noted the high rate of unemployment, a culture of clientelism and
expensive housing that feed into the discontent of young people. However, it
noted the following:
However, this documentary evidence does not
establish that these obstacles cannot reasonably be overcome, in particular by
a person with the claimant’s profile. He does not belong to a vulnerable or
marginalized segment of society. He is a 32-year-old unmarried Muslim man with
no children; he speaks several languages, has 14 years of formal
education, has work and business experience and has a large family in the
country. He did not allege or establish that he is physically or mentally
unable to work, and the panel found him to be an intelligent and resourceful
man.
[17]
The
panel ended its decision by writing:
[20] For all the foregoing reasons, even if the
panel were to accept that the claimant had established a well founded fear,
risk or threat in relation to living in his city of origin (which is not the
case), it is of the opinion that he has not established the absence of an
IFA in his country.
[Emphasis added]
III. Parties’ arguments regarding
the IFA
(a) Those of the
applicant
[18]
The
applicant submitted that he had no IFA in Algeria and that the members of the
Group, a large terrorist organization, would find him anywhere in Algeria. He
compared Annaba to the capital Algiers, where he sought refuge after leaving
his region.
[19]
He
pointed out that Algiers, as the seat of government, appeared to be the safest
since the largest number of military and police are located there. The
documentary evidence shows that Algiers is the safest city in Algeria. In his
affidavit filed in support of his application for judicial review, he stated
that he was afraid in Algiers, faced with the large number of Islamists and [Translation] “I was afraid because I had
reported the Group”. The applicant stated that if he could not relocate to the
capital without fear of persecution, he could not relocate to Annaba either.
[20]
The
applicant stated that it was important that the RPD consider the nature of the
persecuting group—an extremely violent and mobile terrorist group—and it is
difficult to reconcile the fact that the RPD’s could acknowledge the truth of
the applicant’s allegations with the refusal to give him protection based on speculation
that their interest and motivation cannot be understood.
(b) Those of the
respondent
[21]
The
respondent argued that the defendant had the burden of showing, on a balance of
probabilities, that he had a serious and personal risk of being persecuted
everywhere in Algeria and that it was objectively unreasonable for him to avail
himself of an internal flight alternative. He referred to Guerilus at
paragraph 20, which I have already reproduced in these reasons.
[22]
He
noted that the applicant did not submit any objective evidence that he would be
threatened in Annaba. The fact that the panel found him credible is not
sufficient to deny the existence of an IFA.
IV. Analysis and conclusion
(a) Standard of
review
[23]
The
standard of review is reasonableness since the issue of the existence of an IFA
in this case is based on an assessment of the facts by the panel; Dunsmuir v
New Bruswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para 47:
Reasonableness is a deferential standard animated by
the principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin
of appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. 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.
(b) Conclusion
[24]
I
find that this application for judicial review must be dismissed. The applicant
had the burden of showing that the panel had erred in assessing the evidence
before it when it found the existence of an IFA in Annaba. The comparison of
Annaba with Algiers does not help his case. There was no evidence before the
panel that the Group was looking for him in Algiers when he was living there. I
find as the panel saw it; his fear of being found in Annaba was not objectively
reasonable. Moreover, the panel was aware of the nature of the Group.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. No question of general importance was proposed.
“François Lemieux”
Certified true
translation
Catherine Jones,
Translator
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