Date:
20121121
Docket:
IMM-8365-11
Citation:
2012 FC 1348
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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BRAHIM CHABIRA
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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]
Brahim
Chabira is a citizen of Algeria. The decision that he is challenging by this
application for judicial review is that of senior immigration officer Judith
Gaumont dated November 2, 2011, refusing his application for permanent
residence in Canada on humanitarian and compassionate grounds based particularly
on his establishment in Canada between 1989 and 1994 and between 1997 and today,
and the risks of returning to Algeria associated with the Chafia family and associated
with the Département du renseignement de la sécurité (DRS) [Department of
Information and Security] in Algeria.
II. The Facts
[2]
The
applicant first entered Canada on June 6, 1989, on a visa.
[3]
In
June 1992,
he claimed refugee protection; he feared the Chafia family, who was threatening
him because he had a relationship with Samira Chafia. He left Canada in 1995 to
live in Algeria after his claim with the Immigration and Refugee Board (IRB) in
1994 failed and his application for leave with the Federal Court was refused on
February 28, 1995.
[4]
In
1997, Mr. Chabira returned to live in Canada, but without status. He
worked illegally in Canada until he obtained a work permit in 2004.
[5]
In
2004,
he filed an initial application for permanent residence on humanitarian and
compassionate grounds (H&C application), which was refused because it was
incomplete.
[6]
On
March 26, 2009, he filed a second H&C application. On November
2, 2011, immigration officer Gaumont refused his second application.
III. The impugned decision
[7]
The
officer introduced her reasons with the following:
[translation]
The applicant is asking for an exemption from being a
member of one of the prescribed classes in order to file his application for
permanent residence from inside Canada on humanitarian and compassionate
grounds. The applicant has the burden of proving that his personal situation is
such that the hardship that would arise from a refusal of that exemption application
is unusual and undeserved or disproportionate.
It is important to point out that, as specified in
Manual IP5 on applications on humanitarian and compassionate grounds, all favourable
humanitarian and compassionate assessments are an exceptional response to a
specific set of circumstances.
(a) His
establishment
[8]
The
officer’s reasons on the applicant’s establishment can be summarized as follows:
1.
She
recognized that Mr. Chabira has been in Canada for close to 15 years and that
he has a good civil record in Canada (no charges pending, no convictions);
2.
She
noted that Mr. Chabira documented his employment as a restaurateur between 2004
and 2008; his training as a taxi driver in 2006; that he has performed that job
ever since; and that he files his tax returns faithfully;
3.
She
found, however: [translation] “. .
. that the applicant had low annual employment earnings and that he experienced
several periods of unemployment over the last ten years”;
4.
She
acknowledged that employment prospects in Algeria are limited, but added the
following: [translation] “However,
even though Mr. Chabira says that he fears hardship in Algeria, he has not
demonstrated in a satisfactory manner that his stay in Canada has enabled him
to be immune to such hardship”;
5.
She
attached little weight to Mr. Chabira’s argument that he is a member of
Canadian society by playing soccer and by showing interest in local activities.
According to the officer: [translation]
“That allegation is not supported by evidence, such as a letter from his soccer
association or from acquaintances who attended activities in the community with
the applicant”;
6.
The
applicant argues that he has several friends and even family in Canada. The
officer noted the letters of support to that end attesting to his qualities as
a friend and as a good worker. However, she [translation]
“found, however, that his father, mother, brothers and sisters are all abroad, and
most reside in Algeria. The only family tie that the applicant seems to have in
Canada is a cousin. However, the evidence does not satisfactorily establish the
said cousin’s identity and status in the country, or even her relationship with
Mr. Chabira”;
7.
As
for the applicant’s argument that he has been gone from Algeria too long to
return there, the officer was of the opinion that he did not support that
statement with evidence and added the following: [translation] “Moreover, since he has spent more than half of
his life, including part of his adult life, in his country of origin and since
most of his family is still there, I believe that the applicant would not be
without resources should he return there”; and
8.
She
made the following finding on the establishment criterion: [translation] “In light of the evidence
in the applicant’s record, I am not convinced that the hardship associated with
Mr. Chabira’s establishment in Canada is, in itself, sufficient to justify an
exemption on humanitarian and compassionate grounds”.
(b) The risks
of return
[9]
Before
assessing the two different risked raised by the applicant, that is, the risks associated
with the Chafia family and those associated with the DRS, the officer wrote the
following:
[translation]
It is important to point out that humanitarian and
compassionate assessments are different from pre-removal risk assessments. They involve
assessing all of the elements in the application and determining whether risk
factors or factors other than risk could amount to unusual and undeserved or
disproportionate hardship.
(i) Risks associated
with the Chafia family
[10]
According
to the officer, the applicant maintains that he is at risk from the Chafia family
after dishonouring them by having sexual relations with one of their daughters.
She noted, however, that, in 1994, the Refugee Protection Division found that his
testimony was [translation] “not
trustworthy” and that his account was [translation]
“not credible”.
[11]
The
officer found that the applicant added a new element in support of his fear; the
kidnapping of his brother on June 20, 1995, a kidnapping in reprisal against
the applicant further to [translation]
“business between him and a family, two brothers of which are terrorists”. For
several reasons, the officer was of the opinion that Mr. Chabira did not discharge
his burden of proving, in a probative manner, that he would still be in danger
of the Chafia family, including the fact that Mr. Chabira did not mention his
brother’s kidnapping in the other applications and in his PRRA application and
did not state that he experienced problems with the Chafia family even though
he lived in Algeria from 1995 to 1997.
(ii) The
risks associated with the DRS
[12]
The
danger from the DRS that is alleged by Mr. Chabira is based on the fact that he
witnessed an incriminating conversation between members of the DRS, including
his friend Karim, and that he is still wanted for that today.
[13]
The
officer wrote the following:
[translation]
I carefully read the applicant’s affidavit. Even
though I attach some weight to the statements made under oath by Mr. Chabira, I
am of the opinion that that document is not sufficient, in itself, to demonstrate
the alleged facts in a probative manner.
I looked at the letters from his two brothers,
Lounas and Messaoud Chabira. I note that the letter dated 2009 from his brother
Lounas states that [translation]
“strange people” were still after the applicant, without, however, more
details. The letter is short and few details were provided. It does not specify
how long Mr. Chabira has been sought, or the frequency with which individuals
made inquiries about him and his family. Furthermore, the applicant submitted a
copy, and not the original, of the letter, and did not submit a proof of
mailing, such as an envelope, proving that it came from Algeria.
The letter from his brother Messaoud mentions that
the applicant [translation] “still
receives threats from strangers”. Like in the other letter, the author does not
indicate when the threats started or the content of the threats. The letter
states that, in November 2010, two individuals called out to a neighbour to ask
him questions. I note that there is no evidence in the record from the said
neighbour corroborating those facts.
[14]
The
officer made the following finding:
[translation]
In light of the
foregoing, I can attach only little probative value to the letters from the
applicant’s brothers given their content, which seems vague and does not
demonstrate in a satisfactory manner that the applicant is still actively wanted
by the DRS and is still in danger from its members.
The applicant submitted various documents on the
questionable practices of the DRS and its non-respect for human rights in
Algeria. Certainly, I acknowledge by the documentation that was provided and
consulted that DRS members used unorthodox methods to fight terrorism. In wartime,
they kidnapped, tortured and killed individuals suspected of terrorism,
attributed to Islamist groups serious crimes which were in reality their actions
and eliminated those who knew too much. However, it seems today that those
methods used by the DRS have been very rare since the end of the civil war, as stated
in U.K. Home Office’s 2011 Country of Origin Information Report; Algeria.
It seems that disappearances, secret detention, torture and arbitrary killings
by Algerian authorities are uncommon in Algeria today. The documents submitted
in evidence by the applicant also refer to events that occurred for the most
part during the 1990s, which is why I attach little probative value to them. Those
documents also are not related to the applicant’s personal history.
[15]
The
officer added and found the following:
[translation]
Certainly, the DRS continues to hold some political
and security powers in Algeria. Today, as discussed in the documentation
provided by the applicant, individuals who continue to be at risk of harm, such
as the harm stated above, are those suspected of terrorism. However, Mr. Chabira
has not demonstrated that he was in such a category of persons. I am therefore
of the opinion that Mr. Chabira did not submit satisfactory evidence that
he is at risk of the now uncommon practices of the DRS.
Thus, considering the insufficiency of evidence in
support of Mr. Chabira’s allegations and considering that the current
objective evidence does not corroborate them, I am of the opinion that the
applicant has not discharged his burden of proving a personalized risk that
would constitute unusual and undeserved or disproportionate hardship if he were
to return to Algeria.
(c) Risks
as a failed refugee claimant and risks associated with the country’s general
insecurity
[16]
The
applicant alleges that the DRS is suspected of mistreating failed refugee
claimants when they enter the country. The officer rejected the applicant’s
claim. She was of the view that persons suspected of terrorism are at risk and
that the applicant did not submit any evidence that he was part of such a group.
[17]
Moreover,
the officer noted the general insecurity in Algeria, but noted that it has
improved for all Algerians and that it is a generalized risk for all Algerians,
not just the applicant.
IV. The arguments
(1) Applicant’s
arguments
[18]
The
applicant argues that the officer (1) erred in her analysis of the evidence in
the record; (2) erred by not calling the applicant to an interview.
[19]
The
applicant’s first argument concerns the 2011 report on Algeria by the UK Home Office.
Although the officer recognized that the DRS kidnapped, tortured and killed
people who had confidential information and people suspected of terrorism during
the war, she determined from the report that those measures have not been used
since the end of the war. However, the applicant contends that the officer
failed to mention other relevant elements in the report. In particular, while those
measures are no longer being used in most cases, according to some sources, that
treatment is still used on people suspected of terrorism. For them, there are still
arbitrary arrests and no right to a fair trial. Furthermore, detention
centres for those individuals are controlled by the DRS and torture and other
cruel treatment are still practiced secretly. Finally, the report indicates
that impunity for DRS forces is still a problem.
[20]
By
disregarding that information in the report, the applicant believes that the
officer committed a reviewable error. Furthermore, the applicant
believes that the officer erred by criticizing him for failing to submit proof
that he would be in danger of retribution from the DRS. The applicant
believes that that was an impossible burden to meet because obtaining a confirmation
from the DRS that he is wanted by that agency is impossible.
[21]
The
second argument raised by the applicant is based on section 167 of the IRPA
Regulations. In her reasons, the officer stated that the applicant did not
mention in his initial H&C application or in his PRRA application that his
brother was kidnapped in 1995 and that she had no information as to why that
was omitted. The applicant believes that those criticisms cast doubt on his
credibility.
[22]
According
to the applicant, because of her doubts, she should have called him to an
interview in order to obtain more information on his brother’s kidnapping. The
applicant raises section 167 of the Immigration and Refugee
Protection Regulations (SOR/2002-227) (IRPR) and argues that,
according to that section, a hearing is possible if there is doubt as to the
applicant’s credibility. The applicant believes that it was impossible to
submit information to corroborate his story given that he was not made aware of
those doubts.
[23]
Section
167 of the Immigration
and Refugee Protection Regulations (SOR/2002-227) (IRPR) reads as
follows:
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167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
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167. Pour
l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
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(a) whether there
is evidence that raises a serious issue of the applicant's credibility and is
related to the factors set out in sections 96 and 97 of the Act;
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a) l’existence d’éléments de preuve relatifs aux éléments mentionnés
aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce
qui concerne la crédibilité du demandeur;
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(b) whether the
evidence is central to the decision with respect to the application for
protection; and
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b) l’importance de ces éléments de preuve pour la prise de la
décision relative à la demande de protection;
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(c) whether the
evidence, if accepted, would justify allowing the application for protection.
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c) la question de savoir si ces éléments de preuve, à supposer
qu’ils soient admis, justifieraient que soit accordée la protection.
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(2) Respondent’s
arguments
[24]
The
respondent cites Herrada v Canada (Minister of Citizenship and Immigration),
2006 FC 1003 at paragraph 49 and Lee v Canada (Minister of
Citizenship and Immigration), 2005 FC 413 at paragraph 13:
49 It
is up to an immigration officer to assess the relevant factors in an
application based on humanitarian and compassionate considerations, and when
all issues have been properly examined by the decision-maker, this Court must
not reassess the evidence. A decision rendered on an application based on
humanitarian and compassionate considerations is largely discretionary, and
Parliament has entrusted this discretion to the Minister or his delegate.
13 Once
again, I want to reiterate the fact that this Court cannot lightly interfere
with the discretion given to immigration officers. The H & C decision was a
fact driven analysis, requiring the weighing of many factors. I find that the
immigration officer considered all of the relevant and appropriate factors from
a humanitarian and compassionate perspective, and did not commit any errors
which would justify this Court's interference.
[25]
The
respondent notes that the applicant does not challenge the officer’s assessment
of the evidence concerning his degree of establishment and does not challenge the
officer’s assessment of the evidence concerning the risk associated with the Chafia
family as well as risks as a failed refugee claimant and risks associated with the
country’s general insecurity. According to the respondent, the applicant raises
only two issues: (1) the officer’s analysis of the evidence in the record on
the risked associated with the DRS; and (2) the officer’s failure to call the
applicant to an interview.
[26]
The
respondent submits that those two arguments are without merit.
[27]
According
to the respondent, the 2011 report by the UK Home Office mentions that the DRS
continues to make arbitrary arrests with complete impunity. However, the report
excerpt cited by the respondent in his memorandum specifies that the DRS continues
to arrest people suspected of terrorism, a fact that the officer fully
acknowledged by finding that the applicant had not demonstrated that he was in
such a category.
[28]
According
to the respondent, the officer was not required to call the applicant to an
interview for two reasons: (1) section 167 of the IRPR does not apply to
applications under section 25 of the Immigration and Refugee Protection
Act (SC 2001, c 27) (IRPA); and (2) section 167 of the Regulations
explicitly states that it applies only to paragraph 113(b) of the
Act, which concerns pre-removal risk assessment applications only, which was
also confirmed by Justice Shore in Doumbouya (Doumbouya v Canada
(Minister of Citizenship and Immigration), 2007 FC 1186 (Doumbouya)).
[29]
Furthermore,
the respondent submits that the officer’s finding does not concern the
applicant’s lack of credibility, but the insufficiency of the evidence.
V. Analysis and
conclusions
(a) The
standard of review
[30]
The
first issue raised by the applicant concerns the panel’s assessment of the
evidence before it. The standard of review that applies is reasonableness. The
Supreme Court of Canada explained reasonableness at paragraph 47 of Dunsmuir
v New Brunswick, [2008] 1 SCR 190:
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. [Emphasis added]
[31]
Moveover,
Justice Binnie, in Canada (Citizenship and Immigration) v Khosa, [2009]
1 SCR 339 at paragraphs 4 and 45, draws our attention to paragraph 18.1(4)(d)
of the Federal Courts Act (RSC 1985, c F-7). According to Justice Binnie,
it is clear from that paragraph that Parliament intended administrative fact
finding to command a high degree of deference.
[32]
The
second issue raised by the applicant concerns the interpretation of section 167
of the IRPR. The standard of review is correctness.
(b) Conclusions
[33]
The
officer was not required to call the applicant to an interview for two reasons:
(1) section 167 does not apply to applications under section 25 of
the IRPA, it applies only to paragraph 113(b) of the Act (see Doumbouya,
above); (2) the officer did not base her decision on a lack of credibility on
the part of the applicant but rather on the insufficiency of the evidence with
respect to the risk associated with the Chafia family.
[34]
Second,
the officer did not err in her assessment of the facts. The risks associated
with the DRS are limited to terrorist activities committed in the territory of
the state. The applicant does not match that profile.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed. No question of general importance was proposed.
“François Lemieux”
Certified
true translation
Janine
Anderson, Translator
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