Date: 20110816
Docket: IMM-6451-10
Citation: 2011 FC 998
Ottawa, Ontario,
August 16, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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YOUSF ALASSOULI
(A.K.A. YOUSF AHMAD ABD ALASSOULI)
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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]
This is an
application for judicial review of a decision of the Refugee Protection
Division (“RPD” or “Board”) of the Immigration and Refugee Board dated
September 17, 2010. The RPD refused the applicant’s claim for protection,
finding that he was not a Convention refugee nor a person in need of
protection.
[2]
For the
reasons that follow, I have concluded that the decision of the Board must be
quashed. The Board made critical errors in assessing the evidence, and these
errors had an impact not only on its assessment of the applicant’s credibility,
but also on its finding that the applicant did not rebut the presumption that
Jordan was willing and able to offer him adequate state protection as he failed
to exhaust reasonable remedies.
Facts
[3]
The
applicant, a citizen of Jordan, alleged that he rented
business premises from his brother to run a grocery store. His cousin, Omar,
also rented premises from him in the same building. One of the customers of
the applicant’s grocery store was a woman named Amal Mohammed Salim, a woman
from the Algiza tribe, a different tribe than the applicant’s. Amal accused
the applicant’s cousin Omar of harassing her and told her husband the same
story. Enraged by what he had heard, Amal’s husband, Abdalla, shot and killed
the applicant’s cousin Omar.
[4]
Abdalla is
from the same tribe or clan as the applicant, the Alassouli tribe, although he
appears to be from a different tribe of the applicant’s cousin Omar.
[5]
Tribal
customs and traditions are dominant in Jordan, including the concept of honour
killings, retribution and feuding. It is a serious matter when a person from
one tribe kills a person from another tribe, as was the case with Abdalla and
the claimant’s cousin Omar. Retribution is often sought. To head off a violent exchange as a
result of Omar’s murder, the police called for a cooling-off period and
separated the two feuding groups. Abdalla and his family were moved to the
city of Irbid, in the northern part of Jordan.
[6]
A trial
was held to investigate Abdalla’s role in Omar’s killing. Abdalla’s wife Amal
testified in favour of her husband, to the effect that Abdalla had killed Omar
to protect her honour. The applicant contends that an honour killing would
have been more acceptable to the court than a murder based on another motive.
[7]
When the
applicant testified at the same trial, he offered a different motive for the
killing. He explained that the enmity between Omar and Abdalla’s family
predated the supposed harassment, and originated from a water dispute between
his cousin and Abdalla’s father, both of whom owned tracts of land in close
proximity to one another. After the applicant left Jordan for Canada, the accused Abdalla was
convicted and sentenced to 15 years in prison.
[8]
The
applicant alleges that Abdalla’s family, including his brother Abdulrahim, was
angry at the applicant for offering this incriminating testimony. They
harassed him with threats of violence and murder. Amal’s family also
threatened the applicant, as they were angry with him for having contradicted
Amal with his testimony and thus making her appear dishonest.
[9]
Seeking
protection, the applicant went to the police, who ensured that Abdulrahim
signed an undertaking promising to keep the peace. However, the harassment
continued. Without returning to the police a second time, he sought refuge in Canada.
The impugned decision
[10]
The RPD
rejected the applicant’s claim on the basis of credibility and state
protection. The RPD first noted that there was no nexus to the Convention
definition of a refugee on the basis of the applicant’s membership in a family
group, since vendetta and revenge threats have no nexus to the Convention definition,
citing Bojaj v Canada (MCI) (2000), 194 FTR 315.
[11]
Thus, the
RPD considered whether the applicant personally, and individually, would be at
risk if returned to Jordan and concluded that he would
not. Rather, the RPD found that the evidence suggested that it was more likely
that the applicant’s entire family was at risk, since, to use the applicant’s
language, that is normally the case in “tribal” disputes such as this one.
Thus, the applicant’s allegation that he alone was at risk was disregarded, as it
was not credible.
[12]
Furthermore,
the Board found that on a balance of probabilities, security forces in Jordan would maintain a “security
truce” until the conflict between the two families is resolved. Since the
police had assisted the applicant in compelling Abdulrahim to sign an
undertaking to keep the peace, they likely would have assisted him further, had
he returned to the police to report the continued harassment by Adbulrahim or
the threats made by Amal’s family. Since he failed to do so, he did not rebut
the presumption of state protection.
[13]
The Board
drew two conclusions concerning a letter submitted by the applicant from the
Mayor of the Al Ananbeh clan, which affirmed that the applicant would be in
danger in Jordan until the reconciliation between
the families was achieved. First, it concluded on a balance of probabilities that the
Mayor believes reconciliation will be achieved. Second, it also found
improbable that a mayor would indicate his country’s inability to protect one
of its citizens, given that he also expects reconciliation ceremonies, and
accordingly gave this letter no weight with respect to the applicant’s claim.
[14]
Finally,
the RPD found that one of the police reports filed by the applicant was a false
document, which was submitted to mislead the panel because of a contradiction
between that report and the applicant’s testimony. According to that document,
Mr. Alassouli had reported that Mr. Abdulrahim Mohamed Alassouli, the brother
of the accused, had been searching and inquiring about the applicant’s
whereabouts in order to catch and harm him. However, according to the Board,
the applicant had stated in his narrative that the accused, Abdalla Salim, was
the one accused of shooting Omar and, according to the applicant, was from a
different tribe. Therefore, the Board found that, on a balance of
probabilities, Abdulrahim could not have the same last name as the applicant,
that is Alassouli, as indicated in the police report, which in turn would mean
that this report was a false document.
Issues
[15]
This
application for judicial review raises three issues:
a. What is the applicable
standard of review?
b. Did the Board err in its
assessment of the applicant’s credibility?
c. Did the Board err in coming to
the conclusion that the applicant had failed to rebut the presumption of state
protection, and in evaluating the Mayor’s letter?
Analysis
a)
The standard of review
[16]
The RPD’s
determination of the existence of state protection and its evaluation of the
evidence attract a standard of reasonableness. Accordingly, the Board’s
factual findings on these issues will be upheld so long as they fall within a
range of possible and acceptable outcomes: see Dunsmuir v New Brunswick, 2008 SCC 9, at paras. 47-48
and 51; Muszynski v Canada (MCI), 2005 FC 1075, at paras. 7-8.
[17]
With
respect to issues of procedural fairness, the reviewing Court must determine
whether the decision-maker’s process satisfied the level of fairness required.
This is a question of law and it must be adjudged on a correctness standard:
see Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392, at paras. 54-55.
b) The assessment of the
applicant’s credibility
[18]
As previously
mentioned, the Board rejected the police report in which the applicant
mentioned that Mr. Abdulrahim Mohamed Alassouli, the brother of the accused,
had been searching and inquiring about the applicant’s whereabouts
to catch and harm him, on the basis that it must have been fraudulent. This
document was central to the RPD’s rejection of the applicant’s credibility;
indeed, the RPD decided that the document called into question the entirety of
the applicant’s credibility. The Board arrived at that conclusion because the
surname of the brother of the accused on the report appears to be different
from the name given by the applicant to the accused in his Personal
Identification Form (“PIF”) narrative. The RPD states:
[12] The claimant tendered a police
report which stated, in part, that Mr. Alassouli has reported that Mr.
Abdulrahim Mohamed Alassouli, the brother of the accused, has been searching
and inquiring about the claimant whereabouts in order to catch and harm him.
However, in the claimant’s narrative, he stated that the accused, Abdalla
Salim, was the one accused of shooting Omar and, according to the claimant, was
from a different tribe. Therefore, on a balance of probabilities, I find
Abdulrahim could not have the same last name as the claimant, that is
Alassouli, as indicated in this letter. Therefore, on a balance of
probabilities, I find the claimant has tendered a false document to the Board
in a deliberate attempt to mislead the panel. The Federal Court has held that when a claimant impeaches his
own credibility by tendering a false document, it calls into question the
entirety of the claimant’s credibility. Therefore, on a balance of
probabilities, I find the claimant not to be a credible or a trustworthy
witness and did not suffer the harm alleged.
Applicant
Record, p. 11.
[19]
It is
unclear why the Board believed that Abdalla’s family name was Salim as the
applicant’s PIF only refers to him as Abdalla. The RPD appears to have derived
this conclusion by referring to the accused’s wife’s surname, Salim. However,
this is only a guess as the RPD does not say how it chose the surname of Salim
for the accused. Interestingly, the Board asked the applicant at the hearing
whether Abdalla’s family name was Salim, and the applicant replied that it was
not. Moreover, other evidence on the record, such as another police report and
the Mayor’s letter, also shows Abdalla as sharing the applicant’s family name.
It appears, therefore, that the RPD has misread and misunderstood the evidence
before it.
[20]
The
conclusion that the police report was fraudulent was a crucial finding, yet the
applicant was not apprised by the RPD of its concerns in this regard, nor
provided an opportunity to respond to this concern. The applicant could not
anticipate such a finding by the Board, and should have been given fair notice
that he was suspected of having engaged in seriously disreputable conduct. As
this Court stated in Sheikh v Canada, [2008] FCJ no. 219, at para.10,
“[N]atural justice requires that one be informed of specific concerns and be
given an opportunity to meet them”. See also: Milushev v Canada, [2007] FCJ No. 248, at para.
46.
[21]
Counsel
for the respondent retorted that this finding with respect to the police report
being fraudulent is not determinative regarding state protection, as even if
the applicant did go to the police initially, he was found not to have followed
up with the further threats from Abdulrahim. There is however no way to know
whether the Board would have come to its conclusion that the applicant had not
rebutted the presumption of state protection, if it had not erred in its
assessment of the applicant’s credibility.
[22]
Nor is it
the only mistake made by the Board in considering the evidence before it. The
Board also suggests that the applicant failed to report the threats made by
Amal’s family (at para. 10 of its reasons). Again, this appears to be an
error, as the applicant testified that he did report the threats made by Amal’s
family (A.R., p. 223). This is in fact corroborated by the police report found
at p. 56 of the Applicant Record. When combined with the problematic interpretation
given to the Mayor’s letter, of which I shall say more in the next section of
these reasons, it is far from obvious that these errors were of no import in
the Board’s finding with respect to state protection.
[23]
The Board
also found that the applicant was not credible when he stated that he was the
only one at risk, as documentary evidence shows that tribes do not single out
one person for revenge. If, as the applicant alleges, the confrontation
between his cousin and Abdalla had its origins in a tribal conflict over water
rights, the whole family should have been at risk.
[24]
I agree
with the RPD that there was no nexus to a Convention ground in this case. The
fact that the applicant was a member of a family where family killings had
occurred, did not make him a member of a particular social group where the
killings were essentially criminal revenge vendettas. The fact that there was
a history of encounters between family members due to a water dispute one year
before the murder of the applicant’s cousin and due to allegations of arson
between the families, does not convert a criminal vendetta into a Convention
refugee claim: see, for example, Gonzales v Canada (MCI), 2002 FCT 345,
at paras. 14-16; Zefi v Canada (MCI),
2003 FCT 636, at paras. 40-41; Hamaisa v Canada (MCI), 2009 FC 997, at paras. 11-15.
[25]
As for the
applicant’s claim as a protected person, I believe the Board’s finding is
questionable. First of all, the applicant himself never testified explicitly
that he was the only one at risk. More importantly, the Board never discussed
the possibility that he could be the primary target of tribal revenge because
he appeared as a witness in Abdalla’s murder trial. Instead of considering the
applicant’s particular role as a witness in the murder trial (which may well
have provided a basis for his being singled out), the Board appears to base its
decision on previously unmentioned factors, such as the general practice of
road closures to control riots and the cooperation of “the people of goodness
and wisdom in the Burma area” with a previously unmentioned “governor”.
Indeed, when making the determination that the applicant is most likely not
alone in his risk, the Board focused on the fact that the documentary evidence
does not mention individuals as being the target of blood feuds. In so doing,
the Board failed to acknowledge the applicant’s particular circumstances.
[26]
In light
of the above, I am of the view that the Board could not reasonably impugn the
applicant’s credibility on the basis of the reasons provided. Once the errors
mentioned in the previous paragraphs are accounted for, there remains very
little on the record to arrive at a finding of non credibility.
c) Did the Board err in making
its state protection finding?
[27]
The
Supreme Court of Canada and the Federal Court of Appeal have conclusively
determined the test for evaluating the existence of state protection. The
state is presumed to be capable of protecting its own citizens. This
presumption can only be displaced upon clear and convincing confirmation of the
state’s inability to protect a claimant: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, at p.
724; Canada (Minister of Employment and
Immigration) v Villafranca
(1992), 150 N.R. 232, at p. 235 (FCA).
[28]
More
recently, the Federal Court of Appeal confirmed that a person who claims inadequate
state protection bears both an evidentiary burden and a legal burden; the
applicant must first introduce evidence of inadequate state protection, and
must then convince the trier of fact that the evidence adduced establishes that
the state protection is inadequate: see Canada (MCI) v Flores Carrillo,
2008 FCA 94, at paras. 17-19.
[29]
As such,
in the present case it is clear that the onus to rebut the presumption of state
protection lay upon the applicant. To do so, he was required to show that he
made adequate efforts to seek protection from the state, and that he gave the
authorities sufficient opportunity to respond to his request for assistance:
see Romero v Canada (Minister of Citizenship and Immigration), 2008 FC
977, at para. 25.
[30]
The
narrative that he recounted in his testimony did not convince the Board that he
had complied with this requirement. The Board noted that the Jordanian police
had shown a willingness to intervene in order to protect the applicant: upon receipt
of his complaint, they compelled Abdulrahim to sign an undertaking to keep the
peace. Though this undertaking did not successfully bring an end to the
harassment suffered by the applicant, it nevertheless shows that the police
were engaged in the matter and took active steps to help him. The Board
reasoned that in order to rebut the presumption of state protection, the
applicant needed to give the authorities sufficient opportunity to help him,
and ought to have returned to the police regarding the continued harassment by
the accused’s family and filed a complaint to the police regarding the
accused’s wife’s family.
[31]
There are
several flaws with this reasoning. As already mentioned, the applicant did
file a complaint to the police regarding the accused’s wife’s family. More
importantly, the applicant also tendered a letter from the Mayor of the Al Ananbeh
clan, one of the clans called to mediate the dispute. The translation of
that letter reads as follows:
We, the Mayor and the Elected Committee
of Kufranjeh City, hereby certify that Mr. Yousf Ahmad Abdelrahim Al Assouli is
from Kufranjeh and is one of its residents. He is well known to us as being
one of the witnesses in the case No. of the deceased, Omar Obedellah Al Assouli
by the accused Abdullay Mohammad Abdelraheem Al Assouli. They are his
cousins. He has been asked to testify from time to time. His presence inside
the country threatens his life at the hands of the parties in the case.
According to what has been mentioned, he
wants to leave the country until the completion of the reconciliation
ceremonies and ending the case.
Upon his request this certificate has
been granted.
Applicant Record, p. 59.
[32]
The RPD
decided that on a balance of probabilities, the above letter was evidence that reconciliation will be
achieved. At the same time, the RPD did not accept that the Mayor would
indicate his country’s inability to protect one of its own citizens. The RPD
finally concludes that the letter is to be given little weight.
[33]
The above
letter from the Mayor is an important piece of evidence refuting the
presumption of state protection. Given the importance of the content of the
letter, the correctness of the RPD decision to give it no weight is critical to
the overall decision on state protection.
[34]
The
Board’s decision to reject it is dubious for a number of reasons. First of
all, the Board appears to have completely misinterpreted the letter and took
only the part that was in conformity with its conclusion. The letter clearly
states that the applicant is in danger at the hands of the parties, but the
Board focused instead on whether the Mayor believes that reconciliation will
one day occur. In so doing, the Board fails to address the fact that the Mayor
explained that until the reconciliation occurs, the applicant is not safe
within the country. Contrary to the Board’s finding, what matters is not
whether reconciliation would eventually occur in the opinion of the Mayor, but
whether the applicant would be in danger if he were to return home at the time
of the RPD determination.
[35]
The reason
why the Board gave no weight to the Mayor’s statement that the applicant would
not be safe in his country was its belief that it was implausible for a mayor
to indicate that his country is unable to protect one of its own citizens.
Yet, such a belief is not based on any evidence, is not explained and appears
to be based on a purely speculative guess at what a mayor in Jordan would or would not say. This
is clearly insufficient. When deciding an issue of implausibility, the RPD
must articulate why the evidence is outside the realm of what could be
reasonably expected in the specific circumstances of the case.
[36]
The RPD
has not indicated whether it believes the letter from the Mayor to be a forgery
or to be genuine but from a person not telling the truth. Further, the RPD has
failed to relate this plausibility finding to any evidence supporting its
speculative decision on what a mayor in Jordan would or would not say. This is clearly
an error.
[37]
Because
the Mayor’s letter was a key element in assessing the presumption of state
protection and whether the applicant had succeeded in rebutting it, I am of the
view that the Board’s decision cannot stand. It is simply not possible to say
that notwithstanding the Mayor’s letter, a similar determination on state
protection would have been made. The applicant had reported to the police and
still faced threats. The Mayor confirmed that he remained at risk, despite the
reconciliation process and police involvement. If the Mayor’s evidence had
been accepted, and if the Board had not erred in assessing the applicant’s
credibility, it may well have found that the presumption of state protection
had been rebutted.
[38]
Before
bringing these reasons to a close, I wish to take this opportunity to address a
matter discussed by the parties in their submissions, relating to the
significance of the democratic nature of a state in determining the robustness
of the presumption of state protection. Counsel for the applicant argues that Jordan is a kingdom whose “law does
not provide citizens the right to change their monarchy or government”. He
goes on to submit that Jordan is therefore at the lowest end of democratic
values, and that the applicant is therefore only required to demonstrate a
minimal effort at seeking remedies to obtain state protection.
[39]
With
respect to the applicant, I cannot accept this argument. It is true that a
claimant from a country with a full complement of strong democratic institutions
must show serious efforts at obtaining protection. There is no doubt what this
Court meant when it stated in Kadenko v Canada (MCI), [1996] F.C.J. No.
1376, 143 D.L.R.(4th) 532 that “…the more democratic the state’s
institutions, the more the applicant must have done to exhaust all the courses
of action open to him or her”.
[40]
But the
reverse is not necessarily true in every case. It is quite possible that
states which lack a democratic election process for choosing their leaders,
such as monarchies, may nevertheless enjoy effective mechanisms of state
protection, at least to repress common criminality and anti-social behaviour.
Therefore, in assessing the availability of state protection, it is only
logical that regardless of the manner in which a state chooses its leaders,
tribunal members must examine the actual level of state protection available in
that country, having regard to the particular circumstances of the applicant.
When its authority is not threatened, it may well be that a state will be
willing and able to provide a fair level of protection to its citizens, even if
it does not conform with our ideal of democracy.
[41]
Indeed,
Justice Rennie recently spoke to this issue in Sow v Canada (MCI), 2011 FC 646. He emphasized
that the presence or absence of fair elections is not the only indicator of
democracy that is relevant in determining what is necessary for a claimant to
rebut the presumption of state protection. Rather, he urges tribunal members
to consider the availability of protection itself:
[11] Democracy alone does not ensure
effective state protection. The Board must consider the quality of the
institutions providing that protection. As well, the Board must look at the
adequacy of state protection at an operational level and consider persons
similarly situated to the applicant and their treatment by the state: Zaatreh
v Canada (Citizenship and Immigration), 2010 FC 211 at para. 55
[42]
In other
words, democracy should not be used as a proxy for state protection. There is
obviously a strong relationship between the citizens’ participation in the
institutions of the state on the one hand, and the effectiveness and fairness
of the state’s apparatus to protect them. There is no automatic equation
between the two, and an assessment of state protection must always rest on a
more nuanced analysis, taking into account the particular circumstances of a
claimant, as well as the state involved.
[43]
For all of
the above reasons, this application for judicial review is granted, and the
matter shall be returned to the RPD to be heard by a different member. No
question for certification has been proposed, and none will be certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is granted. There is no certified question.
"Yves
de Montigny"
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