Docket: IMM-2102-14
Citation:
2015 FC 73
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 19, 2015
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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NABIL HAMITOUCHE
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), for
leave and judicial review of a decision of the Refugee Protection Division (RPD)
of the Immigration and Refugee Board of Canada dated March 12, 2014,
by Member José wa Tshisungu Tshisungu, who found the applicant is not a person
in need of protection or a Convention refugee under sections 96 and 97 of the
IRPA. The applicant is seeking to have the RPD’s decision set aside and the
matter returned back to a different member.
[2]
For the following reasons, the application will
be dismissed.
II.
The facts
[3]
The applicant is a citizen of Algeria, where he
was a police officer until his departure for Canada on April 7, 2012.
[4]
On October 17, 2011, the applicant was stationed
at a checkpoint for entry into Algeria and was selecting vehicles to be inspected.
Back home after work that day, his neighbour told him that two men with beards and
wearing Islamic clothing had come to see him at his home. Two days later, a
young man wearing a leather jacket over top of his Islamic clothing came to his
house, but he did not answer the door. On October 22, 2011, the applicant
received a call from an individual who is a member of a terrorist group
soliciting his collaboration in letting a vehicle pass the checkpoint without
an inspection. The individual in question had confidential information known
only by the applicant’s colleagues who were present on October 17, 2011,
at the vehicle entry checkpoint. The applicant told his superior about his fear
and that he would hide at his brother’s house for one week. However, on October
27, 2011, he received a phone call in which he was issued death threats, at his
brother’s house, and his superior was the only one who knew where he was.
[5]
Within the five months preceding his departure,
the applicant hid at the police station and with a friend who is a police
commissioner. On February 28, 2012, the applicant obtained his Canadian visa
and on April 7, 2012, the applicant left Algeria. On April 13, 2012, the
applicant filed a refugee claim in Canada alleging a fear of persecution by
reason of his membership in a particular social group and political opinion and
alleging that he faces a risk of cruel and unusual treatment or punishment and
a danger of torture.
III.
Impugned decision
[6]
The RPD stated that the applicant established
his identity to its satisfaction and that it did not question his credibility. The
RPD also found that the applicant’s allegations pertained to “vengeance” and therefore had no nexus to one of the
five Convention grounds and thus found that section 96 of
the IRPA was not applicable in the case. The RPD therefore examined the
applicant’s application under paragraph 97(1)(b) of the IRPA. After
establishing that framework of analysis, the RPD only focussed on the state
protection issue and found that the applicant did not rebut the presumption of
state protection. The RPD noted that the police had wiretapped the applicant’s
phone to protect him, that nothing indicated that the police had stopped those protection
activities and that because the applicant abstained from seeking protection
from the police when he received the threatening phone call on October 27, 2011,
he could not demonstrate a lack of state protection to the RPD.
IV.
Issue
[7]
The following issue arises in this case:
- Did the RPD err in assessing state
protection?
V.
Standard of review
[8]
The applicable standard of review is
reasonableness, as this is a question of mixed fact and law (Hinzman v
Canada (Minister of Citizenship and Immigration); Hughey v Canada (Minister
of Citizenship and Immigration), 2007 FCA 171 at para 38; Dunsmuir v New Brunswick,
2008 SCC 9 at para 53 (Dunsmuir)). Consequently, this Court will focus on
verifying whether the RPD’s decision in this case falls within a range of
possible outcomes in respect of the facts and law and whether it is justified in
a manner that satisfies the requirements of intelligibility and transparency in
the decision-making process (Dunsmuir at para 47).
VI.
Analysis
[9]
The applicant maintains that the documentary
evidence shows that Algeria is far from an “electoral
democracy”, that there have been many terrorist attacks against the Algerian
authorities, that there are serious problems with the administration of
justice and that consequently, the presumption of state protection is not applicable
in this case.
[10]
The applicant alleges, in the alternative, that
he rebutted the presumption of state protection as a result of his testimony,
which was accepted as credible by the RPD.
[11]
I am of the opinion that the applicant did not
rebut the presumption of state protection. The documentary evidence does not
support the applicant’s claims that the Algerian state is incapable of
protecting its citizens. The authorities put in place measures to protect him
when he informed them that he was receiving threats and therefore it would have
been reasonable for the applicant to again ask them for help following the
threatening call on October 27, 2011. No state protection is perfect; adequate
state protection is sufficient. It was also reasonable for the RPD to not give
credence to the applicant’s suspicions as to the presence of a spy in the
police force in the absence of evidence to that effect, despite the applicant having
been deemed credible.
[12]
In my opinion, the applicant is seeking the
reassessment of the evidence by the Court, but that is not the role of the Court
(Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, at para 61). Otherwise, I see no reviewable error that
would justify setting aside the RPD’s decision. In short, the RPD rendered a
reasonable decision within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
VII.
Conclusion
[13]
As a result, the application is dismissed. No
question is certified.
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