Docket: IMM-1994-15
Citation:
2015 FC 1119
[UNREVISED ENGLISH TRANSLATION]
Ottawa, Ontario, September 25, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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LATIFA MORSLI
REDA BALACHE
RAYANE MOHAMED
FEGHOUL
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
The applicants, Latifa Morsli and her two sons, are
Algerian citizens. They left Algeria for Canada in December 2012 due to
incidents that had led Ms. Morsli’s former husband, Fouad Feghoul, who is also
the father of co-applicant Rayne Mohamed Feghoul (Rayne), to flee the country a
few weeks earlier to seek refuge in Canada.
[2]
Immediately upon joining Mr. Feghoul in Canada, the
applicants and Mr. Feghoul claimed refugee protection. The claim was based on
difficulties encountered by Mr. Feghoul in the months preceding his leaving
Algeria. As magistrate and examining judge at the El Bayadh tribunal in the Saida
Court, Mr. Feghoul apparently, in February 2012, ordered the detention of four
repentant terrorists charged with smuggling, weapons trafficking and forced
marriages of minors. Following this decision, Mr. Feghoul purportedly received
death threats. The situation reached its apex in October 2012 when Mr. Feghoul
was allegedly attacked by three individuals very close to the family’s home.
His life was reportedly saved thanks to the intervention Ms. Morsli’s brother,
who was with him at the time.
[3]
There is one particular twist in the matter. Since
their arrival in Canada, Ms. Morsli and Mr. Feghoul have divorced; Mr. Feghoul
withdrew his claim for refugee protection as well as that of his son, Rayne
(for which Ms. Morsli later re-applied); Mr. Feghoul left Canada for what the
applicants believe to be Spain and is apparently no longer an examining judge.
[4]
The applicants fear that in the event they were
to return to Algeria, their lives would be threatened by a desire for vengeance
on the part of the group of criminals that had targeted Mr. Feghoul. In a
decision dated April 10, 2014, the Refugee Protection Division [the RPD] of the
Immigration and Refugee Board rejected their claim for refugee protection, being
of the opinion that they did not meet the definition of refugees or of persons
in need of protection within the meaning, respectively, of sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “Act”).
[5]
The applicants submit that the RPD erred in finding
that they were not persons in need of protection within the meaning of section
97 of the Act. The RPD concluded in this regard that the applicants had not
established that the alleged threat was prospective and that, in any event, an
internal flight alternative was available to them in the country’s capital, Algiers.
[6]
Authorized, pursuant to subsection 72(1) of the
Act, to seek judicial review of this decision, they are asking that it be set
aside and that the matter be referred back for redetermination before a
differently constituted RPD.
[7]
The issue to be decided here is whether the RPD,
in making its findings, committed an error that would warrant the Court’s
intervention, in accordance with section 18.1 of the Federal Courts Act,
RSC (1985), c F-7. It is well established that the standard applicable to this
type of issue is reasonableness (Dunsmuir v New Brunswick, [2008] 1 SCR
190, 2008 SCC 9 [Dunsmuir].
[8]
According to this standard of review, the Court
must show deference to the RPD’s findings and will therefore only intervene if
those findings lack justification, transparency or intelligibility and fall
outside a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir, above, at para47). Also
according to this standard, it is not the Court’s role to substitute its own
assessment of the evidence in the record for the assessment made by the RPD (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at
para 59).
[9]
In this case, I find that the RPD’s decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law and that, accordingly, there is no need to
intervene.
[10]
It is well established that those who seek Canada’s
protection under section 97 of the Act must, in order to succeed, establish
that the risk or threat they purport to face is personalized and of a
prospective nature. This is a central element of the right to protection set
out in section 97 and in the analytical approach developed in the Court’s case
law (Portillo v Canada (Citizenship and Immigration), 2012 FC 678, 409
FTR 290, at para 40; Acosta Acosta v Canada (Citizenship and Immigration),
2009 FC 213, at para 13; Cessa Mancillas v Canada (Citizenship and
Immigration), 2014 FC 116, 447 FTR 162, at para 25).
[11]
The applicants therefore needed to establish
that they would face a personalized risk, if they were to return to Algeria, of
threats to their lives or a risk of cruel and unusual treatment or punishment
at the hands of the individuals who had targeted Mr. Feghoul. However, the RPD
was of the view that this had not been demonstrated on the grounds:
- That two and a half years had elapsed since Mr. Feghoul was attacked;
- That the applicants had not been subjected to any direct or personalized
threats prior to leaving Algeria to join Mr. Feghoul in Canada, whether
during the period in which he was receiving threats, following his
assault, or during the period between the moment Mr. Feghoul left Algeria
on November 5, 2012, and when the applicants left to join him one month
later;
- That they have not been the subject of such threats since then;
and
- That the members of Ms. Morsli and Mr. Feghoul’s families, who
remain in Algeria, had not been threatened or harassed at all by the group
of criminals either before or after the departure of Mr. Feghoul and the
applicants.
[12]
In short, the RPD concluded that nothing in the
evidence adduced by the applicants showed that the individuals who had
threatened and attacked Mr. Feghoul had the slightest interest in tracking them
down to seek revenge against Mr. Feghoul, who, the RPD noted, no longer lives in
Algeria and has been relieved of his functions as an examining judge.
[13]
Having examined the evidence in the record, I
cannot say that the RPD made unreasonable findings, quite the contrary. The
applicants nonetheless insist that they remain random targets and that the Court
should, on the basis of Chan v Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593, 128 DLR (4th) 213 [Chan], a matter that deals with
the scope of the definition of a refugee within the meaning of the Convention
on Refugees, give them the benefit of the doubt. However, this argument
cannot be retained. In the first place, the applicants do not dispute before
this Court that they are not Convention refugees. Second, this argument is
founded upon the opinion of dissident Justices of the Supreme Court of Canada
in Chan, which lends it limited weight. In any event, it is important to
state that it is not enough, in this case, to establish the existence of a
subjective fear, even with the benefit of the doubt given; the alleged threat
or fear must also be objectively well-founded. This is what the majority in Chan thought
important to recall at paragraph 133 of the judgment:
Nevertheless,
even if the appellant is given the benefit of the doubt on the question of a
subjective fear, the existence of a subjective fear of persecutory treatment is
not sufficient to meet the statutory definition of a Convention refugee. It is
the responsibility of the claimant at a refugee determination hearing to lay an
evidentiary foundation upon which the Board can conclude not only that the fear
existed in the mind of the claimant but also that it was objectively
well-founded.
[14]
As the respondent points out, the onus was on the
applicants to provide evidence to support their allegations on a balance of
probabilities (Shire v Canada (Citizenship and Immigration), 2014 FC 795
at para 3; Scott v Canada (Citizenship and Immigration), 2012
FC 1066, at paras 30-32). In the absence of tangible evidence indicating that the
applicants would personally face, should they return to Algeria, the vengeance
of the group of individuals that had targeted Mr. Feghoul, it was reasonable
for the RPD to reject the claim based on section 97 of the Act. After all,
according to the evidence in the record, neither the applicants, nor the extended
family they left behind, were ever threatened by anyone both during and after
the incidents Mr. Feghoul was victim to, and he himself, who was the sole
target of the group of individuals he had ordered detained, no longer lives in Algeria.
[15]
This appears to me to be quite sufficient, based
on an assessment on a standard of reasonableness, to lead me to conclude that
there is a lack of prospective fear. In other words, it will not suffice, to
meet the definition of “person in need of protection”
within the meaning of section 97 of the Act, to claim that one is a potential
random victim on the basis of purely random evidence. As in cases in which it
must be determined whether a refugee claimant meets the definition of a Convention
refugee, a minimum objective basis is required.
[16]
Lastly, the applicants submit that to the extent
that the RPD did not question the credibility of the narrative of events that
served as a basis for the refugee protection claim, namely those which led Mr.
Feghoul to leave Algeria, it should have, based on Gonzales v Canada (Citizenship
and Immigration), 2013 FC 426, 431 FTR 268, at para
12), “conduct[ed] an individualized and thorough
analysis of the facts presented”. In my view, this is exactly what the
RPD, based on the evidence that was before it, did. Its analysis is complete.
The fact that the applicants disagree with the RPD’s conclusion is not
sufficient to justify the intervention of the Court.
[17]
I am therefore satisfied that the RPD, in
determining that the applicants had not succeeded in establishing the existence
of a prospective risk, made findings on the basis of the evidence that, in
accordance with Dunsmuir, above, fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. Given this
conclusion, it is not necessary to determine whether the RPD erred in finding,
alternatively, that the applicants, supposing that risk had been established,
had an internal flight alternative available to them.
[18]
The parties agreed that this case did not raise
any serious question of general importance, within the meaning of subsection
74(d) of the Act. I agree.
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