Docket: IMM‑11682‑23
Citation: 2024 FC 1810
[ENGLISH TRANSLATION]
Ottawa, Ontario, November 14, 2024
PRESENT: The Honourable Madam Justice Ngo
BETWEEN:
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FARID HAFID, MOHAMED ZAKI HAFID, MOHAMED SAMY HAFID, MALAK HANIFA HAFID, FATIHA BORDJI, MOHAMED EL AMINE HAFID and MOHAMED ABDESSALAM ROSTOM HAFID
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA
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Respondent
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JUDGMENT AND REASONS
I. Background
[1] The applicants, a couple and their five children, are citizens of Algeria. They seek judicial review of an August 21, 2023 decision [Decision] of the Immigration and Refugee Board of Canada’s Refugee Appeal Division [RAD]. The applicants did not appeal before the RAD all of the findings of the Refugee Protection Division [RPD] that they presented in their refugee protection claim. The determinative issue before the RAD involved the RPD’s conclusion that there was no prospective personalized risk within the meaning of section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] if the applicants returned to Algeria. In its Decision, the RAD confirmed the determination of the RPD and rejected the refugee protection claim.
[2] For the reasons that follow, the application for judicial review is dismissed. The applicants have not shown that the impugned Decision is unreasonable.
II. Analysis
[3] The parties agree that the applicable standard of review in respect of the reasons for the Decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paras 10, 16–17, 25 [Vavilov]). I agree that this is the appropriate standard.
[4] In a judicial review, the Court must perform an analysis and determine whether a decision bears the hallmarks of reasonableness—justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision in a given situation will always depend on the relevant factual and legal constraints that bear on the decision under review (Vavilov at para 90). A decision may be found unreasonable if the administrative decision maker misconstrued the evidence in the record (Vavilov at paras 125, 126). The burden is on the party challenging the decision to show that it is unreasonable (Vavilov at para 100).
[5] The applicants argue that the RAD erred in concluding that there was no prospective risk of persecution on the basis that the facts did not establish any links between the various events experienced by the applicants. The applicants maintain that their risk is personalized because they belong to a subgroup that is persecuted in Algeria, as people of means. They are part of this subgroup as a result of the position of influence held by the patriarch of the family.
[6] On the other hand, the respondent submits that the Decision is reasonable and that the RAD was right to conclude that the facts presented were circumstantial and failed to establish a link between the events experienced by the applicants. The risk of endemic crime raised does not concern the applicants alone but all Algerians.
[7] At the hearing, the applicants argued that they are not asking the Court to weigh the evidence. However, they are, in effect, asking me to consider the same facts but reach a different conclusion than the RAD.
[8] When a reviewing court applies the standard of reasonableness, the question is not whether other alternative interpretations or conclusions would have been possible. Rather, it is whether the interpretation chosen by the decision maker passes the muster of reasonableness, even though other interpretations or conclusions might have been possible (Tong v Canada (Public Safety and Emergency Preparedness), 2023 FC 625, at para 32). The Court cannot agree with the applicants’ arguments, because they are asking me to weigh the evidence, which I cannot do as part of a judicial review (Vavilov at para 125).
[9] The identity of the agent of harm in each of the incidents alleged in the refugee protection claim is unknown. The applicants are not challenging this conclusion. The RPD had also concluded (and the RAD confirmed) that the applicants had failed to establish a link between the various alleged events, namely two robberies in 2014 and 2015 and attempted kidnappings in 2017. The RAD also analyzed the accounts and testimony given by the applicants describing the events, among other things.
[10] Given the lack of evidence on the identity of the agent of harm and the evidence relating to the circumstances of the alleged events, the RAD’s conclusion that no link had been established between the events and the position of the family patriarch is not unreasonable.
[11] The parties cited Prophète v Canada (Citizenship and Immigration), 2008 FC 331 [Prophète FC] (affirmed in Prophète v Canada (Citizenship and Immigration), 2009 FCA 31 [Prophète FCA]) to support various propositions.
[12] However, paragraph 10 of Prophète FCA and paragraphs 22 and 23 of Prophète FC do not support the applicants’ argument; the subgroup that they relied upon is too generalized and cannot be considered a personalized risk. It was accordingly reasonable for the RAD to conclude that the applicants’ refugee protection claim contained no personalized risk.
[13] In addition, merely referring to the objective documentary evidence on the country conditions, with no link to an applicant’s personal situation, is not enough to justify allowing the protection sought (Casilimas Murcia v Canada (Citizenship and Immigration), 2019 FC 1182, at para 96).
[14] The respondent notes that if I find the Decision regarding the lack of a prospective risk to be reasonable, this is sufficient to dispose of this application for judicial review because the presence of such risk is an essential element of a refugee protection claim filed under sections 96 and 97 of the IRPA (Gomez Mondragon v Canada (Citizenship and Immigration), 2015 FC 603, at para 20).
III. Conclusion
[15] The Decision is a reasonable outcome. Under the reasonableness standard, the Decision exhibits the required degree of justification, intelligibility and transparency and is justified in relation to the facts and law that constrain the decision maker (Vavilov at para 85). The application for judicial review is therefore dismissed.
[16] No question for certification was proposed by the parties and I agree that none arises in this case.
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