OTTAWA, ONTARIO, MARCH 1, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Ayaichia has claimed refugee status from Algeria. In a decision dated August 31, 2005, the Refugee Protection Division of the Immigration and Refugee Board (the Board) found that he was neither a Convention refugee nor a person in need of protection. He has applied for judicial review of the Board’s decision.
[2] Mr. Ayaichia claims the Board breached procedural fairness by relying on Guideline 7, entitled “Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division.” He says the Guideline, issued by the Board’s Chairperson, fetters the Board’s discretion. He also claims the Board erred by failing to conduct a separate analysis of his claim under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). For reasons to be outlined more fully below, I have not been persuaded that he should succeed on either of these grounds.
FACTS
[3] Abdel Hakim Ayaichia is a 29-year-old Algerian citizen. He arrived in Canada December 28, 2004, after spending just under one month in France. He claimed refugee status shortly after arriving in Canada, arguing he was afraid of a man named Rachid Baabouche.
[4] Before leaving Algeria, Mr. Ayaichia worked as an electronic technician for the National Society of Rail Transportation (NSRT). He says he witnessed Mr. Baabouche murder one of his colleagues in October, 2004. He claims Mr. Baabouche is a former terrorist, and that all of his colleagues were terrified of the man. He submits he hid during the murder, and did not assist the victim because he was afraid. The next day, however, Mr. Ayaichia reported the crime to authorities. He was eventually asked to be the lead witness in Mr. Baabouche’s trial.
[5] Mr. Ayaichia says he received an anonymous threatening letter, but authorities did nothing when he reported it. He also claims he was shot at on November 30, 2004. On December 2, 2004, he flew from Algeria to France with a valid visa. On December 28, 2004, he flew from France to Canada, using an illegal passport.
IMPUGNED DECISION
[6] Before the Board, Mr. Ayaichia claimed he faced persecution under section 96 of the IRPA because of his political activities. He also argued he was a member of a particular social group: people victimized by terrorists. Finally, he claimed he was a person in need of protection under section 97. While it accepted his identity and the fact that he had worked for the NSRT, the Board rejected his claims under both sections 96 and 97. The Board’s decision highlighted a number of credibility problems with Mr. Ayaichia’s story. It found he did not have a subjective fear of persecution, because he had stayed in France for nearly a month without claiming refugee status there. The Board also found Mr. Ayaichia did not have documents to support his story, and no reasonable explanation for their absence.
[7] Furthermore, the Board concluded Mr. Ayaichia could not succeed under section 96 because there was no nexus between his claim and any of the enumerated Convention grounds. It concluded that reporting a crime was not an expression of one’s political opinion. Nor was he a member of a particular social group, because his claim about victimization was not based on a fundamental personal characteristic.
[8] Finally, with respect to section 96, the Board concluded Mr. Ayaichia had not rebutted the presumption of state protection in Algeria. After he told authorities about his colleague’s murder, he told the Board that Mr. Baabouche had been arrested and put on trial for the crime. Once he was shot, the police apparently told Mr. Ayaichia they would protect him. There was nothing they could do about the threatening letter, because it was anonymous. Yet, despite the offer of police protection, Mr. Ayaichia flew to France – where he did not claim refugee status. The Board also referred to documentary evidence which described Algeria’s judicial system as efficient, despite problems with corruption.
ISSUES
[9] This application for judicial review raises three issues:
1. What is the appropriate standard of review?
2. Did the Board make a material error by failing to conduct a separate analysis under section 97?
3. Did the Board breach procedural fairness by following Guideline 7? Did Mr. Ayaichia waive any right to make this argument?
ANALYSIS
[10] Before turning to the issues identified above, it is worth mentioning that Mr. Ayaichia has not challenged the Board’s findings that he was not credible, and that he had no subjective fear of persecution. Nor has he made any submissions about the Board’s conclusions on the issues of nexus and state protection. As a result, he must be taken to accept the Board’s finding that his claim under section 96 of the IRPA should be rejected.
1. What is the appropriate standard of review?
[11] It is well established that when allegations raising issues of natural justice or procedural fairness are made, there is no need for the reviewing court to conduct a pragmatic and functional analysis. As the Supreme Court of Canada made clear in C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, no deference is warranted in such a case. If the Court concludes there has been a breach of natural justice or procedural fairness, it must set aside the Board’s decision.
[12] The only question subject to the standard of review is whether the Board erred by failing to conduct a separate analysis of Mr. Ayaichia’s claim under section 97 of the IRPA. This requires the Court to determine whether the Board appropriately applied its obligations under section 97 to the facts of his particular case. That is, in my opinion, a question of mixed law and fact, and thus should be assessed according to the standard of reasonableness.
2. Did the Board make a material error by failing to conduct a separate analysis under section 97?
[13] Mr. Ayaichia submits the Board erred by failing to conduct a separate analysis of his claim under section 97 of the IRPA, since there was evidence of both his identity and his need for protection. He claims the fact that he was not found credible with respect to his subjective fear, or that there may have been no nexus between his situation and the five grounds enumerated in the Convention, was not relevant for the purposes of section 97. To the extent that there was documentary evidence supporting his claim that he would be at risk if returned to Algeria, the Board had an obligation to analyze the country conditions and to assess this risk. Had the Board considered country condition reports detailing Algeria’s all-out war on terrorism and the resulting civilian casualties caused by both terrorists and the state, it may have come to a different conclusion. At the very least, argues Mr. Ayaichia, the Board was obliged to provide reasons for rejecting his claim under section 97, since his identity was not in dispute.
[14] Despite the Minister’s submissions to the contrary, a close reading of the Board’s reasons does not suggest it canvassed Mr. Ayaichia’s claims thoroughly under section 97. While it is true that the Board mentioned this ground at the outset of its reasons and in its concluding paragraph, it appears to have done so in a kind of ritual way, without any real analysis of its requirements.
[15] At the hearing, counsel for the Minister valiantly tried to argue that the Board’s reasons addressed both sections 96 and 97 at the same time. He based that proposition on the fact that the Board considered state protection and country conditions even after having found that the applicant was not credible and could not claim refugee status under section 96 of the IRPA.
[16] I do not find this argument persuasive. Nowhere did the Board member allude to the different elements required to establish a claim under section 97. It is more plausible to read that part of its reasons as further justification for finding that Mr. Ayaichia did not qualify under section 96.
[17] The real issue, it seems to me, is not whether the Board undertook a section 97 analysis (which it obviously did not), but whether it had to perform such an analysis at all in this particular case.
[18] The starting point for answering this question is my colleague Justice Edmond Blanchard’s decision in Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211. In that case, the Board had found the applicant was not credible and did not have a subjective fear of persecution. On review, Justice Blanchard held the Board had erred by not assessing the man’s claim under section 97. However, he continued, in light of the Board’s credibility findings, and the fact that it had not misapprehended any evidence about country conditions, the error was not a material one. Therefore, he dismissed the application. It is worth quoting at length from his reasons:
41. There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant’s particular circumstances, make him/her a person in need of protection. It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founded fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant’s removal would subject him personally to the dangers and risks stipulated in paragraphs 97(1) (a) and (b) of the Act.
[…]
42. In the present case the Board found important omissions, contradictions and implausibilities in the applicant’s evidence, which led it to conclude that the applicant’s story was not credible. I have already determined that these findings were open to the Board. The Board specifically disbelieved the applicant’s allegation of arrest, detention and torture by the police forces and provided detailed reasons for its findings. Further, the Board showed an appreciation of the country conditions in Tunisia and specifically considered, in its reasons, the country documentation before it. There is no evidence to suggest that the Board failed to consider evidence before it or that it misapprehended any aspect of the evidence. Apart from the evidence that the Board found to be not credible, there was no other evidence before the board in the country documentation, or elsewhere, that could have led the Board to conclude that the applicant was a person in need of protection. I find that the Board did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result.
[19] This case has been repeatedly followed by other members of this Court. While it is always better to analyze both sections 96 and 97 where an applicant has invoked the two grounds in support of his or her claim, failing to do so will not always be fatal to an otherwise sound decision. If the evidentiary basis for both claims is the same and the applicant’s story is not believed, there will be no need to proceed to a separate 97 analysis, as there will be no evidence to ground the applicant’s claim that he or she is in need of protection: see, for example, Brovina v. Canada (Minister of Citizenship and Immigration), 2004 FC 635; Islam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1391; Nyathi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1119; Ozdemir v. Canada (Minister of Citizenship and Immigration), 2004 FC 1008; Soleimanian v. Canada (Minister of Citizenship and Immigration), 2004 FC 1660; Masimov v. Canada (Minister of Citizenship and Immigration), 2004 FC 859; De Silva v. Canada (Minister of Citizenship and Immigration), 2004 FC 1141; Biro v. Canada (Minister of Citizenship and Immigration), 2005 FC 1428; Yorulmaz v. Canada (Minister of Citizenship and Immigration), 2004 FC 128; Stanchev v. Canada (Minister of Citizenship and Immigration), 2006 FC 173.
[20] Of course, if the underlying facts offer a separate basis for finding the applicant a person in need of protection, then concluding he is not credible for the purposes of section 96 or that there is no nexus to a Convention ground will not excuse the Board from going through a separate section 97 analysis. This was precisely the situation in Kilic v. Canada (Minister of Citizenship and Immigration), 2004 FC 84, on which the applicant relies. In that case, the Board did not find Mr. Kilic credible on many points, but nevertheless accepted he had evaded the military because he had documentary proof to support his claim. The Board rejected his claim under section 96, finding he had no nexus to a Convention ground, and failed to perform a section 97 analysis. Sitting on the judicial review of that decision, Justice Richard Mosley found the Board should have analyzed whether the Turkish applicant was at risk because of his military evasion.
[21] In the case at bar, there is simply no evidence to show Mr. Ayaichia would face any risk upon his return to Algeria. The sole basis of his claim was that he fears a terrorist whom he allegedly implicated in a murder. Once the Board decided not to believe his allegations, there was no other, separate ground upon which a section 97 claim could be made and assessed.
[22] There is, of course, documentary evidence in the country reports substantiating the risk for terrorists, or those suspected of terrorism. But Mr. Ayaichia does not fall into either of these categories, according to his own evidence at the hearing. Had he been able to establish that he was targeted by terrorists in retaliation for denouncing Rachid Baabouche, he could possibly have succeeded under section 97. But his story was not believed, and the risk of falling victim to terrorist groups is therefore not particularized and no greater a risk to Mr. Ayaichia than to the Algerian population at large. In those circumstances, the Board was not required to assess his claim under section 97 in any great detail, although it may be good practice to at least explain why such an analysis is not required.
3. Did the Board breach procedural fairness by following Guideline 7? Did Mr. Ayaichia waive any right to make this argument?
[23] Relying on Justice Blanchard’s decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, Mr. Ayaichia claims the Board’s reverse order questioning pursuant to Guideline 7 fettered its discretion. The problem with this submission is that Mr. Ayaichia did not object to the Guideline orally during his hearing before the Board. Nor did he make a written application before his hearing to change the order of questioning, pursuant to Rules 43 and 44 of the Refugee Protection Division Rules, SOR/2002-228.
[24] It bears repeating that neither Justice Blanchard in Thamotharem, above, nor Justice Mosley in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, concluded that reverse order questioning inherently violates natural justice. Even assuming Guideline 7 fetters the Board’s discretion, as Justice Blanchard found in Thamotharem, above, the question before me is whether the applicant has waived his right to object to the Guideline in Court, by failing to object before the Board.
[25] Justice Blanchard did not consider that issue, and in any event, the applicant had objected to the order of questioning early on in Thamotharem, above. But Justice Mosley did discuss it in Benitez, above, and after reviewing the relevant case law and principles with respect to waiver, he wrote at paragraph 237:
The common law principle of waiver requires that an applicant must raise an allegation of bias or a violation of natural justice before the tribunal at the earliest practical opportunity. If counsel were of the view that the application of Guideline 7 in a particular case would result in a denial of their client’s right to a fair hearing, the earliest practical opportunity to raise an objection and to seek an exception from the standard order of questioning would have been in advance of each scheduled hearing, in accordance with Rules 43 and 44, or orally, at the hearing itself. A failure to object at the hearing must be taken as an implied waiver of any perceived unfairness resulting from the application of the Guideline itself. If the objection was made in a timely manner at or before the hearing, the applicants are entitled to raise it as a ground for judicial review in their applications for leave. If the applicants failed to cite a denial of procedural fairness in their applications for leave, judicial review of the applications should be confined to the grounds on which leave was sought.
[Emphasis added]
[26] This Court has since cited the above passage approvingly in a number of cases: see, for example, Somani v. Canada (Minister of Citizenship and Immigration), 2006 FC 734; Vasanthakumar v. Canada (Minister of Citizenship and Immigration), 2006 FC 959; Ali v. Canada (Minister of Citizenship and Immigration), 2006 FC 1360; Torres c. Canada (Ministre de la Citoyenneté et de l`Immigration), 2006 CF 927; Mulliqi v. Canada (Minister of Citizenship and Immigration), 2006 FC 563. I see no reason to deviate from these conclusions in this case.
[27] For all of the above reasons, Mr. Ayaichia has failed to demonstrate that the Board committed any reviewable error and consequently, the application for judicial review is dismissed. No question for certification has been submitted, and none will be certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
“Yves de Montigny”
FEDERAL COURT
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7365-05
STYLE OF CAUSE:
ABDEL HAKIM AYAICHIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 15, 2007
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE DE MONTIGNY
DATED: March 1, 2007
APPEARANCES:
Mr. Mitchell Goldberg FOR THE APPLICANT
Ms. Gretchen Timmins FOR THE RESPONDENT
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SOLICITORS OF RECORD: |
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Mitchell Goldberg Montreal, Quebec |
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FOR THE APPLICANT |
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Morris Rosenberg Deputy Attorney General of Canada Montréal, Quebec |
FOR THE RESPONDENT |
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