Date: 20031107
Docket: IMM-4320-02
Citation: 2003 FC 1307
Ottawa, Ontario, this 7th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
HASAN DHAIFULLAH ALKUHALI
(a.k.a. Hasan Alkuhali)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated July 26, 2002, wherein the Board determined that the applicant was not a Convention Refugee.
Background
[2] The applicant, Hasan Alkuhali, is a 42-year old citizen of Yemen. He claims that he is a person in need of protection from a local terrorist group, the Aden-Abyan Islamic Army (the "AAIA"). The applicant arrived in Canada on December 15, 2000, via the United States and immediately asserted his claim for Convention refugee status.
[3] The applicant claims that on November 1, 2000, five heavily armed and masked men came to his home and attempted to recruit him in a holy war against the government of Yemen and foreigners who aided the government. The men offered the applicant weapons, money and a car if he agreed to join them.
[4] The applicant refused and one of the masked men, whom the applicant believed to be a member of the AAIA, told him he had 24 hours to reconsider and that he should think of himself and his family.
[5] The applicant decided to flee to Tez without informing the police of the altercation. He remained in Tez for two weeks while attempting to procure a false passport. He was unsuccessful and travelled to Sanaa where he was able to purchase a false American passport and plane ticket to the United States.
[6] The applicant spent eight days in the Detroit area and found that the area had too many violent crimes. The applicant consequently left for Canada on December 15, 2000. He indicated his intention to make a refugee claim in Windsor, Ontario, on the same day.
Board's Decision
[7] The Board determined that the applicant did not have a well-founded fear of persecution in Yemen by reason of his political opinion. The Board also found that the claimant was not a person in need if protection as there was no substantial grounds to believe that he would be personally subjected to torture, and no serious possibility of a risk to his life or of cruel and unusual punishment in Yemen. The Board considered several factors in concluding as it did.
[8] The Board found the applicant to be a generally credible witness and did not question his written Personal Information Statement ("PIF") or his oral testimony. The Board found the determinative issue in the claim to be whether it was objectively reasonable for the applicant not to have sought state protection. The Board stated that, "...While states are presumed to be capable of protecting their nationals, it was open to the claimant to rebut the presumption of protection with 'clear and convincing evidence'." The Board did not find on the evidence that the applicant had rebutted that presumption.
[9] The Board found that, although the applicant claimed that he did not go to the police for help because he felt they were corrupt and dangerous, he did not provide any evidence for this assertion. The Board noted that the applicant stated that he was certain that some members of the police had infiltrated, and were part of the AAIA. The applicant also stated that the government was unable to catch members of the AAIA, though he conceded that the government had pursued and prosecuted several AAIA members.
[10] The applicant claimed that the leader of the AAIA was Usama bin Laden, as he knew bin Laden was providing financial support to terrorists. The applicant claimed the group had members around the world and was seeking to raise millions of dollars for its "jihad" through ransom paid to free foreigners kidnapped by the AAIA.
[11] Though the Board accepted that the AAIA was a violent terrorist organization with international connections, it found that the applicant provided no evidence to support his contention that the police was corrupt and the government ineffective. The Board did, however, have documentary evidence reporting that the Yemen government was making serious efforts to protect both its citizens and foreigners from the AAIA. There was evidence of arrests, prosecutions and sentencing of leaders and members who had committed and attempted to commit terrorist acts. Hence, the Board determined it was objectively unreasonable for the claimant not to have sought the protection of the Yemeni government upon the receipt of threats from the AAIA.
[12] In terms of police assistance, the Board again asserted that the onus was on the applicant to produce clear and convincing evidence that the police would not provide protection for the applicant and his family. The Board determined on the evidence that the Applicant "...has not discharged the onus on him to produce clear and convincing evidence that the police, to whom he did not complain, would not be forthcoming with serious efforts at protecting him from the AAIA." The Board also determined that the claimant did not establish that there was a serious possibility that he would be subjected personally in Yemen to a risk to his life or cruel and unusual treatment or punishment pursuant to paragraph 97(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). Finally, the Board found that the applicant could not rely on paragraph 97(1)(a) of the Act, in arguing he would be subjected to a risk of torture, since the definition of torture only encompasses torture at the hands of a public official.
Issues
[13] This judicial review raises the following issue:
A. Did the Board commit a reviewable error in concluding that the Applicant did not rebut the presumption of State protection?
Standard of Review
[14] This issue is one of mixed fact and law, I therefore find the applicable standard of review to the sole issue raised in this application to be reasonableness simplicitor (See Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748).
Analysis
[15] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court held that a claimant must provide clear and convincing proof of a state's inability to protect its citizens. In the absence of complete breakdown of the state apparatus or absent an admission by the state of its inability to provide such protection, it should be assumed that the state is capable of protecting its citizens. This presumption reinforces the rationale that international protection is a last resort, to be sought when all other avenues have been pursued unsuccessfully. At page 724 of the Court's reasons, Mr. Justice La Forest wrote:
... only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention Refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
[16] At the hearing of this matter, the applicant argued that the Board mis-stated the test to be applied in determining the issue of state protection. In its reasons the Board stated that the question is "... whether there is clear and convincing evidence that the police would not be reasonably forthcoming with serious efforts at protection." The applicant contends that the test as set out in Ward, supra, requires, "clear and convincing proof of a state's inability to protect", and not, "that the police would not be reasonably forthcoming with serious efforts at protection." The applicant, argues that had the Board asked the right question, it may have reached a different conclusion on the issue. I do not accept this argument. Considering the reasons in their entirety, I am satisfied that the Board understood and applied the proper test. Further, even if I were to accept the applicant's contention that the test was not expressed properly in the Board's reasons, such a mis-statement is not material to the outcome. As my reasons below will show, I am of the view that the Board did not err in finding that the applicant had not discharged his onus of advancing clear and convincing proof of the state's inability to protect, and consequently had not rebutted the presumption that the state is capable of protecting its citizens.
[17] The applicant argues, that the Board erred in giving weight to evidence that the Yemeni police and government were pursuing, arresting and prosecuting terrorists. The applicant submits that such arrests were only made after the AAIA had perpetrated or attempted to perpetrate violent actions, and the inability of the Yemeni authorities to pre-empt such violent actions is indicative of the state's inability to protect the applicant. The applicant also contends, that evidence of the inability of the police to control tribal killings should cast serious doubt on the same authority's ability to protect the applicant against terrorist threats. The applicant asserts that this, along with the state's inability to pre-empt violence, constitutes clear and convincing evidence of the inability of the Yemeni police and government to protect the applicant. Consequently, the Board's negative decision is unreasonable on its face.
[18] I am of the view that the Board's conclusions were not unreasonable, given the evidence. In order to establish that an applicant is unable to avail himself of the state's protection, he must objectively demonstrate that the state is prevented from giving aid, or that the applicant was physically prevented from seeking such aid.
[19] In my view, the evidence in this case demonstrates that the problem of terrorism is taken seriously by the state, and that efforts are made to ultimately bring criminals to justice. Although, the documentary evidence makes passing reference to police corruption, such evidence is insufficient to support the contention, that as a result of this corruption the state of Yemen is rendered incapable of protecting its citizens. The applicant has failed to adduce any evidence that the police would not protect him if assistance was sought, and has failed to discharge his burden of proving the unavailability of state protection.
[20] Though the applicant has referred to the phenomenon of tribal revenge killings as evidence of the ineffectiveness of state protection in relation to his situation, I do not find that this evidence meaningfully relates to the applicant's situation. The applicant had advance warning of a possible attack from AAIA members, and has not established that had he sought police assistance, it would not have been forthcoming. There is no parallel to be drawn between the circumstance of victims of tribal revenge plots and the applicant's situation.
[21] Finally, I must again emphasize that the jurisprudence relating to state protection establishes that the applicant first has an obligation to seek assistance in his country of origin, unless it is objectively unreasonable to do so. In assessing such questions, it is within the Board's discretion to examine all the reasonable efforts the applicant could have taken to seek such protection. In the case at hand, the applicant consulted no one. He fled on the basis of an unsubstantiated belief of police inaction and made no effort to inform or seek the assistance of any state body. This was done despite the knowledge that the state was active in bringing terrorists to justice. Under such circumstances, I do not think it was unreasonable of the Board to conclude that the applicant had not rebutted the presumption of state protection.
[22] I am satisfied that the Board's conclusion on the issue of state protection was reasonable. The applicant has failed to adduce clear and convincing confirmation of the state's inability to protect its citizens, consequently the application for judicial review will be dismissed.
Conclusion
[23] For the reasons set out above, the application for judicial review will be dismissed.
[24] Neither party proposed a question for certification. The Court declines to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated July 26, 2002, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4320-02
STYLE OF CAUSE: Hasan Dhailfullah Alkuhali (a.k.a. Hasan Alkuhali) v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, September 24, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: November 7, 2003
APPEARANCES BY:
Mr. Michael Korman For the applicant
Ms. Matina Karvellas For the respondent
SOLICITORS OF RECORD:
Otis & Korman For the applicant
Toronto, Ontario
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT
Docket: IMM-4320-02
BETWEEN:
HASAN DHAIFULLAH ALKUHALI
(a.k.a. Hasan Alkuhali)
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER