2023 FC, 2023 FC 1445

Date: 20231031 Docket: IMM-8669-22 Citation: 2023 FC 1445 Ottawa, Ontario, October 31, 2023 PRESENT: The Honourable Madam Justice Rochester BETWEEN:ABDELKRIM DJABOURApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] The Applicant, Abdelkrim Djabour, is a citizen of Algeria. He seeks judicial review of a decision by the Refugee Appeal Division[RAD], dated August 15, 2022, dismissing his appeal and confirming the decision of the Refugee Protection Division [RPD] rejectinghis claim for refugee protection.

The RAD concluded that he is not a Convention refugee nor a person in need of protection undersections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Decision]. [2] The Applicant alleges that he fears for his life at the hands of a named individual [Mr. A.] and his gang for having reported Mr. A. tothe police for having attacked him. This led to Mr. A. being sentenced to 18 months in prison and a fine. The Applicant submits that heis in danger given the threats and harassment by Mr. A. and his gang following Mr. A.’s arrest by the police.

The determinative issue forboth the RPD and the RAD is the availability of state protection. The RAD concluded that the Applicant had failed to adduce clear andconvincing evidence refuting the presumption that the Algerian state is able to provide adequate protection. [3] The Applicant submits that the RAD’s conclusions on state protection are unreasonable on the basis that it (

i) failed to adopt acontextual approach as required when assessing whether he has rebutted the presumption of state protection; (ii) did not reasonablyconsider the profile of Mr. A.; (iii) failed to give due weight to the security personnel at his workplace having called the police but to noavail; and (iv) unreasonably required that the Applicant exhaust all avenues of protection. [4] Having considered the record before the Court, including the parties’ written and oral submissions, as well as the applicable law, theApplicant has failed to persuade me that the Decision is unreasonable.

For the reasons that follow, this application for judicial review isdismissed. II. Standard of Review [5] The parties agree that the applicable standard of review is that of reasonableness as set out in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 [Vavilov]. A reasonable decision is one that is justified in relation to the facts and the law thatconstrain the decision maker (Vavilov at para 85). Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13).

As such, the approach is one of deference, especially with respect to findings of fact and the weighing of evidence. A reviewingcourt should not interfere with factual findings, absent exceptional circumstances, and it is not the function of this Court on anapplication for judicial review to reweigh or reassess the evidence considered by the decision maker (Vavilov at para 125). III. Analysis [6] As noted above, the issue in the present judicial review is state protection. The starting point of the analysis of state protection is thepresumption that states are capable of protecting their own citizens.

The RAD rightly referenced the Supreme Court of Canada inCanada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689 [Ward], where it was confirmed that "“[a]bsent asituation of complete breakdown of state apparatus…it should be assumed that the state is capable of protecting a claimant”" and "“clearand convincing confirmation of a state’s inability to protect must be provided”" (Ward at 724-725). [7] The test to rebut the presumption of state protection is well established.

A refugee claimant seeking to rebut the presumption of stateprotection must adduce relevant, reliable and convincing evidence that satisfies the decision maker on a balance of probabilities that thestate protection is inadequate (Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 30;Nugzarishvili v Canada (Citizenship and Immigration), 2020 FC 459 at para 32 [Nugzarishvili]).

In other words, a refugee claimantseeking protection must demonstrate that they have either exhausted all objectively reasonable avenues to obtain state protection or that itwould have been objectively unreasonable for them to have done so (Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171at paras 46, 57; Arango v Canada (Citizenship and Immigration), 2021 FC 1016 at para 14; Nugzarishvili at para 34). [8] As highlighted by counsel for the Respondent during the hearing, the more a state is democratic, the more a refugee claimant must

have done to exhaust all the courses of action open to them (Kadenko v Canada (Minister of Citizenship and Immigration), (FCA), [1996] FCJ No 1376 at para 5 (FCA); XY v Canada (Citizenship and Immigration), 2014 FC 444 at para 26). In the presentcase, the RAD concluded, based on the objective evidence in the record, that the Algerian state is both willing and able to offerprotection to its citizens.

The Applicant did not contest this finding on judicial review. [9] What the Applicant does contest is the RAD’s analysis when assessing whether he has rebutted the presumption of state protection.The Applicant submits that the RAD failed to adopt a contextual approach and ought to have considered the factors set out in GonzalezTorres v Canada (Citizenship and Immigration), 2010 FC 234 [Gonzalez] at paragraph 37, namely: 1. The nature of the human rights violation; 2. The profile of the alleged human rights abuser; 3. The efforts that the victim took to seek protection from authorities; 4.

The response of the authorities to requests for their assistance; and 5. The available documentary evidence. [10] The Applicant highlights the profile of Mr. A, the seriousness of the injuries suffered by the Applicant when he was assaulted, thecalls to the police by the security personnel at the Applicant’s workplace, and the threats made by Mr. A and his gang.

The Applicantstates that taking into account these particular circumstances, he has succeeded in rebutting the presumption of state protection. [11] The Respondent submits that the Applicant has simply failed to provide clear and convincing evidence that state protection isinadequate. In particular, the Respondent notes that the Applicant did not report the harassment and threats following Mr. A.’s arrest tothe police. The Applicant testified, when asked whether he thought about going back to the police to report the threats, that he "“did notthink about that”" and he "“did not go back”".

The Respondent relies on Memia v Canada (Citizenship and Immigration), 2021 FC 349[Memia] and pleads that the Applicant cannot fault the police for not offering protection when the Applicant did not report the crime.The Respondent further submits that the police have been responsive to the Applicant. When the Applicant filed his police report for theassault, Mr.

A was arrested the following day and convicted within months of his arrest. [12] I agree with the Respondent that state protection cannot be rebutted when it has not been tested (Camacho v Canada (Citizenshipand Immigration), 2007 FC 830 at para 9; Memia at para 21). In the present case, the RAD emphasized the fact that the Applicant neverreported the harassment and threats to the police. [13] The Applicant submits that the security personnel at his workplace called the police on several occasions and they never came.

Assuch, in the Applicant’s view, the RAD should have considered this as if the Applicant himself had called the police. The Applicant hadtestified that an unnamed person in charge of security had made calls to the police and he had waited 3-4 hours at the office, but no onecame. [14] The RAD did expressly consider the calls by the security personnel but concluded that the Applicant had not provided clear andconvincing evidence that explains why he did not personally seek the protection of the police or make a complaint in relation to thethreats made by Mr. A. and his gang.

The RAD dealt with the Applicant’s testimony as to why he did not seek assistance from the policein detail, in the Decision. Having considered the record, in particular the Applicant’s testimony and his submissions to the RAD as towhy he did not lodge a complaint with the police, I have not been persuaded that the RAD committed a reviewable error in its analysis. [15] The RAD equally considered all the arguments put forward by the Applicant relating to the documentary evidence, Mr.

A.’s profile,his history of recidivism, the nature of the threats, and the severity of the Applicant’s injuries arising from the assault. I therefore findthat, despite the Applicant’s argument to the contrary, the RAD did adopt a contextual approach as set out in Gonzalez. The RAD dealtwith the factors cited above along with the arguments raised by the Applicant. [16] As indicated above, it is not the Court’s role in judicial review to reweigh the evidence and draw a new conclusion (Vavilov at para125).

In cases when the RAD is called upon to assess and weigh a number of variables, there will generally be room for disagreementregarding the weight to be granted to each piece of evidence. Simple disagreement on these issues is not a ground for judicial review(Gadiaga v Canada (Citizenship and Immigration), 2022 FC 1255 at para 15). [17] Having considered the arguments raised by the Applicant, I am not persuaded that the Decision is unreasonable.

The Applicantclearly disagrees with the weight given by the RAD to the Applicant’s failure to personally seek assistance from the police and hisjustifications for failing to do so. It was, however, open to the RAD based on the record before it to attribute the weight it did to thatevidence. Its resulting analysis is not unreasonable. Furthermore, while the Applicant contends, in the alternative, that it wasunreasonable in light of the context to expect him to complain to the police, this again amounts to a simple disagreement with the RAD’sanalysis of the contextual factors.

The Applicant, in my view, has not identified a reviewable error. [18] For the foregoing reasons, I conclude that the Decision as a whole meets the standard of reasonableness as set out in Vavilov. Thisapplication for judicial review is therefore dismissed. No serious question of general importance for certification was proposed by theparties, and I agree that no such question arises. JUDGMENT in IMM-8669-22 THIS COURT’S JUDGMENT is that: 1. The Applicant’s application for judicial review is dismissed; and

2 . There is no question for certification. “Vanessa Rochester” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8669-22 STYLE OF CAUSE: ABDELKRIM DJABOUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: MONTRéAL, QUEBEC and HELD BY VIDEOCONFERENCE DATE OF HEARING: OCTOBER 18, 2023 JUDGMENT AND REASONS: ROCHESTER J. DATED: OCTOBER 31, 2023 APPEARANCES : Me Fernand Bali For The Applicant Me Sherry Rafai Far For The Respondent SOLICITORS OF RECORD : Me Fernand Bali Montréal, Quebec For The Applicant Attorney General of Canada Montréal, Quebec For The Respondent