Date: 20000628
Docket: IMM-3579-99
Ottawa, Ontario, June 28, 2000
| Present: THE HONOURABLE MR. JUSTICE DENAULT |
Between:
NAMAN DEMAGHLATROUS,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review of the decision of the Immigration and Refugee Board dated July 5, 1999 dismissing the plaintiff's application for refugee status is dismissed.
PIERRE DENAULT
Judge
Certified true translation
Martine Brunet, LL. B.
Date: 20000628
Docket: IMM-3579-99
Between:
NAMAN DEMAGHLATROUS,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board ("the Refugee Division") on July 5, 1999 which concluded that the plaintiff, a citizen of Algeria, was not a Convention refugee.
[2] The plaintiff studied in France for several years and worked at his country's Consulate in Lille from October 1995 to March 1997. The plaintiff received exemption from military service and from March to September 1997 worked for a French company as sales director in Europe and in the Arab countries. As such, he made several trips to Belgium (5), England (7), Germany (2) and Canada (1). In September 1997 the plaintiff also worked for a German company, then came to Canada in December of that year with a three-year work permit. He travelled to the U.S. several times and gave up his position in Canada in May 1998, before going to Ohio as a tourist in July. In September, he applied for a new visa for the U.S., then left Toronto to visit his sister in Montréal. He claimed refugee status in October of that year.
[3] Before the Refugee Division, the plaintiff alleged a valid fear of persecution for his political opinions. In support of his fear, the plaintiff mentioned incidents that occurred prior to the fall of 1996, when he held his job with the Algerian Consulate in France. The plaintiff also feared persecution because he refused to do his compulsory military service.
[4] In its decision the Refugee Division concluded, for various reasons that should be briefly mentioned, that the plaintiff had not established a valid fear of persecution if he returned to Algeria. First, the tribunal noted that the plaintiff's many trips between 1996 and the date of his claim did not support the alleged subjective fear. Then, it was noted that when questioned about the fact he had taken no action to seek refuge in the countries visited and his delay before claiming refugee status, the plaintiff answered that after considering immigration, he found this process too long and costly and decided to claim refugee status.
[5] The tribunal did not believe that the plaintiff, who was hired as an administrative officer, had, while at the Algerian Consulate in Lille, performed the duties of secretary general of the parliamentary elections in which he allegedly refused to countenance certain fraudulent practices, and that this had resulted in threats and accusations against him by a military officer on duty. The Refugee Division also found improbabilities in the existence of the problems alleged by the plaintiff with the Algerian government, including the suggestion that his father, a former ambassador and minister, had become a political pariah. Finally, the Refugee Division devoted some time to rejecting the principal argument alleged by the plaintiff, namely his fear of doing his military service if he had to return to Algeria.
[6] At the hearing of the application for judicial review counsel for the plaintiff did not deal at length with the aspects of the decision affecting his client's activities and trips, his failure to claim refugee status in the various countries visited and the delay in making his claim in Canada. In short, there was no lengthy argument about the aspects which cast doubt on the plaintiff's credibility, and with reason. I consider that the tribunal's decision in this regard was not unreasonable: its assessment of the documentary evidence and the plaintiff's testimony and the inferences which the tribunal drew from these provide considerable support for the conclusion that the plaintiff had not established the existence of a subjective fear.
[7] Additionally, counsel for the plaintiff vigorously challenged in the Refugee Division's decision its conclusion that there was no fear of doing his military service if he returned to Algeria. Counsel argued that the plaintiff, who was 30 years old when his application for refugee status was heard - he was born on December 8, 1968 - was still required to perform his military service and if he had to do so he risked being persecuted because of his past or because of prior incidents, or worse, of being regarded as a deserter, in which case he would be liable to the death penalty.
[8] In short, counsel for the plaintiff objected to four of the reasons given the tribunal for finding the plaintiff not credible when he said he feared doing his military service: (a) as he was over 30 years old, he was exempt; (b) the plaintiff is a "privileged case" who, as he had held a position of administrative officer with the Algerian Consulate in Lille, France for 18 months had performed the civil rather than the military side of national service; (c) the refusal to attach any evidentiary force whatever to a stay issued by the chief of the recruiting office in March 1997, when it should have been issued by the high commissioner of national service as the plaintiff was then more than 27 years old; (d) liberalizing measures announced by a proposed reform of military service in Algeria were treated by the tribunal as an exemption that would apply to the plaintiff.
[9] Despite the very able submissions of counsel for the plaintiff, I consider that there is no basis for the Court's intervention in the case at bar.
[10] It is true that a document dated 1997 from the Federal Office for Refugees concerning military service in Algeria, a document on which the tribunal appears to have relied, summarily states that [TRANSLATION] "the call-up period for active service is from 19 to 30 years old",1 while another more recent document (1999) from the IRB Documentation Centre2 indicates in detail that [TRANSLATION] "citizens 30 years and older at November 1, 1989 are exempt from national service". In short, if this second document is to be believed in preference to the first, the plaintiff is still subject to national service as he was not at least 30 years old on November 1, 1989.
[11] It is also true that the tribunal may have drawn an exaggerated inference from the [TRANSLATION] "plaintiff's progress" at the Algerian Consulate in Lille, describing him as a privileged case who did the civil side of national service rather than the military side. The documentary evidence3 indicated that before being required to perform [TRANSLATION] "economic, administrative, social, cultural or national defence duties", Algerians called for national service receive basic military training in training centres for six months.4 The plaintiff's curriculum vitae did not indicate that he received such basic training.
[12] The fact remains that the tribunal concluded that the plaintiff had never received any summons to do his military service when he was eligible for it and had had no concern about this. The tribunal also refused to attach any evidentiary weight to a stay issued on March 2, 1997 by the chief of the recruiting office,5 when according to the documentary evidence6 a student over 27 years of age could only obtain such an exemption from the high commissioner for national service. However, it noted the existence according to the documentary evidence of dies offering [TRANSLATION] "authentic and unforged exemptions" valid abroad.7
[13] Most importantly, the Refugee Division noted an article in the Algerian daily newspaper "Le Matin" published on May 6, 1999, a few days before the hearing, discussing a proposed reform of military service in Algeria, in which it noted that [TRANSLATION] "liberalization measures have been in effect for several months for young Algerian administrators forced to remain abroad because of national service".8 This proposed reform, some provisions of which were already in effect, was something of a rebuttal to the plaintiff's argument that he is still subject to national service. It tended rather to validate the tribunal's conclusion that the period for call-up for national service was from 19 to 30 years old. In short, the Refugee Division considered all the evidence on this point and interpreted it in a way that was not unreasonable.
[14] I consider that in the circumstances it was not unreasonable to conclude that the plaintiff did not establish the subjective aspect of his fear of doing his military service when he returned to Algeria.
[15] The application for judicial review must accordingly be dismissed. There is no basis in the case at bar for certifying a serious question of general importance.
PIERRE DENAULT
Judge
Ottawa, Ontario
June 28, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-3579-99 |
| STYLE OF CAUSE: NAMAN DEMAGHLATROUS |
v.
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 17, 2000
REASONS FOR ORDER BY: DENAULT J.
DATED: June 28, 2000
APPEARANCES:
| DENIS GIRARD FOR THE APPLICANT |
| CHRISTINE BERNARD FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| DENIS GIRARD FOR THE APPLICANT |
MONTRÉAL, QUEBEC
| MORRIS ROSENBERG FOR THE RESPONDENT |
DEPUTY ATTORNEY GENERAL OF CANADA
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