Date: 20050909
Docket: IMM-10132-04
Citation: 2005 FC 1230
Vancouver, British Columbia, Friday, the 9th day of September 2005
Present: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
RABAH BEDJAOUI,
SAMIRA ZENATI and SLIM BEDJAOUI
Applicant(s)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 28, 2004, wherein the Board determined that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the IRPA. The Board found that the applicants did not have a well-founded fear of persecution or risk in Algeria, and also found that the objective basis for the fear was insufficient to support a refugee claim.
[2] The principal applicant ("PA"), Rabah Bedjaoui, is a citizen of Algeria. His wife, Samira Zenati, and his son, Slim Bedjaoui, are also citizens of Algeria and are the other two applicants in this application.
[3] The PA alleges that he has a well-founded fear of persecution in Algeria due to the fact that he is a Berber and an Atheist. His wife and minor son alleged the same fear, and his minor son also sought protection on the basis of fear of having to serve in the Algerian military.
[4] The PA also notes briefly that he is a Berber, and that they are humiliated, treated badly, and subject to intolerance by the fundamentalists. He alleges that he fears persecution on the basis that he is a Berber.
[5] The PA's son alleges persecution based on the fact that he will refuse to serve in the Algerian military when he reaches the age of majority. He claims that he will be prosecuted for desertion if he refuses to serve. He testified that joining would make him a target for religious extremists.
[6] The applicants' claim was heard by the Board on October 28, 2004, and an oral decision was rendered at the hearing. The written reasons followed on November 16, 2004. The Board found that the applicants were not Convention refugees or persons in need of protection.
[7] The Board found that the adult applicants lacked a subjective fear, or a well-founded fear of persecution, in Algeria.
[8] The Board determined that the PA had not shown any link between being a Berber and persecution. The Board noted that the PA may have experienced some discrimination in the past, but found that discrimination is not sufficient to raise an issue of protection.
[9] Concerning the PA's fears about being persecuted on the basis of his atheism, the Board found that almost all of the applicants' problems related to their former home in Khrecia (or Khraicia), which is situated thirty (30) kilometres outside of Algiers. The family, having moved to Algiers, had not lived in Khrecia since 1996, but had kept the official family home which is the source of the problems. The Board found that the applicant could have avoided "virtually all" of his trouble by disposing of the house in Khrecia. The Board was satisfied that the applicants could have avoided trouble by leaving Khrecia, especially since they have now come all the way to Canada to deal with the problem.
[10] The Board then turned to the objective fears of the applicants. It notes that they lived in Algiers for the past seven or eight years, prior to coming to Canada without problems. The Board concedes that, while there is still violence in Algeria, there is more security in the cities. It concluded, on the balance of probabilities, that the applicants have not been targeted personally, other than in Khrecia, which connection could have been severed at any time after 1996.
[11] On the subject of general violence in Algeria, the Board also notes that the PA and his wife are professionals who have worked for the government for 20 years, that they have not been targeted for violence in that capacity, nor have they been targeted in Algiers since 1996.
[12] Finally, the Board deals with the minor son's potential conscription for military service. The Board determined that the law about military conscription is a law of general application and that laws of general application have been accepted by the Court, including laws of conscription. The Board noted two exceptions: (i) if the person is a genuine conscientious objector, or (ii) if the person is not willing to serve in combat that has been condemned by the international community as contrary to international law, and that neither exception applied to the present situation and that the current penalty for refusing to report for military service is not persecutory and does not support a refugee claim.
[13] The Board concludes by finding that the applicants are not Convention refugees or persons in need of protection.
[14] At the outset, the counsel for the applicants conceded that the Board's conclusion with respect to the adults' negative result would not be challenged. The only issue raised by the applicants relates to a lack of analysis dealing with the potential conscription of the PA's minor son when he attains the age of majority. The Board determined that general laws of application, such as conscription, have been accepted by this Court in the past. In Moskvitchev v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1744, Dubé J. considered the argument that a Post-Claim Determination Officer erred in finding that a sentence of between six months and five years was not inhuman or extreme. Dubé J. concluded that the PCDO had not erred. It is suggested that a more in-depth analysis of the subjective and objective fears of the minor son should have been undertaken.
[15] The respondent argues that there was no evidence advanced by the minor applicant or his parents that required further comment.
[16] The issue of the military being infiltrated by extremists in Algeria was rejected as it was not supported by the verbal testimony or documentary evidence. The Board found it to be speculative.
[17] When testifying before the Board, the young man, then sixteen years of age, agreed that in the past the family returned to Algeria, after visits to Germany, and that he was "not afraid". "I don't want to serve in the army. That's all." Further answers: "I wanted to continue going to university and I wanted to do army here but not back in my country."
[18] Finally, when the presiding member was to close his questioning of the minor claimant, he interjected: "I just wanted to be able to continue my studies here."
[19] There is no evidence whatsoever to support a further or more detailed analysis of subjective or objective fear as it relates to the minor applicant. It is obvious from his own testimony that he preferred to stay in Canada to pursue his studies. Even if required to serve in the Algerian forces, as Dubé J. wrote in Moskvitchev v. Canada, supra, any penalty imposed wold not be extreme or inhuman. The documentary evidence reveals that draft evaders are receiving more lenient sentences and, in some cases, there may not even be further prosecution. There is no merit to this application for judicial review and it is hereby dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
(Sgd.) "P. Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10132-04
STYLE OF CAUSE: RABAH BEDJAOUI et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 7, 2005
REASONS FOR ORDER AND ORDER: ROULEAU J.
APPEARANCES:
Mr. D. Blake Hobson FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Hobson and Company FOR APPLICANT
Surrey, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON