TC0-01558

RAD File / Dossier de la SAR : TC0-01558 TC0-01559 / TC0-01560 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 4, 2020 Date de la décision Panel Cynthia Pay Tribunal Counsel for the persons who are the subject of the appeal Tina Hlimi Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] This decision is about XXXX XXXX XXXX (the principal Appellant), her adult son XXXX XXXX XXXX XXXX XXXX (associate Appellant) and her minor daughter XXXX XXXX XXXX (minor Appellant), who are citizens of Barbados. They are appealing a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They allege that they fear returning to Barbados because of threats by unknown criminals who believe that XXXX, the principal Appellant, may have received a package belonging to them containing drugs. The RPD rejected their claims because they did not rebut the presumption of state protection in Barbados. The Appellants argue that the RPD breached procedural fairness, as it rushed their hearing, did not have access to all of their documentary evidence until right before the hearing, and failed to ask why the principal Appellant did not try to follow up with more senior levels of the police force in her attempt to access state protection. Based on my review, I find that the issue of state protection is determinative of the Appellants' claims, and that the RPD did not err in finding that they did not meet their burden of rebutting the presumption that adequate state protection was available to them. I also find that the RPD did not breach procedural fairness by rushing the hearing.

DECISION [2] After considering their arguments and all of the evidence, I dismiss the Appellants' appeal, and confirm the RPD's determination pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or Act).

BACKGROUND [3] The principal Appellant claims that before coming to Canada she worked in the XXXX XXXX in Barbados. She has two children, a son who is now an adult, and a younger daughter. She alleges that in XXXX 2018, while she was at work at the XXXX XXXX, she received a call about a package that had her name on it, but it was misspelled. She advised the caller that she was not expecting a package and did not recognize the name of the sender and did not pick up the package or follow up on this as she was off work sick for two weeks. Soon after this, the police from the drug squad attended at her home stating that they had a search warrant in connection to a package of drugs. She was cleared in connection to the package, and the police asked if she would be willing to help with the investigation and testify if needed. Two weeks later, she received a visit from two men, one of whom she recognized as the brother of a customer at the XXXX XXXX. They accused her of receiving a package that belonged to them. She explained that she had not received the package and showed the documentation she had received from the police. They threatened her and mentioned that they have people working for them in the police, including a man named "XXXX XXXX". The principal Appellant claims that she was afraid and went to report this visit to the police the next day. When she mentioned "XXXX XXXX"

she claims that the officer said, "He knew XXXX?" After this she received a call and she recognized the person's voice as one of the men who threatened her, so she hung up. She also saw cars driving by her home. She attempted to get help from the police a number of times, but there was no result. She was distraught and sought counselling. Both her counsellor and medical doctor advised her to leave the country. The principal Appellant decided that she needed to leave Barbados in order to be safe. She and her two children arrived in Canada in XXXX 2019, and made refugee claims here later in the same month. [4] The Appellants' claims were heard by the RPD on December 2, 2019. In its reasons dated December 20, 2019, it found that the Appellants had not rebutted the presumption that adequate state protection was available to them, as although the principal Appellant had contacted the police several times, she did not attempt to go to a higher level when she did not receive the assistance that she was looking for. Further, it found that Barbados is a democracy where civilian authorities maintain effective control over the police, and that although there are issues stemming from resource limitations in the police force, there are serious efforts to improve the effectiveness of the police through training and investigation. In the Appellants' case, the police did respond to the

principal Appellant's report, taking a statement and providing a police escort to her home when requested. [5] The Appellants have appealed this decision to the Refugee Appeal Division (RAD). They argue that the RPD erred in its determination, as it breached procedural fairness by rushing the hearing, rushing its review of documentary evidence that was initially missing from the member's copy of the file, and questioning the principal Appellant in a superficial manner. They further argue that the panel erred in failing to ask sufficient questions about the principal Appellant's efforts to access state protection, specifically if she had an explanation for not pursuing a higher level of the police force; in failing to consider articles about how the Barbados police work with drug traffickers; and in failing to consider the connection of the agent of persecution and the state.

ANALYSIS Role of the RAD [6] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of evidence. In this appeal, I was able to review and clearly understand the record, including the recording of the hearing. I, therefore, do not find that the RPD was in an advantageous position in assessing the evidence, and I do not apply a deferential standard.2 The RPD did not breach procedural fairness [1] [2] [3] [4] [5] [6] [7] The Appellants argue that the RPD breached procedural fairness by rushing their hearing. They allege that the member came into the hearing room and advised them that she only had 90 minutes for the hearing and that she would be leaving the Board soon, so she would not be seized if they could not finish the hearing that day. They allege that the panel member seemed overwhelmed and rushed. The Appellants also assert that a package of important documentary evidence was missing from her copy of the file, including letters from the principal Appellant's counsellor and her husband as well as news articles, and that the member only took 10 minutes to review these documents before

the hearing. They further allege that the panel questioned the principal Appellant in a superficial manner because of these time pressures. The Appellants had already travelled to Toronto from Sudbury for a previous hearing date that had to be adjourned, and argue that they felt under time pressure, which negatively impacted their opportunity to present their case. They do not present new evidence or request an oral hearing. [8] Based on my review of the record, I disagree with the Appellants' argument, and find that the RPD did not breach procedural fairness by rushing the hearing. I have no evidence before me regarding any discussions off the record before the hearing started except for references during the recording of the hearing as will be discussed below. Based on my review of the recording of the hearing, however, I find that the RPD did not breach procedural fairness by rushing the hearing. The panel began the hearing in a calm and measured tone and pace as she introduced herself, had the Appellants introduce themselves, and reviewed the exhibits and explained the process to the Appellants.3 A question was raised regarding the presence of the principal Appellant's son in the hearing room because she was concerned that her son had not heard all of the details of the case. The panel noted that he was XXXX years old and therefore an adult claimant who should be present

during the hearing, and the question of disjoining the claims and an adjournment was discussed. The principal Appellant agreed that her son could remain in the hearing room and agreed to continue the hearing of the family's joined claims.4 The member advised the Appellants that they had until 3:30 pm that day to complete the hearing, as had been discussed off the record before the hearing began.5 The Appellants did not object to continuing the hearing that day. I note that they were represented by counsel during their hearing, but they did not request an adjournment of the hearing, even though that was an option discussed in relation to disjoining the claims, or object to the timeline for the hearing proposed by the panel. Based on my review of the recording of the hearing, I further find that the panel did not appear to be overwhelmed or in a rush throughout the rest of the hearing, but conducted it in a similarly calm and appropriately-paced fashion. [9] Based on my review of the recording of the hearing, I find that the panel did not question the principal Appellant in a superficial way as alleged. I find that the panel fairly canvassed the issues that were identified, clearly identified issues of concern and asked questions about these issues and followed up for additional detail and clarification where necessary. The panel did note that she did not have many questions for

the principal Appellant, but her examination nevertheless ended up taking almost 40 minutes, which I find was not an unreasonable period of time given the fact that no interpreter was required, and the Appellants' claim was focused on only one main incident regarding the alleged package sent to the principal Appellant. [10] Further, the Appellants' legal representative was given the opportunity to examine her client, and had the opportunity to cover any potential gaps in or superficial coverage of the evidence.6 I note that the panel did not restrict the Appellants' legal representative in her re-examination of her clients or with respect to the amount of time provided for her questioning, and that the Appellants' legal representative indicated that she had finished her re-examination of her clients at the 50-minute mark of the hearing.7 No concerns or objections were raised by the Appellants regarding a lack of time to present their evidence. Further, I note that, although the practice of the RPD is to use an inquisitorial model of adjudication, by first examining the claimants/witnesses, it is up to claimants, not the panel, to present and prove their allegations, especially when they have legal representation at their hearings. [11] Regarding the package of materials initially missing from the member's file and the Appellants' allegation that the panel was rushed in its

review of this evidence, I find that the Appellants have not established that this resulted in a breach of procedural fairness. This material was before the RPD before the hearing began and the panel took time to review it before the hearing began. Further, the panel reserved its decision, so it could review the documentary evidence during its deliberations at its leisure, and the Appellants had the opportunity to provide written submissions with respect to the oral and documentary evidence after the hearing ended. I therefore do not find that there was a breach of procedural fairness. The RPD did not err in its finding regarding state protection [12] Part of the test to determine whether or not someone is a Convention refugee is whether they can seek protection from the authorities in their own country. In other words, is state protection available? When there is a functioning government, there is a legal presumption that states are able to protect their own citizens. [13] The RPD found that the Appellants had not rebutted the presumption of state protection. It found that even if the principal Appellant reported the claimed threat to the police and tried to follow up a number of times but found the police response to be ineffective, she did not pursue her report by attempting to contact a higher level of the police force. The RPD noted that Barbados is a democratic country

and that the government has effective control of the police. Barbados is given high scores on measures of rule of law, and although there are resource limitations, there is an effective police force. In the Appellants' case, the RPD found that the police did take the principal Appellant's statement and gave her a police escort home when requested. [14] The Appellants argue that the RPD erred in this determination, as it did not ask her a follow up question regarding whether she had an explanation for why she did not pursue her complaint to a higher level of the police force. She cites examples from the objective country condition evidence for Barbados regarding crime rates and political figures protecting drug traffickers as well as articles documenting incidents where police officers were working with drug traffickers. She argues that state protection needs to be operational, and that the link between the alleged agent of persecution and the state must be considered in assessing whether or not she had exhausted all avenues for state protection. [15] Based on my review of the RPD reasons, the record, and the Appellants' arguments, I find that the RPD did not err in its finding regarding state protection. Although the country condition evidence shows some deficiencies in the level of state protection, the test focuses only on whether state protection is adequate. I find that the

Appellants have not provided clear and convincing evidence that adequate state protection is not available to them, and further, that they have not shown that they have exhausted all avenues for state protection. Presumption of State Protection and Contextual Approach [16] There is a presumption that the state is capable of protecting its citizens, except in cases where the state is in a complete state of breakdown. To rebut this presumption, a claimant must persuade the Board with clear and convincing evidence that establishes on a balance of probabilities that state protection is inadequate. The onus is on the Appellants to establish that protection is inadequate. In my assessment of whether the presumption of state protection has been rebutted, I must take a contextual approach, considering factors such as the specific risk alleged, the identity of the persecutor, the Appellants' personal situations, their efforts to seek protection, the response of the authorities, and the country conditions. Personal situation of the Appellants [17] The principal Appellant is a woman who is well-educated and does not indicate that she suffers from any disability or that she is marginalized in any other way. I note that the Appellants argue that the RPD did not refer to the Chairperson's Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution in its reasons, but while I

recognize that gender discrimination is an issue facing women in most or all countries across the world, the Appellants do not explain how the principal Appellant's gender impacts her ability to access state protection, and I see no basis to find that it was a significant impediment to her. She is not complaining about gender-specific violence that may be stigmatized. The principal Appellant holds a XXXX XXXX XXXX and worked in XXXX XXXX XXXX positions for many years in the XXXX XXXX in Barbados. She is married to a man who is still working for the XXXX XXXX and living in Barbados. I note that the associate Appellant is a young adult, and the minor Appellant is a child who is living with autism, which are factors that may make them more vulnerable, but it is the principal Appellant who is the one who was responsible for accessing state protection and the one who contacted the police. I find that she does not face any significant personal characteristics that might make her more vulnerable or that she would face significant discrimination or other barriers to accessing state protection. Appellants' efforts to seek protection and the response of the authorities [18] One of the factors that I must consider is whether the Appellants have approached the state for protection, and whether they have exhausted all of their available courses of action. In the Appellants' case, they state

that the principal Appellant attended at the police station to report the threats and followed up with the police a number of times. They claim that they attended at two different stations and called the police a number of times, but that the protection offered by the police was not adequate. The principal Appellant did not pursue the complaint to a higher level within the police force, however, and as a result, the RPD found that the Appellants did not exhaust all courses of actions available. [19] The more democratic the state's institutions are, the more a claimant must do to exhaust all courses of action available. In my findings, I am required to consider the context of the country, steps taken by the Appellants, and their interaction with the authorities. [20] In the case of Barbados, I find that it is a democratic state that is rated highly in terms of political rights and civil liberties,8 and that the Appellants' burden of proof to show that they had exhausted all courses of action available to them is high. [21] Based on the principal Appellant's account of her interactions with police, I find that she did not establish that she had exhausted all of her recourses in accessing state protection. According to her evidence, she did make a report to the police and followed up a number of times. She reports that she contacted the police after the men attended at her house

looking for the package but did not get the protection that she wanted, as follows: I was scared and overwhelmed; I went back to the police drug squad the next morning on XXXX XXXX, 2018 in tears. I spoke with Officer XXXX (I believe that was his name) and he told me not to cry, saying that the men only thought I had their drugs because they did not know the police drug squad had already taken them. I told them one of the men had mentioned XXXX XXXX from XXXX XXXX XXXX, and the officer said, "He knows XXXX?' I told them that I did not know who to trust, and the police had told me before that they would not put me in danger. I asked if they could guarantee that the men would not return, but the officer said no and that he could not promise me that. The officer then told me to give a statement at the XXXX Police Station. XXXX Station told me they would send the file to the XXXX XXXX Police Station because it was the closest station to my home. The following week, in XXXX 2018, I received a call from the brother of XXXX XXXX. When I heard his voice, I hung up. I attended the police station at XXXX XXXX to request a police escort home from work. They did not yet have my police file. The two police escorts told me that I lived in a dangerous area, because there is only one way in and out of the road (a cul de sac). They said to tell my husband to reverse in the gap so that if we

came home and met trouble we could drive out quickly. They told me to call them if anything happens or if I noticed anything strange. I checked with the XXXX XXXX Station a few days later, to see if they had the file and they said no, because it had to go to the Central Police Station first before it came to them. As time went on I saw strange vehicles driving through the gap by my house. Sometimes the vehicles would park in front of my house or drive by, just staring, and in some cases, pointing to where I live. I called XXXX XXXX Police Station several times between XXXX 2018- XXXX 2019, to tell them that someone drove through the gap and stopped in front of my house, pointing it out to their passenger. The first time the female police officer told me to call the Criminal Investigation Department because they should be protecting me. But when I called, they referred me back to XXXX XXXX Police Station. The female police officer apologized on behalf of the Barbados police force because they liked to pass off their work to others, as she phrased it. She told me I was in grave danger and that I should be protected by the Criminal Investigation Department. I felt helpless by the police, despite repeatedly calling them about the same incidents of strange vehicles stopping by my house. The police would always respond, "What would you like us to do m'aam?' This made me realize I

could not seek protection from them.9 [22] The Appellants have also provided documentation of attempts to obtain copies of the principal Appellant's police statement and records but have not submitted any copies of these materials to the Board.10 [23] The RPD asked the principal Appellant if she considered going up the chain of command in the police force to contact someone such as the chief of police or superintendent, as she did not feel that they offered the level of protection that she wanted. The principal Appellant responded by explaining that the only thing she did was to go to the XXXX XXXX division, where a female police officer told her that they should be protecting her, and that she was referred to the criminal investigation department, and then sent back to XXXX XXXX, as also outlined above.11 The RPD found that the Appellants had not taken their concerns about alleged police inaction to a higher level, as the principal Appellant did not try to pursue her complaints to a higher level within the police force, despite her dissatisfaction with the result of her report to the police. [24] The Appellants argue that the RPD erred in failing to ask her if she had an explanation for why she did not pursue her report to a higher level in the police force. I disagree. The RPD did canvass this issue, and ultimately, it is up to the Appellants to establish their case, and to

rebut the presumption of state protection. As discussed above, the Appellants had legal representation at their hearing, and their lawyer was given the opportunity to re-examine the Appellants and fill in any gaps in the evidence. The issue of state protection was clearly identified as an issue at the beginning of the hearing.12 I find that the RPD did not err in failing to ask this question, and agree with its finding that the Appellants did not establish that they had exhausted all of their recourses in accessing state protection. [25] Further, based on the principal Appellant's evidence, although the police did not find the alleged perpetrators, they did take her report, and provided a police escort when requested. These factors suggest that the police were responsive to the reports made by the principal Appellant and undermine the Appellants' assertion that adequate state protection was not available to them. The principal Appellant states in her Basis of Claim narrative that she asked the police officer "if they could guarantee that the men would not return, but the officer said no and that he could not promise me that,"13 but I find that does not mean that state protection was not adequate. I find that an expectation that the police would provide a guarantee that the men would not return was not realistic. Country condition evidence [26] The country condition evidence

suggests that Barbados does offer adequate state protection to victims of crime. [27] As noted above, Barbados scores well in terms of political rights, the rule of law and due process. Excessive delays in the court system are noted, but the government is attempting to address these through new legislation.14 Limited information about the operation of the police and criminal justice system is available in the National Documentation Package for Barbados, but evidence documenting efforts to improve protection for marginalized victims such as women, victims of domestic violence, and victims of human trafficking support a finding that state protection is adequate there.15 Regarding domestic violence, for example, legislation requires that police respond to every complaint of domestic violence and provides them power to issue emergency protection orders,16 although some sources have reported that police response is often slow and inadequate.17 [28] The Appellants argue that the objective country condition evidence includes evidence of unprofessional police conduct, but I note that the same report that they cite also states that there is no evidence of systemic police abuse.18 They also argue that there is evidence that political figures protect drug traffickers, but I note that the report citing this also states that this is based on a suggestion by an opposition political leader,

and that the same report scores Barbados at 3 out of 4 regarding safeguards against political corruption.19 The articles provided by the Appellants cite anecdotal examples of corruption, for example, a member of the coast guard was accused of accepting a bribe,20 but do not establish on a balance of probabilities that the police are generally corrupt or are working with drug dealers or the specific alleged agents of persecution in their claim. These allegations are insufficient to establish that state protection is inadequate or make it objectively unreasonable for them to seek the protection of the state. [29] Although there is evidence regarding problems and a need for improvement in the effectiveness of the police in Barbados, I also find that the objective evidence is supportive of a finding that adequate state protection is available in Barbados. I find that Barbados is a democratic country with high ratings for the rule of law. The government has control of the police and makes concrete efforts to improve protection for its citizens, such as victims of domestic violence and trafficking, and in addressing concerns such as delay in the court system. Identity of the persecutors [30] The principal Appellant reports that she recognized one of the two men who she claims to have come to her home and threaten her as the brother of a customer she had seen at the XXXX XXXX, and

that the other man was the customer's father. She also alleges that they referred to a man named "XXXX XXXX," who allegedly works in the police force, as a person who will assist them; and that when she was reporting the threats, the officer she was speaking to appeared to recognize the name and asked, "[h]e knows XXXX?" when she mentioned the name.21 The Appellants also provide documentary evidence which they argue provide examples of police working with drug traffickers, and suggest in their submissions to the RAD that the link between the agent of persecution and the state should be considered in assessing whether they had made enough effort to exhaust all avenues in seeking state protection. [31] Based on my review of the record and the Appellants' arguments, I find that they have not established on a balance of probabilities the identities of the agents of persecution or that they are linked to or are agents of the state. The principal Appellant claims that she recognized the men who allegedly came to her home to threaten her but provided no other detail regarding who they are or to show their alleged connection to the police. The connection between them and the police, based on the mention of the name, "XXXX XXXX," is weak, and based only on the claim that he was mentioned by the alleged agents of persecution, and that the police officer appeared to recognize the

name. [32] As discussed above, the Appellants argue that the objective country condition evidence includes evidence of unprofessional police conduct and that there is evidence that political figures protect drug traffickers, but as outlined above, overall I find that the objective country condition evidence supports a finding that state protection is adequate, and that the Appellants have not presented clear and convincing evidence that that is not the case. Their allegation that the police are generally corrupt or are working with drug dealers or the specific alleged agents of persecution in their claim has not been established on a balance of probabilities, and is insufficient to undermine the RPD's finding that the Appellants did not make enough efforts to seek state protection in Barbados rather than seeking international protection in Canada. [33] Considering the Appellants' arguments and all of the factors outlined above, I find that the Appellants have not rebutted the presumption of adequate state protection in Barbados.

CONCLUSION [34] On the basis of the findings outlined above, I dismiss the appeal. I agree with the RPD that the Appellants have not met their burden of rebutting the presumption of state protection. As a result, I confirm the determination of the RPD pursuant to paragraph 111(1)(a) of the IRPA. (signed) Cynthia Pay Cynthia Pay November 4, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Ibid. 3 RPD Hearing Recording, December 2, 2019, at approx. 0:01-0:03. 4 Ibid., at approx. 0:05-0:07. 5 Ibid., at approx. 0:03-0:05. 6 Ibid., at approx. 0:39-0:50. 7 Ibid., at approx. 0:50. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Barbados (March 29, 2019), item 2.2: Barbados. Freedom in the World 2018, Freedom House, 2018. 9 Exhibit RPD-1, RPD Record, Exhibit 2.1, at pp. 26-27, para. 19-26. 10 Exhibit RPD-1, RPD Record, Exhibit 4.3, at pp. 145-147; Exhibit RPD-1, RPD Record, Exhibit 4.5, at pp. 172-173. 11 RPD Hearing Recording, December 2, 2019, at approx. 0:34-0:35. 12 Ibid., at approx. 0:03. 13 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 26. 14 NDP for Barbados (March 29, 2019), item 2.2, supra, footnote 8, at pp. 1, 5. 15 NDP for Barbados (March 29, 2019), item 5.5: Domestic violence, including legislation; recourse and support services available to victims (2015-January 2017), Immigration and

Refugee Board of Canada, Response to Information Request BRB105717.E., 3 March 2017; NDP for Barbados (March 29, 2019), item 7.1: BARBADOS: Tier 2. Trafficking in Persons Report 2019, United States. Department of State, 20 June 2019. 16 NDP for Barbados (March 29, 2019), item 5.5, supra, footnote 15, at pp. 6/37-7/37. 17 Ibid., at pp. 9/37-10/37; NDP for Barbados (March 29, 2019), item 5.3: Country Gender Assessment: Barbados, Caribbean Development Bank, January 2016, at p. 65/118. 18 NDP for Barbados (March 29, 2019), item 2.1: Barbados. Country Reports on Human Rights Practices for 2018, United States. Department of State, 13 March 2019, at p. 1. 19 NDP for Barbados (March 29, 2019), item 2.2, supra, footnote 8, at p. 3. 20 Exhibit RPD-1, RPD Record, Exhibit 4.4, at p. 156. 21 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-01558 TC0-01559 / TC0-01560 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français