TB5-10897

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 File No. / N° de dossier de la SAR : TB5-10897 TB5-10898 TB5-10899 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 20, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard M Addinall Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Joe Thipphawong Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration (the Appellant) appeals a decision of the Refugee Protection Division (RPD) granting refugee protection to the Respondents, XXXX XXXX XXXX XXXX XXXX XXXX XXXX a citizen of Peru and Spain, XXXX XXXX XXXX XXXX XXXX XXXX XXXX a citizen of Peru and a permanent resident of Spain, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX a citizen of Peru and Spain. The Appellant has not submitted new evidence in support of this appeal and an oral hearing has not been requested. The Appellant requests that the Refugee Appeal Division (RAD) reassess the country condition evidence for Spain on which this claim for protection is based. The Appellant further requests that the RAD set aside the determination of the RPD and substitute a determination that the Respondents are not Convention refugees nor persons in need of protection. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. [2] XXXX XXXX XXXX XXXX was appointed the designated representative for her daughter, the minor Respondent, XXXX. Determination [3] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its decision that the Respondents are neither Convention refugees nor persons in need of protection. The appeal is allowed. Background [4] The Respondents alleged the following in their claims before the RPD: [5] XXXX and XXXX married in 2006 in Spain and were subsequently separated. XXXX entered into a common-law relationship with XXXX XXXX XXXX XXXX XXXX XXXX in 2011. XXXX found out that XXXX was a member of a criminal gang (XXXX XXXX XXXX) and XXXX assaulted XXXX in Peru and Spain and he was abusive to XXXX. [6] XXXX returned to Peru in 2011 to escape XXXX but he followed her and assaulted her. She made a police report and an injunction against XXXX was issued. XXXX continued to threaten her and she moved to another province but XXXX found her. [7] XXXX returned to Spain in XXXX 2011 but XXXX came to her home in Barcelona and threatened to kill XXXX and XXXX to punish her. XXXX was sent to Canada to be with her grandmother. [8] XXXX returned to Peru in XXXX 2013 but XXXX followed her again, assaulted and raped her. She complained to the police again. She returned to Spain and XXXX began to follow her in Spain and continued to threaten her. [9] XXXX returned to Spain in XXXX 2014 to receive medical treatment and XXXX and XXXX got back together. XXXX travelled to Canada in XXXX 2014 to see if her mother could help her and returned to Spain two weeks later to be present for XXXX medical treatment. XXXX and XXXX returned to Canada in XXXX 2014 and made inland claims in May 2015. [10] On XXXX XXXX, 2015, XXXX was beaten by XXXX and others. They demanded to know XXXX whereabouts. On XXXX XXXX, 2015, XXXX and the same men beat XXXX again. XXXX contacted a smuggler and arranged for a false Spanish passport and travelled to Mexico and then Canada, where he made a claim for protection on XXXX XXXX, 2015. [11] While XXXX made reports to the Peruvian police, she believes they are either unwilling or unable to protect her and her family. In addition she alleged that XXXX comes from a wealthy family with many contacts in the police and he has family members in the police force in Peru. [12] Neither XXXX nor XXXX approached the police in Spain as they feared XXXX would seriously harm them or have them killed. They further alleged it would be fruitless to seek protection from the police in Spain because of corruption and the failure of authorities to protect women from abuse. They also believe XXXX is able to influence the police in Spain as well as Peru because of his wealth and membership in the XXXX XXXX. [13] The panel in the RPD hearing found that all three Respondents were Convention refugees. The issues [14] The Minister submits the issues in this appeal are the RPD's failure to assess country condition evidence as it relates to the Respondents and the RPD's failure to provide adequate reasons for its decision. [15] The Respondents submit the issues are whether the RPD erred in its credibility findings and in its state protection findings. The role of the RAD [16] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [17] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [18] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's/Respondent's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [19] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [20] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant/Respondent is a Convention refugee or a person in need of protection. The RPD panel's findings and analysis Credibility [21] The panel found both adult Respondents to be credible witnesses as to the harassment, attacks and threats. The panel noted that XXXX allegations were supported by medical and police documentation from Peru and a psychological assessment. State protection in Peru [22] In regard to the availability of state protection in Peru, the panel cited country documentary evidence indicating that corruption was widespread, including in the judicial system and the police. There is also evidence that violence against women and girls remained a serious problem. In addition, the panel noted XXXX testimony that while she made complaints to the Peruvian police they did not respond adequately to her request for protection. The panel further noted XXXX provided reliable evidence of XXXX influence in the Peruvian police through family members. The panel found that the authorities in Peru are unable to provide adequate protection to all the Respondents. State protection in Spain [23] The panel cited country documentary evidence indicating that corruption among government officials and violence against women and children are the most significant human rights problems in Spain.2 [24] The panel noted a range of actions taken by the government to combat gender violence in the country.3 It further noted, however, that Amnesty International reports4 that responsibility to provide government services regarding gender violence had been decentralized and there was no regulation at the state level to require minimum standards for such services. This document further notes that since 2011 there has been a reduction in funding for women's shelters in response to the economic crisis. Also noted is the death of a woman in 2011 who had received a no-contact order against her former spouse in 2010 but her request to use the helpline was denied because authorities considered the risk to be low. Amnesty International also noted the killing of a young woman by her father. Despite repeated requests for protection, the courts authorized unsupervised visits between the young woman and her father. This document notes as well that among the 73 women killed in Spain by a spouse or former spouse in 2010, 17 had allegedly sought protection and 14 had obtained protection. [25] The panel noted that there is evidence the authorities in Spain are making serious efforts to protect women. The panel found however that Spanish authorities had not been successful in providing adequate protection to women facing gender abuse at the operational level. [26] The panel noted evidence of the operation of this Latin American gang in Spain. The panel further noted Spanish authorities have arrested and deported gang members.5 [27] Minister's counsel in the RPD hearing argued that Spanish authorities have taken action against gangs and that it was unreasonable for the Respondents not to have approached Spanish authorities for protection. Minister's counsel further argued that there were isolated reports of corruption at the end of 2013 but these were handled promptly. In response, counsel for the Respondents noted there were higher levels of corruption in Spain than in other European countries.6 Counsel also noted that XXXX profile as a member of the XXXX XXXX as well as his wealth enabled him to influence the authorities in Spain through bribery. [28] The panel acknowledged that Spanish authorities had taken action against corrupt government officials and police in a number of cases. The panel noted, however, that corruption remains a significant issue and in light of XXXX profile as a wealthy gang member, the panel found the Respondents could be more at risk from him than would be the case if he did not have the ability to bribe officials. The panel found that the Spanish State is unable to provide adequate protection for the Respondents. The Appellant's Memorandum State protection in Spain [29] The Appellant notes that the panel stated the Respondents had provided credible and trustworthy evidence concerning attacks and harassment by XXXX in both Peru and Spain. The Appellant further notes that corroborative evidence in the form of medical and police reports were only provided for Peru and no such evidence was adduced for Spain. The Appellant noted as well that despite XXXX statement in her Basis of Claim form (BOC) that she sought state protection in Spain, she subsequently testified that she in fact never sought state protection in Spain. The Appellant submits that the Respondents did not provide the RPD with credible and trustworthy evidence concerning attacks and harassment in Spain, and the panel made an error in fact. [30] The Appellant notes that the panel stated in its Reasons that "XXXX also provided reliable evidence of XXXX influence with Peruvian police through his family members..."7 The Appellant notes however that aside from their testimony, the Respondents did not provide any evidence that XXXX had any influence with the Peruvian police, The Appellant submits that the Respondents did not provide to the RPD with credible and trustworthy evidence of XXXX influence with the police in Peru. [31] In regard to state protection in Spain, the Appellant notes the panel cited one sentence from the U.S. State Department Report (DOS)8 on Human Rights in Spain indicating that government corruption and abuse of women and children were the most significant problems in 2014. The Appellant further notes the panel did not refer to the rest of the report where there is a description of the laws passed by Spanish authorities and their efforts to combat gender violence, and also the fact that the authorities generally enforced the law effectively and achieved results at the local level. The Appellant notes as well that this evidence was noted in its submissions in the RPD hearing and the panel gave no weight to this evidence. The panel did not explain why it preferred the Respondents' evidence rather than the DOS report. [32] The Appellant notes, in regard to an Amnesty International Report,9 the panel cited a 2003 case where authorities in Spain were unable to protect a child. The Appellant further notes the panel cited statistics on the rise of cases closed by Spanish authorities because of lack of evidence. The Appellant notes as well that the panel acknowledges serious efforts made by the authorities to protect women, but the panel stated that mere willingness to provide protection is insufficient and state protection should be effective. The Appellant notes that the panel found on the basis of its review of the documentary evidence that Spanish authorities had been unsuccessful in providing adequate protection to women facing gender violence. [33] The Appellant submits that the panel did not adequately address why it preferred the evidence showing specific cases of failure by Spanish authorities rather than the efforts and results in combating gender violence. The Appellant submits the mere fact the state's efforts are not always successful will not rebut the presumption of state protection. The Appellant notes the panel does not explain how it concluded that state protection in Spain is inadequate and how the panel weighed the evidence. [34] The Appellant notes the Respondents gave inconsistent evidence as to whether they sought protection in Spain. The Appellant further notes that despite the fact that none of the Respondents sought protection from Spanish authorities, the panel found they had rebutted the presumption that state protection was available to them in Spain. The Appellant submits a claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. The Appellant further submits that doubting the effectiveness of state protection when one has not really tested it does not rebut the existence of a presumption of state protection. The Appellant cites in this regard the decision of the Federal Court in Hetyei,10 in which the Court stated that in order to establish that state protection was unavailable, the applicant needed to provide clear and convincing evidence as to an inability to protect. "His subjective reluctance to seek assistance did not establish that protection would be unavailable." [35] The Appellant submits that there was no clear and convincing evidence presented by the Respondents and the RPD erred in fact when it found they had. The Appellant submits that the documentary evidence in the NDP, when reviewed as a whole shows that Spain provides adequate protection at the operational level. [36] The Minister notes the panel stated that XXXX membership in the XXXX XXXX put the Respondents at risk. The Appellant further notes there is no evidence of his membership except the testimony of the Respondents. The Appellant also notes that XXXX testimony was vague with respect to XXXX tattoos and clothing as a reflection of his gang membership and she was not able to provide a positive description of either when questioned in the RPD hearing. [37] The Appellant notes that the panel indicated the Respondents were at a greater risk in Spain because of XXXX profile as a wealthy gang member. The Appellant submits the panel did not provide any supporting evidence other than the Respondents' testimony, as to how it determined that XXXX was a wealthy gang member. [38] The Minister submits that the country documentary evidence noted above shows that state protection is adequate in Spain. The Respondents Memorandum of Argument Credibility [39] The Respondents argue that the panel did not err in its assessment of their credibility or in its state protection findings. The Respondents submit that in view of their particular circumstances, adequate state protection is not available to them in Spain. [40] The Respondents further submit that there is a presumption that an applicant's sworn testimony is true and cite Federal Court case law in this regard.11 The Respondents submit as well that the Appellant confuses the existence of credible and trustworthy evidence with the existence of written corroborative evidence and notes that credible and trustworthy evidence includes oral evidence. [41] The Respondents submit the panel made no negative credibility findings concerning their testimony and provided detailed reasons as to why the Respondents were credible witnesses. The Respondents further submit the panel was in the best position to assess the credibility of their oral testimony and it found the Respondents' testimony was credible. [42] The Respondents submit that they were not under any obligation to provide corroborative documentation in order for their evidence to be found to be credible. The Respondents further submit it is trite law that unless there are inherent contradictions in a claimant's evidence, the claimant's contradicted evidence must be considered credible and does not require corroboration. The Respondents cite Federal Court jurisprudence in this regard.12 State protection [43] The Respondents submit the panel did not err in its state protection analysis and its findings in this regard are reasonably sustainable on the basis of the evidentiary record before it. The Respondents further submit the panel made clear how it reached its conclusion and applicable law supports the outcome. [44] The Respondents note the panel considered the issue of corruption within the context of XXXX profile as a wealthy gang member and found this put them at greater risk. The Respondents submit the panel reasonably concluded that given their particular circumstances, state protection is not available to them in Spain. The Respondents cite Federal Court jurisprudence that states that an applicant is not required to put themselves in danger in order to exhaust all possible avenues of protection.13 The Respondents submit in this regard that their reluctance to engage state protection in Spain is not based on a mere subjective reluctance but on the objective reality of country conditions in Spain. [45] The Respondents note the panel considered the evidence in regard to the availability of state protection in Spain and found that adequate protection was not available to women facing gender abuse. The Respondents argue the panel's conclusion was reasonably open to it. [46] The Respondents submit the panel did not ignore evidence in this regard and acknowledged that Spain is a democratic country and that it was making efforts to provide protection to women who are victims of abuse. The Respondents further submit that the evidence indicates the adequacy of protection available to women has been reduced in recent years.14 The Respondents submit as well the panel is not required to specifically mention every item in its analysis. [47] The Respondents submit the country documentary evidence came from reliable sources and the panel was entitled to determine how much weight to give to it. The Respondents show that adequate protection is often not available to female victims of domestic violence in Spain. [48] The Respondents note that the U.S. DOS Report15 states that corruption in government and violence against women are the most significant human rights problems in Spain. The Respondents further note that an Amnesty International Report 16 states that 45 women were killed by their partners or former partners during the year and there has been a decline in the rate of prosecutions of reported incidents of gender violence since 2005. The Respondents note as well a Response to Information Request (RIR)17 which indicates that services to abused women in Spain have been decentralized and there is no requirement at the state level to force local communities to meet minimal requirements for the availability of such services. [49] The Respondents submit the panel noted the identity of the agent of persecution as a wealthy gang member with the ability to bribe Spanish officials. The Respondents further submit that a country case study18 provides evidence of the links between organized crime and corruption and that there are higher levels of corruption in Spain than other European countries. The Respondents argue that this report confirms that XXXX identity as a wealthy gang member would allow him to influence their ability to access adequate state protection in Spain. The RAD's analysis and decision [50] The RAD has reviewed all of the evidence in the record including the CD recording of the hearing. The RAD has reviewed in particular the country documentary evidence cited by the Respondents and the Appellant concerning the availability of state protection in Spain. [51] The RAD notes that Spain is a parliamentary democracy in which the government is elected in free and fair elections and the authorities maintain effective control of the security forces. The RAD further notes that the U.S. DOS 2014 Human Rights report for Spain19 indicates that corruption in government and violence against women and children are among the most significant human rights problems. [52] The RAD notes as well that this document indicates that the Spanish government took steps to prosecute officials in the security services and elsewhere in government who had committed abuses. [53] In regard to the police, this document indicates that the government had generally effective control and generally effective mechanisms to investigate and punish abuse and corruption. This evidence further indicates that police forces have put in place policies to increase accountability although it is also indicated that judges frequently dismiss allegations of misconduct by the police. [54] This evidence indicates that the law provides criminal penalties for official corruption and the government generally implemented the law effectively, although prosecutions and convictions are rare. It is further noted that various state bodies concerned with this matter collaborate effectively with civil society, operate effectively and independently and receive sufficient resources. [55] The RAD notes this document cites some examples of corruption in government which demonstrate that the problem remains but also that offenders are being caught. [56] This document notes that a range of domestic and international human rights groups generally operate without government restrictions and publish their findings on human rights cases. In addition there is an Ombudsman charged with protecting and defending basic human rights on behalf of citizens. There are also Ombudsman offices for autonomous communities at the regional level. The evidence indicates that the Ombudsman office is independent, has sufficient resources and the public trust as well. [57] This document indicates that the law criminalizes rape, including spousal rape, and the government generally enforces the law effectively. The document provides statistics indicating that 31 women have been killed by spouses or former spouses. It is further noted that 76 of 86 accusations of abuse resulted in guilty verdicts. [58] It is also noted that there are more than 50 offices across Spain that provide legal assistance to victims of domestic violence and more than 454 shelters for battered women. As well there is a 24 hour national hotline. It is clear however that sexual harassment remains a problem in the country. [59] This document cites a 2003 incident in which a child was killed by her mother's former partner. The UN Committee on the Elimination of Discrimination Against Women (CEDAW) condemned the Spanish government in this regard for not providing protection, prosecution or compensation to the child's mother. [60] The RAD has also reviewed an Amnesty International Report20 cited by both the Appellant and the Respondents. This document notes that 45 women have been killed by partners or former partners during the year. It notes as well a sharp decline in the rate of prosecutions of reported incidents of gender-based violence since 2005. It is also noted that numerous cases have been closed for lack of evidence and the Comprehensive Protection Measures Against Gender-Based Violence (Comprehensive Law) needs to be reviewed. [61] An RIR21 cited by the Respondents indicates that the Comprehensive Law needs to be fully implemented. This document further cited a 2009 report noting an unprecedented outlay of measures and actions and the mobilization of major resources to deal with gender violence. Specific support institutions were set up along with special courts and public prosecution offices, as well specialized security services and resources allocated to help women escape from violent situations. The document indicates that "women are more protected, have more information and resources available to them to leave violent situations and have the necessary social and economic rights to allow them to look after their own futures." The document further states that the law has come down hard on perpetrators and notes over 53,000 men have received prison sentences for gender-based violence. [62] This evidence also indicates that women victims of domestic violence who leave a shelter are eligible for funding with an initial payment and up to 12 monthly payments to support access to housing. A representative of the Spanish Red Cross stated that the programs offered by the national government and municipalities are effective. [63] This evidence indicates there has been a police unit for prevention, assistance and protection of Battered Women (UPAP) since 2003 in all units of the national force, including police headquarters and provincial, local and neighbourhood offices. Restraining orders are issued within 72 hours and there is a monitoring system for restraining orders. [64] This document cites a 2011 case in which a woman who had filed a complaint and had obtained a no-contact order was allegedly killed by her former spouse. It is noted that her request to use the helpline was allegedly rejected by the authorities who considered the risk of assault to be low. This document also indicates that 73 women were killed by spouses or former spouses in 2010, 17 had allegedly sought protective measures and 14 had obtained them. This document notes as well that in 2011, 80 percent of domestic violence cases resulted in a conviction. It also notes that 72 percent of cases in 2009 resulted in conviction. [65] The RAD finds that these documents make clear that corruption and abuse against women and children remain serious problems in Spain. The RAD further finds they also make clear that Spanish authorities are addressing the problems with laws, institutions dedicated to dealing with these particular problems and actions that have led to trials and imprisonment for perpetrators. The RAD further finds that while the evidence is mixed as to the effectiveness of the Spanish government's efforts to deal with these problems, it is not persuaded that state protection in Spain would not have been available to the Respondents if they had made any effort to access it. The RAD notes that the evidence indicates there are specialized institutions dealing with gender-based abuse throughout the country, and the Respondents were living in Barcelona, a major urban centre where such services were most likely to be available. [66] The RAD cites the Supreme Court's decision in Ward in which the Court held that states are presumed to be capable of protecting their citizens and to rebut this presumption, a claimant must provide "clear and convincing" evidence of the state's inability to protect a citizen.22 [67] The RAD further cites the Federal Court decision in Kadenko in which the Court held that the burden of proof is directly proportional to the level of democracy in the country and that the more democratic the state's institutions, the more the claimant must have done to exhaust all courses of action open to them.23 The RAD cites as well the decision of the Federal Court of Appeal in Hinzman and also in Satiacum in which the Court held that a claimant from a democratic country will have a heavy burden when attempting to show that they should not have been required to exhaust all of the resources available to them domestically before claiming refugee protection.24 [68] The RAD notes that XXXX testified she did not approach the police in Spain because she was afraid XXXX might hurt her daughter. She further testified she did not go to the police because it would have been useless and she saw information confirming this on television and on the internet. She further indicated that XXXX had the power, money and contacts to find her anywhere in Spain. [69] The RAD is not persuaded by this explanation. While Spanish authorities are clearly not always successful in preventing gender-based abuse and killings, there is also evidence that they are often successful and that an array of institutions were and are available to the Respondents, especially in Barcelona, to obtain protection. The Federal Court has held that a claimant is not required to risk their life seeking ineffective state protection.25 The RAD finds however that effective state protection was available to her. XXXX testified that XXXX abused and threatened her in Spain, and the RAD finds that the risk of further abuse for her and her family was far greater if she did not seek state protection. The RAD cites the Federal Court decision in Villafranca26 in which the Court stated that no state can guarantee perfect protection and the mere fact that a state is not always successful will not rebut the presumption of state protection. [70] The RAD notes that both the Respondents and the RPD panel have noted the special circumstances in this case, regarding XXXX membership in the XXXX XXXX, a criminal gang from Latin America also active in Spain, and his wealth. The RAD notes that the panel stated that "because of his wealth, XXXX has the ability to bribe corrupt officials in the country and that the Respondents will not be safe from XXXX or his gang members in any part of Spain."27 [71] The RAD agrees with the Appellant that no corroborating evidence has been provided by the Respondents to support the allegation that XXXX comes from a wealthy family and is in fact a member of the XXXX XXXX. The RAD notes that XXXX testified that she could not obtain effective protection in Peru because XXXX had an uncle who was in the police force. There appeared to be no reason to bribe the police when XXXX family was in the police. [72] The RAD notes that the XXXX XXXX are now represented in Spain but it further notes that Spanish authorities have gone after the gang and arrests have been made. The RAD finds it is quite a leap to assume that XXXX alleged family wealth and contacts in the police in Peru would allow him to bribe police in Spain, merely because there is evidence of some corruption among police officials in Spain. The RAD finds that this assertion strains credulity and is speculation and that there is an insufficient evidentiary basis for the panel's finding in this regard. [73] The RAD acknowledges that the Respondents' sworn testimony is presumed to be true and that corroborating evidence is not generally required if the Respondents' testimony was found to be credible. The RAD finds however in the context of the significance given to XXXX alleged profile as a wealthy gang member by both the Respondents and the panel, some corroborating evidence could be expected. [74] The RAD cites in this regard the decision of the Federal Court of Appeal in Adu28 in which the Court held "the presumption that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention." In Owusu,29 the Federal Court stated that the Board did not err "by requiring that the applicant's testimony be corroborated by documentary evidence." In Joseph,30 the Federal Court stated that in key areas where one would have expected corroborative documentary evidence, none was offered, and the RPD was entitled to make an adverse credibility finding in those circumstances. The RAD cites as well the Federal Court's decision in Ortiz31 in which the Court stated the RPD had not erred in drawing an adverse conclusion from the absence of corroborative evidence. [75] The RAD concludes, on the basis of its assessment of the totality of the evidence in the record, that adequate state protection was available to the Respondents in Spain, that it remains available, and that they made insufficient efforts to access it. In addition, the RAD finds that the panel's finding that the agent of persecution's alleged power as a wealthy gang member made it unlikely that the Respondents could successfully access state protection in Spain is speculative and without a sufficient evidentiary foundation. [76] The RAD has reviewed and considered XXXX psychological report provided in the RPD hearing.32 The RAD accepts that XXXX experience has affected her emotionally and that her fear of returning to Spain has resulted in further distress. The RAD finds however that if she requires further psychological counselling she will be able to access it in Spain. The RAD notes that XXXX has indicated she consulted a physician in this regard in Spain. Disposition [77] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its decision that the Respondents are neither Convention refugees nor persons in need of protection. The appeal is allowed. (signed) "Milton Israel" Milton Israel January 20, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 2 Exhibit RPD-1, RPD's Record, exhibit 5, National Documentation Package (NDP) for Spain (June 30, 2015), item 2.1. 3 Ibid. 4 Ibid., item 2.2. 5 Exhibit RPD-1, RPD's Record, exhibits 13 and 14. 6 Ibid., exhibit 5, NDP for Spain (June 30, 2015), item 7.5. 7 Exhibit M-2, Appellant's Record, Memorandum, p. 14. 8 Exhibit RPD-1, RPD's Record, exhibit 5, NDP for Spain (June 30, 2015), item 2.1. 9 Exhibit RPD-1, RPD's Record, exhibit 5, NDP for Spain (June 30, 2015), item 2.2. 10 Hetyei, Tibor v. M.C.I. (F.C., no. IMM-8622-12), Mosley, December 3, 2013, 2013 FC 1208, at paras. 17 and 18. 11 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19,. 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.), at paras. 4-5. 12 Attakora, Benjamin v. M.E.I. (F.C.A., no. A-1091-87), Heald, Mahoney, Hugessen, May 19, 1989. Reported: Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.). 13 Sandoval, Dora Luz Cuevas v. M.C.I. (F.C., no. IMM-5394-07), Zinn, July 14, 2008, 2008 FC 868. 14 Exhibit RPD-1, RPD's Record, exhibit 5, NDP for Spain (June 30, 2015), items 2.1 and 2.2. 15 Ibid., item 2.1. 16 Ibid., item 2.2. 17 Ibid., item 5.8. 18 Ibid., item 7.5, Centre for the Study of Democracy Report at pp. 185, 191, 192 19 Exhibit RPD-1, RPD's Record, exhibit 5, NDP for Spain (June 30, 2015), item 2.1. 20 Exhibit RPD-1, RPD's Record, exhibit 5, NDP for Spain (June 30, 2015), item 2.2. 21 Exhibit RPD-1, RPD's Record, exhibit 5, NDP for Spain (June 30, 2015), item 5.1. 22 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 23 Kadenko: M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). 24 Hinzman, Jeremy v. M.C.I. (F.C., no. IMM-2168-05), Mactavish, March 31, 2006, 2006 FC 420; Reported: Hinzman v. Canada (Minister of Citizenship and Immigration) [2007], 1 F.C.R. 561 (F.C.); Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 17; 2007 FCA 171; Satiacum: M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.). 25 Ward, supra, footnote 22. 26 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.). 27 Exhibit RPD-1, RPD's Record, Reasons, p. 11. 28 Adu, Peter v. M.E.I. (F.C.A., no. A-194-92), Hugessen, Strayer, Robertson, January 24, 1995. 29 Owusu v. MCI, [1995] F.C.J. No. 681 (T.D.) (QL). 30 Joseph, Rasamalar v. M.C.I. (F.C., no. IMM-5389-10), O'Reilly, May 16, 2011, 2011 FC 548. 31 Juarez, Jose de Jesus Ortiz v. M.C.I. (F.C., no. IMM-2410-05), Phelan, March 6, 2006, 2006 FC 288. 32 Exhibit RPD-1, RPD's Record, pp. 294-297. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10897 TB5-10898 TB5-10899