VB8-04109

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 / Dossier de la SAR : VB8-04109 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision December 13, 2018 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the person(s) who is(are) the subject of the appeal Amanda Aziz Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Randal Hyland Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Refugee Protection Division (RPD) found that XXXX XXXX XXXX XXXX (Respondent) is a Convention Refugee. The Minister of Public Safety and Emergency Preparedness and Minister of Immigration, Refugees and Citizenship (Appellant) is appealing against that decision. DETERMINATION [2] The Minister's appeal is dismissed. OVERVIEW [3] XXXX XXXX XXXX was a XXXX XXXX practicing XXXX in Libya. After the revolution erupted in 2011, XXXX XXXX XXXX purchased an ambulance and volunteered time and service to treat and transport the wounded. He estimated making over 100 ambulance trips between Libya and Tunisia, arranged through an informal network of volunteers. His family and international charity organizations supported this humanitarian work. XXXX XXXX XXXX had no attachments to the politics of Libya's revolution. Colleagues described him as "very smart, active, and passionate to his patients"1 and as a man known for his dedication and good character whose love of volunteer work saved many lives during the war.2 [4] Dr. XXXX came to Canada in XXXX 2014, with a student visa to study English. While in Canada, he learned from colleagues that nephew had been kidnapped and forced to disclose the location of XXXX XXXX XXXX family members, who were being targeted by military people looking for XXXX XXXX XXXX. They sought him because one of the people he treated and transported in his ambulance was apparently a high ranking officer in Gaddafi's army. Dr. XXXX father and brother have since been kidnapped and their whereabouts are unknown. Remaining family members in Libya are living with friends or acquaintances for fear of staying in their home. Upon learning of these developments through colleagues, XXXX XXXX XXXX filed for refugee protection in Canada in September 2015. [5] The Minister responded to the refugee claim with an allegation that XXXX XXXX XXXX was inadmissible to Canada because his volunteer medical work treating and transporting casualties of war equated to being a member of an organization that has engaged, or will engage, in subversion by force of the Libyan government. This Section 37 exclusion argument was rejected by the Immigration Division (ID) member, who not only disagreed, but expressed surprise that such a case was being brought forward. The Minister was undeterred and appealed to the IAD, which proved equally unreceptive to the Minister's characterization of events. After providing an articulate account of the complex military situation in Libya and XXXX XXXX XXXX activities within that milieu, the IAD member described XXXX XXXX XXXX situation as "a plotline Kafka would have trouble matching: a man is deemed inadmissible to Canada for having fought in the same cause as the Canadian Armed Forces and our NATO allies, a cause that Parliament considered righteous".3 The IAD examined the case fully and dismissed the appeal on XXXX XXXX XXXX XXXX. [6] The refugee claim then proceeded with a referral to the RPD but time was taking its toll on XXXX XXXX XXXX. He was languishing in Canada, unable to practice XXXX, worrying about his missing father and brother with no idea where they are and fearing they are dead, concerned for his remaining family, absorbed in guilt and struggling with the effects of XXXX. XXXX XXXX XXXX found help in a refugee mental health organization, including from a counsellor there who reported that the emotional distress and other severe symptoms of XXXX were worsening as the refugee process dragged on.4 [7] The refugee claim that had started in 2015 proceeded to a hearing at the RPD in July 2018, where the Minister again intervened. This time the Minister argued that XXXX XXXX XXXX was excluded by Article 1F(c) for an assault he committed in XXXX 2014 that generated criminal charges and a conviction in Canada. [8] The RPD member rejected the Article 1F(c) exclusion argument,5 evaluated the merits of Dr. XXXX refugee claim, and concluded that Dr. XXXX is a Convention refugee.6 [9] The Minister is appealing the RPD decision on these three grounds: a. the RPD erred in its interpretation and application of Article 1F(c); b. the RPD erred in determining that the respondent does not have an internal flight alternative (IFA) in Libya, and c. the RPD erred in reversing the onus on state protection. ANALYSIS Article 1F(c) [10] The purpose of Article 1F(c)7 was described by the Supreme Court of Canada (SCC) in the Pushpanathan case8 as being "to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting".9 The standard of proof for applying Article 1 is "serious reasons for considering", which requires more than conjecture or speculation but is less than a balance of probabilities. [11] The reason for the Minister's allegation is that XXXX XXXX XXXX was found guilty in criminal court for committing an assault in Canada. In the early morning hours of XXXX 2014, XXXX XXXX XXXX approached a sex trade worker and they agreed on a price for an act of sexual intercourse. XXXX XXXX XXXX paid in advance, except for $20. They engaged in intercourse in an alleyway. The worker then requested the $20 and XXXX XXXX XXXX refused, claiming he had already paid in full. They argued, attracting attention from a passerby, who also remonstrated with XXXX XXXX XXXX to pay. XXXX XXXX XXXX became angrier, threatened to kill the worker, and then punched her in the face three times. He was apprehended by police, detained for a few hours, and then released on bail. [12] This single event is the only basis for the Minister's argument that Article 1F(c) applies to XXXX XXXX XXXX. The Minister alleges that the nature of the harm committed by XXXX XXXX XXXX is contrary to the purposes and principles of the United Nations as anticipated by Article 1F(c) because it was a serious, sustained or systemic violation of fundamental human rights. The RPD member found that it was an act of assault that did not fall within Article 1F(c). I agree with the RPD member that Article 1F(c) does not prevent XXXX XXXX XXXX from accessing refugee protection. [13] The criminal court sentencing remarks provide the findings of fact about the incident and about XXXX XXXX XXXX circumstances.10 XXXX XXXX XXXX was apprehended by police at the scene and made disparaging remarks about homeless people like the victim. He re-iterated that his assault was triggered by the victim and the passerby robbing him. For sentencing, the judge took into consideration that the victim suffered minor physical injuries, isolation from her friends and support systems from fear of living in her neighbourhood and that the event triggered an increase in her use of illegal drugs. Aggravating factors included that the assault occurred while the victim 'plied her trade' as a sex trade worker and because of the insulting remarks about the victim's status as a homeless person. Mitigating factors were that XXXX XXXX XXXX eventually pled guilty, expressed remorse for his conduct, and has no criminal record in Canada or in his home country of Libya. Letters of reference from friends and professional colleagues in Canada and in Libya confirmed his good character. [14] The judge concluded that the offence was entirely out of character for XXXX XXXX XXXX, but also that, despite the mitigating factors, a jail sentence would normally have been fitting. However, and most importantly, the judge accepted that XXXX XXXX XXXX was very intoxicated that night, had never used alcohol except once before, and thus did not understand the nature of the effects of alcohol and how it could affect his judgment and conduct. In his intoxicated state, XXXX XXXX XXXX genuinely believed that the victim and passerby had stolen money from him and he lashed out at the victim in this context. Given these circumstances, his otherwise exemplary life, his good conduct on terms of bail for the past XXXX months, and that his rehabilitation deserved priority over the need to deter and denounce his behavior, imprisonment was not necessary. The judge found it reasonable to consider a rehabilitative measure, either through a suspended sentence or a discharge, and took into account that a discharge would be in XXXX XXXX XXXX best interests because a conviction could have the disproportionate impact of leading to deportation from Canada and having his refugee claim denied. The final judgment was a conditional discharge and XXXX XXXX XXXX successfully completed his probationary period without incident and he was fully discharged in XXXX 2015. [15] The heart of the disagreement between the RPD member's decision on Article 1F(c) and the Minister's submission is a difference of opinion about how to characterize XXXX XXXX XXXX conduct on that day in XXXX 2014. The RPD member focused on the fact that XXXX XXXX XXXX physically assaulted someone because of his belief that the victim had robbed him, while the Minister focused on the victim's gender and has conflated that to be indicative of a serious, sustained or systemic violation of fundamental human rights in a non-war setting. [16] It is fair to say that XXXX XXXX XXXX exhibited great disrespect for his victim: he expressed that verbally to the police in identifying her as homeless, and there may have been disrespect for the victim because of her occupation as a street worker and because of her gender as well. Even accepting that all of those levels of disrespect may have been present in the mind of XXXX XXXX XXXX to some degree, the circumstances are worthy of criminal sanction against XXXX XXXX XXXX but do not provide a basis to conclude that his actions constitute 'a serious, sustained or systemic violation of human rights amounting to persecution in a non-war setting'. [17] In the Minister's written submissions to the Refugee Appeal Division (RAD), counsel refers to articles and documents relating to gender violence with many references to violence against women in an effort to show how the RPD member misunderstood arguments made to the RPD about gender-based violence. That is either a true misunderstanding of the RPD member's decision, or disingenuousness on the part of the Minister's counsel. In any event, it fails to appreciate the essence and totality of the RPD's analysis and offers selective, individual points out of context. [18] The Minister argued, for example, that in finding that XXXX XXXX XXXX actions were not 'extraordinary actions which shock the international conscience' the RPD member set too high a threshold for exclusion. That argument takes the RPD member's evaluation of relevant case law out of context. The RPD member understood that violence against women is a gender crime that the international community has taken decisive steps to eliminate and confirmed that women suffering violence in various circumstances are protected by international treaties and legislation, including through the appropriate interpretation of Article 1F. The Minister's argument fails to acknowledge the RPD member's generous appreciation for applicable and relevant jurisprudence on Article 1 and does not address the central point of departure, which is the RPD member's characterization of the event as an assault rather than gender-based violence. This correct characterization of the event underlies the RPD member's assessment of the law to the facts. Her conclusion was, correctly, that international law does not hold that assaulting a person, while drunk or otherwise, is to be considered contrary to the purposes and principles of the UN. The Minister has not refuted that conclusion. [19] The RPD member completed her analysis by properly considering the logic of exclusion as described in Pushpanathan, appreciating that persons responsible for the persecution that creates refugees should not enjoy the benefits of a Convention designed to protect those refugees.11 The RPD member contemplated whether XXXX XXXX XXXX 'drunken action of punching a prostitute in the nose and chasing said woman when he mistakenly believed she had stolen his money', if committed against a prostitute from a third country, would 'enable said prostitute to obtain refugee protection in Canada' and decided it would not.12 The member again confirmed her characterization of the event as an assault and not an episode of gender-based violence before concluding that there would be a finding that such a theoretical victim would not have a well-founded fear or a risk of harm per sections 96 and 97 of IRPA. [20] The Minister's counsel offered two RPD decisions in support of his position that the RPD Member's understanding of Article 1F(c) was too narrow and not sufficiently contextual: TB4-0697213 and VB5-02921. The facts in each case are easily distinguishable but I will briefly address relevant points. [21] The case TB4-06972 involved a person whose identity and credibility were sorely lacking. He was found to be smuggling two young girls, aged 10 and 8, across the land border between the USA and Canada. Not only was he excluded based on Article 1F(b) and (c), his claim was found to have no credible basis and to be manifestly unfounded. The decision was based on a number of grounds and is relatively limited in its analysis of Article 1F. This case provides no assistance to the current appeal. [22] The case VB5-02921 involved domestic violence where the person seriously harmed and consistently abused two victims over a period of two years. This was an unpublished decision and the Respondent argued that "the use of unpublished decisions not available to the claimant is . . . highly inappropriate given the lack of access the claimant has to other decisions made by the RPD on the issue of exclusion per Article 1F(c)." The Respondent pointed out that the Minister has not disclosed all of the other decisions the RPD has made with regard to exclusion under Article 1F(c), including where the RPD has not excluded a claimant, and argued that procedural fairness requires the disclosure of any and all other Article 1F(c) decisions the Minister has access to.14 This potentially meritorious argument is not central to the outcome in this appeal and therefore I have not addressed the Respondent's implicit request for disclosure of other decisions. However, I am of the view that the case VB5-02921 provides a comprehensive and articulate contextual understanding of Article 1F, an overview that is consistent with the conclusions reached by the RPD member and by me in assessing the law for this appeal. [23] For all these reasons, the Minister's arguments concerning Article 1F(c) fail. I confirm the decision of the RPD that Article 1F(c) does not apply to exclude Mr. XXXX from refugee protection. Internal Flight Alternative (IFA) and State Protection [24] The test for assessing an IFA is two-pronged and was set out in the Federal Court of Appeal decision in Rasaratnam as follows.15 The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for him to seek refuge there. [25] Both parts of the test must be satisfied to find that there is an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with a claimant to show that, given his personal circumstances, the IFA is not a realistic and attainable option. The first prong of the Rasaratnam test is necessarily fact-specific. As a general principle, Canadian courts have held that large urban areas cannot be assumed to be an IFA by virtue of their population size alone nor does the distance between a proposed IFA and the location of the persecutors serve to establish that the proposed IFA is viable. The IFA must truly be an area in which the claimant can seek refuge from the persecution experienced in his home district. Each appeal is dependent on a claimant's arguments, the individual facts and the assessment of a claimant's personal risk. A claimant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there. The question of whether a claimant has shown, on a balance of probabilities, that they face a serious possibility of persecution in the proposed IFA will turn on their evidence, keeping in mind these general principles. [26] I find that the RPD member understood the elements of the law related to assessment of IFA and correctly concluded that there is a serious possibility of persecution and that it was objectively unreasonable for XXXX XXXX XXXX to live in XXXX. The RPD member was cognizant of conditions in Libya, where chaos and political confusion continue. The RPD considered the country evidence, including the changing circumstances of militia groups and ongoing evidence of serious violations of international law and abuses of human rights with impunity.16 The Appellant argued that the RPD ignored or overlooked relevant case law and highly relevant evidence and pointed out that the burden of proof is on the Appellant. Those arguments have not been made out in this appeal. [27] The RPD member took into consideration XXXX XXXX XXXX personal circumstances including emotional and psychological fragility, that he is suffering extreme depression and trauma, that he fears being harmed by persons in Libya who continue to seek his death, has extreme guilt for what his family members are experiencing in Libya, and is unable to function professionally because of his psychological state. His past as a perceived political activist in Libya traveling with an ambulance throughout war zones, a perceived political profile, and perceived wealth, are additional factors that the RPD member found would contribute to making it objectively unreasonable for him to live elsewhere in Libya. The member concluded that there are no stable or durable areas, that Libya is a war zone and in a humanitarian crisis, and that therefore it is objectively unreasonable for XXXX XXXX XXXX to return to XXXX. The cases cited by the Appellant illustrate the same principles relied on by the RPD member in this case and are factually distinguishable, as always. The RPD member reached a conclusion about XXXX that is supported by the country condition evidence. Points of departure and difference can always be found in the extensive country condition information and those highlighted by the Appellant to suggest a contrary view do not amount to errors by the RPD in its contextual overview. [28] The Minister's counsel has not established that the RPD member was incorrect in deciding that XXXX XXXX XXXX did not have a reasonable IFA in XXXX. The Minister's counsel argued that the RPD overlooked country condition information in assessing the IFA but the Respondent's counsel correctly pointed out that the arguments fail to address the specifics of XXXX XXXX XXXX situation. XXXX XXXX XXXX is vulnerable because of his fragile mental state: this was not addressed by the Minister. His family members in Libya have continued to face persecution because of the perceived association with the Gaddafi regime: this was not addressed. XXXX XXXX XXXX brother and father were kidnapped and are presumed killed and he is being sought: this was not refuted. A nephew was also kidnapped and tortured. The Minister's arguments do not address those specific circumstances but refer to general references and theories about the situation in Libya and XXXX. The arguments do not, therefore, provide a basis to overturn the findings of the RPD. [29] Regarding state protection, the Respondent argues, and I agree, that the RPD concluded, by implication if not expressly, that state protection in Libya was generally debatable and absent for XXXX XXXX XXXX specifically. The Minister argued that the RPD member erred by reversing the onus on state protection when she stated that the Minister did not raise the issue of state protection and then uses the word 'thus' to make findings. In a relatively complex decision that was being rendered orally, the member may have used the word 'thus' imprecisely but the Minister has taken that reference out of context and without consideration for the totality of the RPD member's reasoning. The RPD member examined the country conditions information and made conclusions about IFA and state protection that took into consideration the relevant documentary evidence.17 The member took care to consider and outline the political and military landscape, dysfunction of the criminal justice system, reduced or non-existing civil and military court processes, high levels of violence and the instability and lack of durability that threatens apparently calm regions such as XXXX. The agent of harm in this case has a personally specific profile and political connection such that the state is likely to be unable or disinclined to provide protection. The RPD member thus gave effect to and correctly applied the legal tests for IFA and state protection. CONCLUSION [30] The RAD dismisses the appeal and confirms the decision of the RPD that the appellant is a Convention refugee. (signed) "Maryanne Kingma" Maryanne Kingma December 13, 2018 Date 1 RPD Record (RPDR), p. 876. 2 RPDR, p. 886. 3 IAD decision XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. 4 RPDR, Volume 1, Letter from the Vancouver Association for Survivors of Torture, p. 901-903. 5 RPDR, April 30, 2018 decision, p. 838-848. 6 RPDR, July 10, 2018 decision, p. 5-12. 7Article 1 of the Refugee Convention provides as follows: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: [...] (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. 8 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982. 9 Pushpanathan, para. [64]. 10 RPD Record, Exhibit 9. 11 RPD April 30, 2018 Decision, para 45. 12 RPD April 30, 2018 Decision, para 46. 13 X (Re), 2015 CanLII 107886 (CA IRB). 14 Respondent's reply, para. 32. 15 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 16 RPDR, Reasons for Decision p.10, lines 26-40, 17 RPDR, Reasons for decision, p. 9, lines 26-28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-04109 RAD.25.02 (September 18, 2018) Disponible en français 13 RAD.25.02 (September 18, 2018) Disponible en français