TB7-16654

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 : TB7-16654 TB7-16655 / TB7-16656 / TB7-16657 TB7-16658 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 19, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Kingsley I. Jesuorobo Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "Principal Appellant" or "PA"), his wife, XXXX XXXX XXXX XXXX, his children XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX and his mother, XXXX XXXX XXXX XXXX XXXX XXXX, are citizens of Brazil and appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of this appeal. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The PA alleged that he is being extorted for monies allegedly owed by the company for which the PA used to work. That company closed when its senior partner died. [3] In July 2015, the PA was approached by a Mr. XXXX XXXX allegedly from a militia group in Rio de Janeiro. The man demanded that the PA enter into some kind of debt concession agreement based on monies allegedly owed by the company for which the PA used to work. By October 2016, the PA decided to flee Brazil for Canada, bringing his family with him. The family submitted a claim for protection in March 2017. The decision was signed on August 2, 2017. RPD's Reasons [4] In its reasons, the RPD found that the claim was not admissible as a section 96 claim as there was no nexus to the Convention. That is not in dispute by the Appellants. [5] The panel also found that there is adequate state protection in Brazil and as a consequence of that available state protection, the claims also fail under section 97. [6] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Appellants' Issues [7] The Appellants raise one issue at the RAD: a. Did the RPD err when it found that the Appellants can obtain state protection in Brazil? ANALYSIS Determinative Issue [8] The determinative issue in this appeal is the availability of adequate state protection in Brazil. Standard of Review [9] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 Admissibility of New Evidence [10] The Appellants submitted new evidence with their Appeal Record. [11] Subsection 110(4) of the IRPA provides that the persons who are the subjects of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the persons could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claim. [12] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza2 as subsequently modified by the same court's decision in Singh;3 effectively, I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [13] The Appellants submit six (6) pieces of new evidence in support of their appeal: 1) "A Witness in Rio is Killed by the Militia" - dated December 16, 2011; 2) "A witness who denounced militia ..." dated July 07, 2011; 3) "Militia man shoots girl ..." dated October 17, 2016; 4) "Militia is said ..." dated January 06, 2016; 5) "Militia plans to kill ..." dated May 8, 2017; and, 6) "Militia kills 6 politicians in Rio" dated August 26, 2016. [14] The Appellants argue that the new evidence contradicts findings of the panel in as much as the panel found that the "militia groups" operate mainly in the slums (Favelas). [15] As the core of this claim is that the PA was being basically extorted by Mr. XXXX, a person allegedly somehow attached to a particular militia group, then it would be incumbent on the PA to adduce sufficient supporting evidence to show that this militia group was a true threat to him. That is what the RPD hearing is for. A RAD appeal is not a forum in which an Appellant has an opportunity to bolster an otherwise weak presentation to the RPD. [16] Subsection 110(4) does not provide an opportunity for Appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.4 In a recent Federal Court decision,5 the Hon. Justice Annis wrote: I agree with the RAD that the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning in [of] deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD. [17] In the case of the "new evidence", all six pieces predate the RPD decision, in most cases, by years. None of these documents meet the test of subsection 110(4) and counsel's reasoning regards my acceptance of said documents is in error for the reason written above. Arguments [18] Counsel argues the panel erred in its assessment of state protection in Brazil. The Appellants argue that they did not attempt to access state protection because they are afraid that the police are corrupt and that the Appellants would be harmed if they went to the police. Counsel argues that it would be naïve to seek police protection under the circumstances. However, an Appellant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. (Judge,6 Kim,7 Camacho8) [19] The problems I have with counsel's argument are that in the first place, even if some police officers are corrupt, on a balance of probabilities, not all police officers are corrupt. In the second place, there has been insufficient evidence adduced to convince me that the person allegedly extorting the PA has any ties to any militia group. Other than the fact that, according to the PA, this man said that he was part of a militia, no real evidence has been adduced to support that allegation. [20] It is not uncommon for petty criminals to use the name of some fearsome gang, group or individual to help to convince a target to do as he or she is told. I am not convinced by the evidence that this extortionist has any ties to any militia group. There simply is no credible evidence to support that allegation. [21] The panel has noted9 that the "agent of harm" has previously been arrested and convicted for murder. The fact that the man has been successfully prosecuted and sentenced is evidence that there is state protection. Counsel argues that such protection is ineffective if the victim is already dead. Counsel argues that even if the perpetrator is convicted after a murder, there is no justice for the victim. [22] There is never sufficient justice for the victim of such a crime; however, justice is not the issue here. The issue is state protection. The onus is on the Appellant to rebut the presumption that (adequate) state protection exists in Brazil. [23] Counsel's arguments regarding militias and the grip they hold on the prison system as well as the streets of the slums of Rio would be valid arguments if the Appellants lived in one of those slums and if MrXXXX XXXX was actually connected to the militia running that slum. The Appellants are well educated middle class people who do not live in the slums of Rio and who have access to police protection in their own neighborhood. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. (Ward10) [24] In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim. (Camacho11) This is so even where the protective services of the state have gaps or deficiencies. (Salazar Santos12) It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system. (Marquez Alvarez,13 Romero Castaneda14) [25] In this particular case, there do exist gaps and deficiencies in the protective services; however, those services do not have to be perfect, but adequate. [26] Above, I have mentioned the earlier arrest, conviction and incarceration of Mr. XXXX XXXX There are many examples available to show that in Brazil there is adequate state protection. As examples, I have considered the following: 1) In Rio State, an operation led to the arrest of 21 military police officers and 11 civil police officers and the resignation of the Rio civil police chief.15 2) The UN Special Rapporteur reports that, in 2009, the Pernambuco government announced that approximately 400 people were imprisoned for their participation in death squads. The government of Paraiba also launched an investigation of a death squad responsible for 300 murders (Latin American Herald Tribune 7 Jan. 2010). In São Paulo, 14 members of a death squad were arrested for their links to 12 murders (UN 28 May 2010, para. 33). [27] Having read the documents and exhibits, I am aware that there is corruption within the police in Brazil, both the military and the civil police. It is also confirmed in those documents that the militias operating in the slums of Rio are made up of disgruntled police, military and firefighters. There have been over 8,000 killings of civilians by police over the last decade. However, a great many of those killings, the majority, have been in armed conflict with gangs and street thugs who are, in most cases, better armed and better equipped than the police. [28] As previously stated, I have insufficient evidence before me to positively identify the agent of harm in this case as a member of any militia. Even if there was sufficient evidence to convince me that XXXX is somehow connected to some militia, there is insufficient evidence adduced to convince me that this militia connection is an actual threat to the Appellants. [29] Counsel refers to a document which was before the RPD, titled, "Brazil's prison massacres are a frightening window into gang warfare", and discusses how such prison gangs affect the streets. I am confused by this reference as it has nothing to do with the case on hand. The PA is not alleging that he is being threatened by or on behalf of some prison gang but by a man who alleged that he (the man) was somehow affiliated with a militia. These reference to prison and street gangs are irrelevant to this case. [30] Counsel reminds me that there are cases of corruption within the Brazilian police departments, citing an article entitled "Brazil Corruption Report" which was before the RPD. The report discusses corruption within the police services but also tells how at least one prominent federal police office, XXXX XXXX, was arrested on corruption charges. This is another example of effective state protection. [31] Counsel's entire argument is based on one fact which has not been substantiated. that is, MrXXXX XXXX affiliation with the Rio militia. With insufficient evidence to support this allegation that XXXX is connected to the Rio militia, I am left to consider that XXXX is nothing more than a local thug attempting to extort the PA. Even if I believed that XXXX was somehow connected to the militia, it does not exempt the Appellants from at least making some effort to seek state protection. Summary [32] The Appellants have failed to rebut the presumption of state protection. Disposition [33] The RAD has found that the RPD decision will stand. CONCLUSION [34] Pursuant to paragraph 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe July 19, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Ibid., Singh, at para. 54. 5 Abdullahi v. Canada (Citizenship and Immigration), (F.C., no. IMM-3447-15), March 3, 2016, 2016 FC 260. 6 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004, 2004 FC 1089. 7 Kim, Eun Mee v. M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005, 2005 FC 1126. 8 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 9 Exhibit RPD-1, RPD's Record, Reasons and Decision, at p. 8, at para. 19. 10 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. 11 Camacho, supra, footnote 8. 12 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 13 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010, 2010 FC 197. 14 Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010, 2010 FC 393. 15 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Brazil, March 31, 2017, at item 7.2 and at item 2.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-16654 TB7-16655 / TB7-16656 / TB7-16657 TB7-16658 RAD.25.02 (July 05, 2018) Disponible en français 10 RAD.25.02 (July 05, 2018) Disponible en français