TB7-20292

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 : TB7-20292 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 8, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal Raoul Boulakia Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "Appellant"), a citizen of Georgia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant alleges that he was extorted by members of the local police and forced to give up his business and the property he owned. The Appellant alleged that he was beaten into submission. Further details are available in the Appellant's Basis of Claim (BOC) and the attached narrative.1 RPD's Reasons [3] In its reasons, the RPD found that the Appellant was not a credible witness, that his evidence was fraudulent and that on a balance of probabilities, his allegations were false. [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (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. Appellant's Issues [5] The Appellant raises three issues at the RAD: a. Did the RPD err in its plausibility findings? b. Did the RPD err by breaching natural justice by failing to advise the Appellant that the panel had concerns about the authenticity of documents? c. Did the RPD err in its assessment of state protection? ANALYSIS Determinative Issue [6] The determinative issues in this appeal are the credibility of the Appellant and the availability of state protection. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 [8] No new evidence has been adduced and there is no request for an oral hearing. Arguments [9] Counsel argues that the panel made unfounded and unsupported implausibility findings. Counsel argues that the first implausibility finding was that the Appellant should have been aware of his business' gross and net revenues if he really owned a business.3 [10] I am unsure that the above statement translates into an implausibility finding; however, the panel did err in presuming that the Appellant did not know his gross and net revenues as the Appellant clearly testified that his monthly revenue was XXXX XXXX XXXX XXXXincluding expenses (which translates to gross), his yearly income of about XXXX XXXX XXXX XXXX XXXX XXXX with XXXX XXXX XXXX XXXX as taxable (net) income. Although the Appellant did not use the same terminology (gross income and net income) as is used in Canada and elsewhere, it is clear that he is relating both approximate gross and net incomes.4 [11] The panel did err in making a negative inference based on the above issue. [12] The second plausibility finding according to counsel occurred when the panel found "... the claimant's response while possible not probable,"5 in reference to the police having taken most of his documents. [13] Again, I am unsure that this is a plausibility finding at all. Plausibility findings would normally be made only in those situations where something could not possibly have happened. The panel has stated that the response was "possible" but not probable, which means that the panel found the answer to be plausible. I find no error in this finding. [14] The third plausibility finding according to counsel occurred when the panel determined that, on a balance of probabilities, the documents6 in evidence were manufactured in an attempt to embellish the claim. The panel made that finding based on the fact that the police confiscated all of the business documents found in the Appellant's home but not those documents held elsewhere (not in the same place as the seized documents). It was those documents held elsewhere that the Appellant was able to present to the Board. It was these documents that the panel found fraudulent simply because the Appellant was unable to produce other documents. The Appellant testified that those documents presented to the panel were not in the same place as the documents which were seized. [15] The panel found that there was insufficient documentary evidence to confirm that the Appellant did own a business, apparently based on the fact that the Appellant failed to produce any company invoices or other paperwork other than the two documents mentioned above. However, the Appellant also adduced a copy of his business registration.7 [16] The panel appears to have dismissed these documents for no valid reasons. It is an error to dismiss evidence in front of the panel simply based on the lack of other evidence which the panel believes should be in front of her. [17] The Appellant was questioned thoroughly about his gross and net incomes for his business, which were answered in a satisfactory manner in my mind. The Appellant disclosed some documents supporting the existence of his former business and gave a reasonable explanation for the lack of more documentary evidence in support of that ownership. [18] The panel failed to advise the Appellant that she was suspicious of these documents and failed to request permission of the claimant/Appellant to contact Tbilisi. [19] I find that on a balance of probabilities, the Appellant did own and operate a business in Tbilisi, Georgia. [20] Counsel argues that the panel again erred when it gave no weight to the Appellant's medical documentary evidence, again based on the negative credibility findings made earlier. However, I have found those earlier negative findings to have been unjustifiable as there was insufficient evidence adduced to contradict the Appellant's evidence or to show cause for the panel to find those documents to be fraudulent. It is an error for the panel to declare evidence as fraudulent with no evidence to establish that the documents are in fact fraudulent. In these cases, it is nothing more than unsubstantiated speculation on the part of the panel that these documents are fraudulent. [21] As there is no reasonable cause to doubt the authenticity of the medical evidence, I find that the panel did err in dismissing this evidence as it did. [22] The panel made another negative credibility finding because the Appellant testified that his accountant in Georgia did not keep copies of the Appellant's tax returns. The panel found that it was reasonable to expect the accountant to keep such copies. Here, the panel is imposing Canadian standards of business practice on Georgian business people, with no evidence adduced to support the panel's presumption that accountants in Georgia do keep copies of client tax returns. Imposing Canadian standards of business practice on foreign businesses is an error. [23] Counsel argues that the panel's negative finding based on the Appellant's failure to seek a lawyer's advice is an error. The Appellant testified that he went to the Office of the Prosecutor of Georgia to report the issues with the local police. There, he was told he had insufficient evidence for the Prosecutor to proceed. The Appellant gave no reasonable answer to the question of why he did not seek legal counsel. The Appellant did testify that the Prosecutor's office is a higher authority and that neither a lawyer nor the Ombudsman could do anything (if the Prosecutor could do nothing). [24] The panel considered the above as a failure to do all to seek legal recourse for his troubles. Consequently, the panel made another negative credibility finding for that reason. [25] I concur with the panel on this issue. There are certain principles which must be followed by a person who is or believes he is being persecuted before he seeks the protection of another country. They include the following: Presumption of state protection [26] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. (Ward8) The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available. (Ward9) The presumption of state protection applies equally to cases where the state is alleged to be a persecutor. (Hinzman10) Rebutting the presumption [27] To rebut the presumption of state protection, a claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens, (absent an admission by the national's state of its inability to protect that national). (Ward11) A claimant who alleges that the state protection is inadequate must persuade the Board that the evidence establishes that the state protection is inadequate. (Flores Carrillo12) The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that the state protection is inadequate. (Flores Carrillo13) Thus RPD is not obliged to prove that the state can offer the claimant effective protection, rather, the claimant bears the legal burden of rebutting the presumption that state protection exists by adducing clear and convincing evidence which satisfies the RPD on a balance of probabilities. (Kaleja14) Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection. (Villafranca15) The Board is not obliged to prove that a state can offer its citizens effective state protection. (Quintero Sanchez16) Isolated cases of persons having been victimized may not reverse the presumption of state protection. A state of profound unrest with ineffective protection for the claimant may, however, have reversed it. (Mendivil17) A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. (Judge,18 Kim,19 Camacho20) Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection. (Rio Ramirez21) Obligation to approach state authorities [28] 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. (Ward22) However, a claimant is not required to risk his life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. (Ward23) 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. (Camacho24) This is so even where the protective services of the state have gaps or deficiencies. (Salazar Santos25) It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system. (Marquez Alvarez,26 Romero Castaneda27) Requirement to exhaust all recourses [29] The claimant's (evidentiary) burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all courses of action open to them. (Kadenko28) A claimant from a democratic country will have a heavy burden when attempting to show that the should not have been required to exhaust all of the recourses available to him, domestically before claiming refugee status. (Hinzman,29 Satiacum30) The presumption of state protection applies equally to cases where the state is alleged to be a persecutor. (Hinzman31) However, where agents of the state are themselves the source of persecution, the presumption can be rebutted without exhausting all avenues of recourse in the country. (Chaves32) Where the alleged persecutors are confined to a specific location or are rogue elements acting outside their jurisdiction, the RPD must still assess whether it was objectively reasonable for the claimant to have sought state protection. (Contreras Martinez,33 Luthra34) The adequacy of state protection cannot rest on the subjective fear of the claimant. A finding of adequate state protection is premised on an objective assessment that must be made independently of whether the claimant possesses a subjective fear. (Martinez,35 Gallo Farias,36 Torales Bolanos37) While the effectiveness of the protection is a relevant consideration , as protection must have a certain degree of effectiveness (Perez Burgos,38 Quinatzin39), the preponderance of recent Federal Court decisions has held that the test for a finding of state protection is whether the protection is adequate, rather than effectiveness per se. (Flores,40 Mendez,41 Samuel,42 Cuevas Sandoval,43 Hernandez Gonnzalez,44 Sanchez,45 Velasquez,46 Valerio Cueto,47 Cosgun,48 Flores Campos,49 Zupko,50 Lopez Gonzalez,51 Salvagno52) As noted earlier, the protection need not be perfect. (Zalzali53) One accepted measure of assessment is whether the state is making "serious efforts" to protect its citizens. (Villafranca) This standard continues to be applied in many Federal Court decisions. (Reyes Montalvo, 54 Lopez Gea,55 Atriano Saldana,56 Sanchez,57 Zupko58) However, some Federal Court decisions have rejected it (Lopez,59 Valencia Pena,60 Koky61) or have qualified its use, as not being co-extensive with adequacy of state protection. (Cina,62 Velazquez,63 Williams64) In determining whether protection is adequate, it is important to analyze not merely whether a legislative and procedural framework for protection exists, but also whether the state, through the police or other authorities, is able and willing to effectively implement that framework. (Elcock,65 Torres,66 Wisdom-Hall67) A state must engage in serious efforts to protect its citizens at the operational level. (Velazquez,68 Williams69) Where there is evidence that the government is taking steps to protect the target group, in the absence of evidence to the contrary, it must be presumed that these steps will be effective. (Manorath70) Sources of protection [30] Not only is protection offered by police agencies to be considered but other state agencies as well. (Flores Carrillo,71 Sanchez Gutierrez,72 Hernandez Gonzalez,73 Ramirez Albor,74 Hall75) Some Federal Court decisions have expressed reservations in this regard, however, stating that it is the police force that has the primary responsibility to protect a nation's citizens and, unless there is evidence to the contrary, alternative institutions do not constitute avenues of protection per se. (Flores Zepeda,76 Barajas,77 Lopez Gonzalez78) Some Federal Court cases state that protection can be provided not just by state-run agencies such as the police but also by non-governmental agencies which receive state funding. (Virag,79 Karoly,80 Mendez,81) However, other Federal Court decisions hold a contrary view. (Garcia,82 Naumets,83 Corneau84) [31] In this particular case, the Appellant has not adhered to the above principles. In particular, the Appellant has failed to exhaust all sources of protection. The Appellant did not hire legal counsel, did not attend to the Ombudsman, nor did he approach any senior police officials. The Appellant's sole contact with the state on this issue was with the prosecutor's office. After being told there was nothing they could do, the Appellant simply gave up. It is reasonable to expect that any man, any business man, who is having his business stolen out from under him by corrupt officials would do everything in his power to prevent that from happening. It is also reasonable to expect that businessman to exhaust every resource in his arsenal to save his business and himself from that same corruption. In this particular case, the Appellant made one complaint to one office and then gave up. There is no way of telling what may have occurred if the Appellant pursued his case with other authorities and perhaps with the aid of legal counsel but the Appellant has the obligation to try before seeking protection in a foreign country. He did not try hard enough. [32] According to the documents on file in the Board's National Documentation Package (NDP)85 for Georgia, the 2013 Police Law (section 57 (1)) places the activities of police under the control and oversight of the General Inspection Department, which is responsible for investigating complaints against police officers and for carrying out disciplinary actions when required. The same document indicates that this body is also effective, having caused the arrest of 18 police officers for various crimes during the year (2013). This body is one of the effective arms of state protection which the Appellant failed to access for protection. [33] It is reasonable to presume that the police officers involved in the illegal activity against the Appellant were in fact rogue officers acting outside of their legal boundaries. Although it may not have been prudent for the Appellant to approach the local police department, he was left with viable opportunities to access higher level police officers at the general headquarters level as well as the General Inspection Department and the Ombudsman. The Appellant did none of these things. It is reasonable to presume that, had the Appellant retained counsel for this issue, counsel would likely have advised the Appellant to pursue justice in Tbilisi. [34] Counsel has argued that the panel has identified no evidence to show that complaining to a lawyer or the Ombudsman is actually effective in ensuring a person threatened by the police can force the state prosecutor to take action. [35] Counsel is obviously misinformed regarding onus. [36] There is no onus on the Board to prove the existence of adequate state protection. To rebut the presumption of state protection, a claimant/Appellant must provide "clear and convincing" evidence of the state's inability to protect its citizens, (absent an admission by the national's state of its inability to protect that national). (Ward86) The onus is on the Appellant to prove that state protection is not available rather than on the Board to prove that it is available. [37] Counsel's submissions regarding the psychiatric report of a Canadian doctor is not of value on the issue of state protection. I find this because the doctor had very little information other than what the Appellant told the doctor. The Appellant was attending the psychiatrist for only one reason and that was to bolster his refugee claim. There was no previous relationship with the doctor nor is there any indication of follow up treatment with the doctor. For these reasons, I give the psychiatric report little weight in my decision. Delay in leaving Georgia [38] Counsel argues that the panel erred in the assessment of delay. The panel has not clearly identified at what point she believes the Appellant should have left Georgia and has made her finding without regard for the Appellant's testimony. The Appellant testified that in January of 2016, the Appellant re-located to Bandze to hide out from his persecutors. Counsel argues that it cannot be presumed that a refugee leaves for a foreign safe haven when he has not at least tried to find an internal flight alternative (IFA), which is what the Appellant did to escape his persecutors. Only after he was found and beaten in his IFA, did the Appellant decide to seek refuge outside of his country. [39] Counsel is correct. Had the Appellant not taken the time to find an IFA, the panel or I would have taken issue with that. As the Appellant was attempting to find a safe internal flight alternative, his delay in leaving Georgia was not excessive. The panel erred by failing to consider the need to try to find an IFA. Delay in Claiming [40] Counsel argues that the panel erred in its assessment of the alleged delay in claiming in Canada. The Appellant arrived in Canada on XXXX XXXX XXXX XXXX but did not make a claim for protection until May 25, 2017, well over one year later. The Appellant testified that he did not claim sooner because he was hopeful that an upcoming election may change things. The Appellant also testified that he came to Canada rather than to a much closer European country because he believed he would be safer in Canada than in Europe, from his persecutors. [41] The panel did not accept this story as reasonable; however, counsel argues, the panel failed to consider that the Appellant was never in danger of refoulement as he was in possession of a valid visitor's visa and was able to extend it. As the Appellant was in no danger, he had no reason to request protection until such time as it became obvious that he may have to return to Georgia. [42] I concur with counsel on this issue. As the Courts have spoken in Gyawali 87 it is not implausible for a refugee to delay claiming refugee status while he or she has the means to remain abroad, especially when he or she has a valid visa. [43] I find that there was no unjustifiable delay in claiming refugee protection in Canada. Breach of Natural Justice [44] Counsel argues that the panel breached natural justice by failing to advise the Appellant of her concerns that certain documentary evidence was fraudulent. By failing to advise the Appellant of these concerns, the Appellant was deprived of an opportunity to address those concerns. Such address may have included offering to have the documents verified in some agreeable manner. The panel herself wrote that it is easy to verify state-issued documents as genuine, in Georgia. [45] Counsel argues that the hospital record, deemed fraudulent by the panel in her reasons, could have been verified with a phone call to the issuing hospital. The business contracts could have been verified by calling the contractors. [46] The point here is that the panel decided that certain documents were fraudulent and through that decision, decided all the documentary evidence was tainted. The panel did this without giving the Appellant an opportunity to rebut the panel's presumption. That is a breach of natural justice. Summary [47] After a complete and fulsome analysis, I have unfortunately come to the conclusion that the panel did breach natural justice. However, in this case, that breach is not fatal to the decision because even if the documents had been accepted as genuine, the determinative issue at hand would still be state protection. I have concluded my analysis of the file and have found that the Appellant has failed to rebut the presumption of state protection with clear and convincing evidence. For that reason, this appeal fails. Disposition [48] The RAD has found that the RPD decision will stand. CONCLUSION [49] Pursuant to paragraph 111(1)(a) of the 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 August 8, 2018 Date 1 Exhibit RPD-1, RPD's Record, at pp. 13-33. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit RPD-1, RPD's Record, Reasons and decision, at p. 6, para. 14. 4 Exhibit RPD-1, RPD's Record, Audio recording of hearing at 00:29:00 to 00:37:00. 5 Exhibit RPD-1, RPD's Record, Reasons and decision, at p. 7, at para. 15. 6 Exhibit RPD-1, RPD's Record, at pp. 115-127. 7 Exhibit RPD-1, RPD's Record, at pp. 115-118. 8 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 725. 9 Ibid. 10 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 171, at para. 54 11 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. 12 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at paras. 20, 24. 13 Ibid., para. 30. 14 Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106), Near, June 9, 2011, 2011 FC 668. 15 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at 133. The Federal Court has held that Villafranca is not inconsistent with Ward. See Velarde-Alvarez, Jorge Luis v. S.S.C. (F.C.T.D., no. IMM-194-94), McKeown, February 9, 1995. Reported: Velarde-Alvarez v. Canada (Secretary of State) (1995), 27 Imm. L.R. (2d) 88 (F.C.T.D.); Boston, Edwin v. M.C.I. (F.C., no. IMM-6554-06), Snider, December 4, 2007, 2007 FC 1271. For a contrary view see Garcia v. Canada (Minister of Employment and Immigration), [2007] 4 F.C.R. 385 (F.C.); 2077 FC 79 (Campbell J.); the Federal Court declined to follow Garcia in Tellez Alvarez, Jaime Alejandro v. M.C.I. (F.C., no. IMM-301-08), Mactavish, August 6, 2008, 2008 FC 933. Moreover, Justice Campbell's view that the presumption of state protection can be rebutted if the claimant produces "some clear and convincing evidence" that the state has failed to effectively respond to requests for protection is inconsistent with the holding of the Federal Court of Appeal in Flores Carrillo which held that a heavier evidentiary onus is required to rebut the presumption. 16 Quintero Sanchez, Valentin v. M.C.I. (F.C., no. IMM-4478-10), Near, April 26, 2011, 2011 FC 491. 17 Mendivil, Luis Altamirano v. S.S.C. (F.C.A., no. A-132-93), Marceau, Stone, Desjardins, February 7, 1994. Reported: Mendivil v. Canada (Secretary of State) (1994), 23 Imm. L.R. (2d) 225 (F.C.A.). 18 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004, 2004 FC 1089. 19 Kim, Eun Mee v.M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005, 2005 FC 1126. 20 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 21 Rio Ramirez, Leticia Lizet Del v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 22 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. 23 Ibid. 24 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 25 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 26 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010, 2010 FC 197. 27 Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010, 2010 FC 393. 28 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.), at 536. 29 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 171, para. 46. 30 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.), at 176. 31 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 171, at para. 54 32 Chaves, Alejandro Jose Martinez v. M.C.I. (F.C., no. IMM-603-04), Tremblay-Lamer, February 8, 2005, 2005 FC 193. 33 Contreras Martinez, Luis Amado v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006, 2006 FC 343. 34 Luthra, Bhupinder Singh v. M.C.I. (F.C., no. IMM-1385-08), Teitelbaum, September 22, 2008, 2008 FC 1053. 35 Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no. IMM-7329-04), Phelan, July 29, 2005, 2005 FC 1050. 36 Gallo Farias, Gisela v. M.C.I. (F.C., no. IMM-4020-07), Kelen, May 6, 2008; 2008 FC 578. Psychological and medical evidence is not relevant with respect to the issue of state protection and the issue of whether the fear is objectively well founded. See also, to this effect: Navarro Conseco, Diana Elizabeth v. M.C.I. (F.C., no. IMM-1567-06), Layden-Stevenson, January 24, 2007, 2007 FC 73; Contreras Martinez, Luis Amado v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006, 2006 FC 343. The Federal Court also held in Gallo Farias that the Gender Guidelines are not relevant to the issue of state protection. In Navarro Conseco, the Federal Court held that the Gender Guidelines do not necessarily absolve claimants from seeking the protection of the state. 37 Torales Bolanos,Magaly v. M.C.I. (F.C., no. IMM-2482-10), Russell, March 30, 2011, 2011 FC 388. The Court stated that the adequacy of state protection cannot be assessed on the basis of the claimant's reluctance or failure to seek it. The claimant cannot argue that state protection is inadequate in Mexico because, as a vulnerable woman, she is reluctant to seek it. She may well have subjective fears in this regard, but if the state can, objectively speaking, provide adequate protection for women in her position then she has not rebutted the presumption of state protection. 38 Perez Burgos, Gerson Alejandr v. M.C.I. (F.C., no. IMM-2028-06), Blanchard, December 21, 2006; 2006 FC 1537: "the mere willingness of a state to ensure the protection of its citizens is not sufficient in itself to establish its ability. Protection must nevertheless have a certain degree of effectiveness." 39 Quinatzin, Aguilar Gutierrez v. M.C.I. (F.C., no. IMM-1907-07), O'Keefe, August 12, 2008, 2008 FC 937. 40 Flores, Nubia Victoria Suarez v. M.C.I. (F.C., no. IMM-4613-07), Mosley, June 9, 2008, 2008 FC 723. 41 Mendez, Luis Arceo v. M.C.I. (F.C., no. IMM-4439-07), Mosley, May 7, 2008, 2008 FC 584. 42 Samuel, Julia Vanessa v. M.C.I. (F.C., no. IMM-5175-07), Lagacé, June 18, 2008, 2008 FC 762: "To require full effectiveness of foreign police and judicial systems would be to insist on a standard for other states which we, in Canada, are not always able to achieve ourselves. Where there is strong evidence to show that the police and judicial systems of democratic states are so ineffective as to be inadequate, that might be a reason for finding that state protection is not available." See also Ryan, Shamika Shonette v. M.C.I. (F.C., no. IMM-3722-10), Rennie, March 8, 2011; 2011 FC 269, for a similar approach: "The RPD concluded that state protection was not so ineffective as to be inadequate and undertook a thorough and balanced review of the evidence ..." 43 Cuevas Sandoval, Dora Luz v. M.C.I. (F.C., no. IMM-5394-07), Zinn, July 14, 2008, 2008 FC 868. 44 Hernandez Gonzalez, Karla Del Carmen v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008, 2008 FC 1259. 45 Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008, 2008 FC 1336. 46 Velasquez, Ventura Sarai Batres v. M.C.I. (F.C., no. IMM-2299-08), de Montigny, February 2, 2009, 2009 FC 109. 47 Valerio Cueto, Artemio v. M.C.I.. (F.C., no. IMM-232-09), Frenette, August 10, 2009, 2009 FC 805. The Court noted that "the preponderant case-law supports the test of an 'adequate' state protection rather than an 'effective or perfect' state protection," and commented that the test found in Garcia v. Canada (Minister of Employment and Immigration), [2007] 4 F.C.R. 385 (F.C.); 2007 FC 79 (Campbell J.), "resembles unequivocally the 'effective' test which the case-law has not accepted, preferring the 'adequacy' test." 48 Cosgun, Kiraz v. M.C.I. (F.C., no. IMM-4649-09), Crampton, April 14, 2010, 2010 FC 400. See also Garcia Rivadeneyra, Blanca v. M.C.I. (F.C., no. IMM-4710-09), Crampton, August 25, 2010, 2010 FC 845. 49 Flores Campos, Gabriela De Las v. M.C.I. (F.C., IMM-6233-09), Boivin, August 26, 2010, 2010 FC 842: It is not sufficient for a claimant to show that state protection is not "effective" or "perfect" to rebut the presumption of state protection; rather, a claimant must establish that state protection is "inadequate". 50 Zupko, Robert v. M.C.I. (F.C., IMM-2091-09), Snider, December 22, 2010, 2010 FC 1319. 51 Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011, 2011 FC 592. The Court held that the test of police protection is adequacy. The test is not that of successful arrest, detention and conviction. A failure of state protection cannot be founded on a failure to bring a perpetrator to justice. 52 Salvagno, Sergio Santiago Raymond v. M.C.I. (F.C., no. IMM-5848-10), Pinard, May 26, 2011, 2011 FC 595. The Court held that the fact that the police were not able to solve the crimes does not necessarily mean that they did not try to do so. While state protection may not have been completely effective, this does not mean it was not adequate. 53 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.). 54 Reyes Montalvo, Emmanuel v. M.C.I. (F.C., no. IMM-4703-07), Tremblay-Lamer, June 9, 2008, 2008 FC 716. 55 Lopez Gea, Luz Alicia v. M.C.I. (F.C., no. IMM-5160-07), Lagacé, June 17, 2008, 2008 FC 750. 56 Atriano Saldana, Pilar v. M.C.I. (F.C., no. IMM-5503-07), Dawson, September 30, 2008, 2008 FC 1092. 57 Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008, 2008 FC 1336. 58 Zupko, Robert v. M.C.I. (F.C., IMM-2091-09), Snider, December 22, 2010, 2010 FC 1319. 59 Lopez, Jeronimo Ocampo v. M.C.I. (F.C., IMM-1748-10), Hughes, November 23, 2010, 2010 FC 1176: "Here the Member found that Mexico 'is making serious and genuine efforts' to address the problem. That is not the test. What must be considered is the actual effectiveness of the protection." 60 Valencia Pena, Juana Lourdes v. M.C.I. (F.C., no. IMM-4907-10), Rennie, March 17, 2011, 2011 FC 326. 61 In Koky, Milan v. M.C.I. (F.C., no. IMM-2577-11), Russell, December 2, 2011, 2011 FC 1407, the Court stated: "In my view, then, the RPD has committed an error of law in its conclusion that "serious efforts" equates to adequate state protection. ... it is not enough that a government is willing to provide protection and is making efforts to do so. In order for state protection to be present, the efforts made must adequately protect citizens in practice." 62 In Cina, Milan v. M.C.I. (F.C., no. IMM-1773-10), Kelen, May 31, 2011, 2011 FC 635, the Court noted that although the RPD did refer to the "serious efforts" of the Czech government to combat discrimination against Roma, the reasons demonstrate that the RPD was providing details of those efforts as part of a broader description of the adequacy of state protection. 63 In Velazquez, Rafael Sotelo v. M.C.I. (F.C., no. IMM-6581-10), Near, June 27, 2011, 2011 FC 775, the Court stated: "Case law does support the contention that serious efforts by a state will only translate into adequate state protection where there is the capacity to implement policy changes at an operational level." 64 In Williams, Mishka Matika v. M.C.I. (F.C., no. IMM-735-11), O'Reilly, October 6, 2011, 2011 FC 1134, the Court stated: "When examining whether a state is making serious efforts to protect its citizens, that protection must be evaluated at the operational level, particularly in cases of violence against women." 65 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999. 66 Torres, Betsabe Del Carmen Balmaceda v. M.C.I. (F.C., no. IMM-2009-04), Pinard, May 10, 2005, 2005 FC 660. 67 Wisdom-Hall, Tanesha v. M.C.I. (F.C., no. IMM-4581-07), Hughes, May 28, 2008, 2008 FC 685. 68 In Velazquez, Rafael Sotelo v. M.C.I. (F.C., no. IMM-6581-10), Near, June 27, 2011, 2011 FC 775, the Court stated: "Case law does support the contention that serious efforts by a state will only translate into adequate state protection where there is the capacity to implement policy changes at an operational level." 69 In Williams, Mishka Matika v. M.C.I. (F.C., no. IMM-735-11), O'Reilly, October 6, 2011, 2011 FC 1134, the Court stated: "When examining whether a state is making serious efforts to protect its citizens, that protection must be evaluated at the operational level, particularly in cases of violence against women." 70 Manorath, Rahonie v. M.C.I. (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. 71 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para. 34. 72 Sanchez Gutierrez, Alejandro v. M.C.I. (F.C., no. IMM-237-08), Mactavish, August 26, 2008, 2008 FC 971. 73 Hernandez Gonzalez, Karla Del Carmen v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008, 2008 FC 1259. 74 Ramirez Albor, David v. M.C.I. (F.C., no. IMM-2359-09), Boivin, December 1, 2009, 2009 FC 1231. 75 Hall, Zita v. M.C.I. (F.C., no. IMM-3705-10), Rennie, March 4, 2010, 2011 FC 261. 76 Flores Zepeda, Rosario Adriana v. M.C.I. (F.C., no. IMM-3452-07), Tremblay-Lamer, April 16, 2008, 2008 FC 491. Reported: Zepeda v. Canada (Minister of Citizenship and Immigration), [2009] 1 F.C.R. 237 (F.C.). 77 Barajas, Leonardo Macias v. M.C.I. (F.C., no. IMM-2393-09), Russell, January 7, 2010, 2010 FC 21. 78 Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011, 2011 FC 592. The Court noted that, while the existence or non-existence of these agencies formed part of the contextual assessment of the ability of the state to protect its citizens, what was critical to the finding of state protection was the fact that the police responded to the assault when it was reported. 79 Virag, Istvan Pal v. M.C.I. (F.C.T.D., no. IMM-2761-02), Simpson, June 2, 2003, 2003 FCT 698. 80 Karoly, Szalo v. M.C.I. (F.C., no. IMM-1566-04), Blais, March 24, 2005, 2005 FC 412. 81 Mendez, Luz Maria Sonia Carrera v. M.C.I. (F.C., no. IMM-1806-08), Pinard, December 22, 2008, 2008 FC 1385. 82 Garcia v. Canada (Minister of Employment and Immigration), [2007] 4 F.C.R. 385 (F.C.), 2007 FC 79 (Campbell, J.). 83 Naumets, Nina v. M.C.I. (F.C., no. IMM-2071-07), Mosley, April 22, 2008, 2008 FC 522. 84 Corneau, Maria Madeleine v. M.C.I. (F.C., no. IMM-6120-10), Zinn, June 20, 2011, 2011 FC 722. 85 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Georgia, 31 May 2017, at item10.2. 86 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724. 87 Gyawali v. Canada, 2003 FC 1122. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-20292 RAD.25.02 (July 05, 2018) Disponible en français 2 RAD.25.02 (July 05, 2018) Disponible en français