TB5-09371

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 : TB5-09371 TB5-09372 TB5-09373 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a.XXXX XXXX XXXX) XXXX XXXX XXXX(a.k.a.XXXX XXXX XXXX) XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 9, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha Green Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) and her two minor sons, XXXX XXXX and XXXX XXXX, all citizens of Greece, are appealing their decisions of the Refugee Protection Division (RPD) denying their claims for refugee protection. No new evidence has been submitted in support of this appeal nor is the Appellant requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, asking the RAD to substitute a positive determination or, in the alternative, to remit the matter to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] The RAD finds the decision of the RPD to be wrong in fact. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant is fearful of her common-law partner, XXXX, who is the father of her two sons. She began living with XXXX in 2005 and although he was 20 years her senior, initially their relationship was good. However, the last three years he became physically abusive. [4] In XXXX 2011, XXXX threatened to kill the Appellant. She and her children left him to live with her mother and step-father. In XXXX 2011, XXXX threatened the Appellant and then attacked her step-father and shot him four times. XXXX was arrested, tried and convicted for the crime and sentenced in XXXX 2012 to XXXX years in prison. XXXX acknowledged in court that his behaviour was revenge for the Appellant and their two sons having left him. [5] The Appellant had complained to the police following an incident in 2010, and the police indicated that if he became violent, he would be detained for twenty-four hours. Since the Appellant felt that this was insufficient punishment, she was hesitant to approach the police in the future. [6] After the Appellant left XXXX, the police told her that they could issue a restraining order against XXXX but they could not guarantee protection for her. Accordingly, the Appellant believes that once XXXX is released he will harm her and kidnap their sons. She believes that he may be released from prison in the near future. ROLE OF THE RAD [7] Counsel has made no submissions in this regard. However, a recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision. 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Was the RPD's conclusion with respect to the Appellant's efforts to seek protection in her country of origin reasonable, in light of the evidence? State protection [8] The RPD cited the Federal Court jurisprudence with respect to the issue of state protection. It further noted that Greece is a democratic state with a functioning police and judiciary in place.2 The RPD acknowledged that domestic violence is a problem in Greece, which police have attempted to address, however it has not always been successful. [9] In the particular circumstances of this case, the RPD noted that due process had taken place and the perpetrator was sentenced and he is currently incarcerated. Moreover, it noted that the letter from the Appellant's lawyer (RPD exhibit 9) indicates that XXXX would have to fulfil certain requirements in order to be eligible for parole and that if considered a danger in the community, he would not be released. Although the Appellant is fearful that XXXX will hire someone to harm the Appellants, there is nothing to prevent him from doing so while he is incarcerated and he has not done so. Accordingly, the RPD found that the Appellants had not rebutted the presumption of state protection. [10] The Appellant submits that she did not bring forward a claim against XXXX because given her past interaction with the authorities, she believed the police could not bring effective protection. Moreover, the Appellant argues that it has been established that refugee claimants need not risk their lives in seeking protection merely to demonstrate its ineffectiveness. [11] It is further argued by the Appellant that the Chairperson's Guidelines (Women Refugee Claimants Fearing Gender-Relation Persecution) was not mentioned in the RPD reasons nor did the RPD demonstrate how these guidelines had been applied. [12] The Appellant further submits that the RPD erred in misconstruing evidence to find that the police provided protection to the Appellant in sentencing her former partner, XXXX. It is submitted that the RPD misconstrued the police's obligation to protect society as a whole from gun violence, as opposed to the obligation it owed to the Appellant with respect to domestic abuse. [13] Lastly, the Appellant submits that the RPD engaged in speculation in finding that XXXX would not be eligible for early release. It is argued that the RPD in coming to this conclusion engaged in speculation on what the authorities will decide when making a determination in the parole hearing. RAD'S FINDINGS [14] On the latter issue, the RAD concurs with the Appellant that the RPD engaged in a speculative finding. At the end of the day, the perpetrator will be released and the Convention refugee definition is forward-looking. Moreover, after listening to the audio recording of the proceedings, the RAD finds that there is mention of short periods of interim release, which could occur at any time. In any event, any finding in this regard would be speculative on the part of either the RPD or the RAD. Accordingly, this finding cannot stand. [15] The RAD also concurs with the Appellant that the RPD erred in its analysis of state protection when it considered that due process had occurred when the perpetrator was incarcerated for attempting to kill the Appellant's step-father. This does not address the issue of state protection with respect to the domestic violence against the Appellant. Moreover, the RAD finds that this is even more significant, given that the Appellant now knows that XXXX has already shown that he can commit serious and violent acts of revenge and that the Appellant is a target. [16] The RAD finds that the issue of state protection was not thoroughly canvassed. Furthermore, the RPD when identifying the issues at the outset of the hearing, put internal flight alternative on the table, however it did not canvass this issue at the hearing. After listening to the audio recording, delay in claiming and the issue of the children being in Canada prior to the Appellant, were not addressed. The RAD finds that it is, therefore, necessary to re-examine all the issues in this claim. [17] Since there is no new evidence, the RAD does not have the jurisdiction to conduct an oral hearing. [18] The RAD finds the decision of the RPD to be wrong in fact. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara November 9, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Greece (30 June 2015), item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09371 TB5-09372 TB5-09373