VB4-01518

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 : VB4-01518 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal (Also XXXX XXXX XXXX XXXX) Appeal considered / heard at Appel instruit à Date of decision October 21, 2014 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) Lesley Stalker Conseil(s) du (de la/des) the subject of the appeal 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 XXXX also known as XXXX XXXX(the "appellant"), appeals the April 22, 2014 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on April 1, 2014 with a Notice of Decision being sent to the appellant on April 22, 2014. The RPD found that the appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act ("IRPA" or the "Act").1 DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1)(a) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that XXXX XXXX XXXX also known as XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] The appellant was unrepresented at the RPD Hearing on April 1, 2014. [4] The appellant is represented by counsel before the RAD. [5] The Minister has intervened before the RPD, but has not intervened before the RAD. [6] A transcript of the RPD proceedings has been included in the Appellant's Record (AR).2 [7] The appellant does seek to present "new" evidence3 to the RAD pursuant to subsection 110(4) of IRPA. Basis of Claim [8] According to the allegations set out in the appellant's Basis of Claim form (BOC),4 the appellant's father was arrested by the XXXX XXXX XXXX XXXX in order to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The XXXX XXXX XXXX XXXX threatened to execute his father. The appellant began XXXX XXXX XXXX XXXX XXXX XXXX XXXX and as a result, his father was released. The appellant began receiving threatening messages while he was in the Netherlands through Facebook and the phone. [9] The appellant did not receive the expected protection from the Dutch government and his case was never taken seriously. The appellant concluded that a small country such as the Netherlands, that hosts the Iranian embassy, could never be a safe place for him and he decided to come to Canada to seek asylum. [10] The appellant made claims against Iran and the Netherlands. The appellant has been a resident of the Netherlands since XXXX 2009. He made an asylum claim in the Netherlands on XXXX XXXX, 2012 and it was accepted on XXXX XXXX XXXX 2012.5 [11] The appellant arrived in Canada in XXXX 2014 and made a claim for refugee protection in March 2014. [12] The RPD Member found the appellant to be excluded from making a refugee claim in Canada pursuant to Article 1E of the 1951 Convention6 which states: This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country.7 GROUNDS OF APPEAL [13] The appellant's submissions as to the grounds of this appeal can be summarized as follows:8 * Did the RPD Member breach its' duty of procedural fairness by not ensuring that the appellant, who was unrepresented, had an opportunity to consult with legal counsel before proceeding with the case? * Did the RPD Member err by not ensuring that the appellant understood the legal issues before and throughout the hearing, and giving him a meaningful opportunity to meet the evidentiary requirements by filing country information? * Did the Member err in his state protection analysis by not taking into consideration the danger the appellant faces with respect to the death fatwa against him? REMEDY SOUGHT [14] The appellant has requested that the RAD, under subsection 111(1) (c) of the Act, allow the appeal and refer the matter to the RPD for redetermination by a differently constituted panel. The appellant has also requested an oral hearing, so that he has a meaningful opportunity to respond to the allegations of exclusion and issues relating to state protection. CONSIDERATION OF NEW EVIDENCE [15] Subsection 110(4) of the Act provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [16] The appellant has submitted 10 documents9 as new evidence pursuant to subsection 110(4) of the Act. 1. Affidavit, including death fatwa. 2. RXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX", XXXX XXXX 2012. 3. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2012. 4. Washington Free Beacon, "Iran Spy Network 30,000 Strong. Pentagon Report: Iranian Intelligence linked to spying, terror attacks" 2013. 5. Reporters Without Borders, "Iran: Cyberspace ayatollahs,"11 March 2014. 6. Voice of America, "Iran Gives Hero's Welcome to Killer of Former Prime Minister Shapour Bakhtiar" 18 May 2010. 7. Sahimi, "Chain Murder: Killing Dissidents and Intellectuals, 1988-1998," pbs.org, 5 January 2011. 8. Rehaag, "The Role of Counsel in Canada's Refugee Determinations System: An Empirical Assessment." Osgoode Hall Law Journal 49.1 (2011): 71-116. 9. Barutciski, "The Impact of the Lack of Legal Representation in the Canadian Asylum Process," 6 November 2012. 10. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in 2012. [17] Counsel for the appellant submits that, "this evidence was available at the time of the appellant's hearing on April 1, 2014. However, the claimant was unrepresented and was unaware of the need to file corroborative evidence." [18] I find that all these documents are not admissible as they were reasonably available at the time of the RPD rejection. Moreover, I find that the appellant had the opportunity to present any corroborative evidence to support his allegations not only before the RPD hearing date, but also at the RPD hearing. In reviewing the oral hearing transcript, I find the RPD Member was diligent In ensuring that the appellant was aware of all disclosure that was to be looked at during the course of the hearing. Specifically, on page 12-13 of the RPD oral hearing transcript,10 we see that the RPD Member made copies of any documents the appellant did not bring with him to the hearing. [19] The BOC form states that the appellant is responsible for adding all that is relevant to his case at the time the claim is made and up to the hearing date. I note that the appellant completed his own forms and has the ability to speak and listen in English proficiently. At no point in the hearing does it appear that the appellant was not able to understand the proceedings. Furthermore, I note that the RPD Member, on page 43, of the oral hearing transcript11 grants the appellant a break to give him time to go over his submissions. After the break, the appellant states that he has un-translated 'digital proofs' that he would like to submit.12 However, the RPD Member and Minister's counsel both conceded that they do not have any issues with respect to this evidence. In the RPD Member's reasons, he states that, "I find you to be credible and honest about the information you've provided and about your evidence."13 [20] I find that the appellant has not provided persuasive arguments as to why the 'new evidence' was not before the RPD up to and at the time of the hearing. I find the appellant was given ample opportunities not only before the hearing, but at the hearing, to provide any additional evidence. However, there is no persuasive evidence that the appellant was not given the opportunity to present this evidence. The issue of procedural fairness will be further discussed in this decision. [21] In conclusion, I decline to admit all new evidence in this appeal. [22] As the RAD has not accepted the new evidence, it is not necessary to consider whether to hold an oral hearing as per subsection 110(6) of IRPA. ROLE OF THE RAD [23] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [24] RAD, being a new division, has struggled with the standard of review to be used in assessing RAD appeals based on several Federal Court cases that have differed in their approach of what standard of review should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick14 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: unreasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [25] In recent months, the Federal Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination, including Iyamuremye,15 Alvarez,16 and Huruglica.17 [26] The Federal Court in Iyamuremye addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. "That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion."18 [27] In Alvarez, Justice Shore said that "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."19 Furthermore, Justice Shore stated that "when analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."20 Justice Shore also said in Alvarez that "the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error." 21 [28] In the more recent Federal Court case, Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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."22 Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative. Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable"23. [29] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said, "must review all aspects of the RPD's decision and come to an independent assessment ... Where its assessment departs from that of the RPD, the RAD must substitute its own decision.24" Furthermore, "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 a 'palpable and overriding error'." [30] Counsel submits that, "the right to Counsel at an RPD Hearing is an issue of procedural fairness. As such, the standard of review is correctness. Also, Counsel submits that, "the RAD has a duty to redetermine the questions that were before the RPD, including issues of fact and of law. It errs if it fails to exercise this responsibility by deferring to the decision of the RPD." In reference to the role of RAD when reviewing the issue of state protection, counsel submits that "the RAD has a duty to redetermine the questions that were before the RPD, including issues of fact and law. It errs if it fails to exercise this responsibility by deferring to the decision of the RPD." [31] The Huruglica decision is the most thorough of the decisions, and the only one where the Court has indicated it will certify a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [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.25 [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."26 [32] In this appeal, the RAD has reviewed all aspects of the RPD's decision and has conducted its own independent assessment of all the evidence to determine whether the claimant is a Convention refugee or a person in need of protection. I find that in this particular appeal, we are dealing with an error in law in regard to the alleged error in procedural fairness, and it is clear from the many recent Federal Court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. [33] With respect to the issue of state protection, we are dealing with mixed fact and law. Therefore, I reviewed all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the claimant is a Convention refugee or a person in need of protection. ANALYSIS OF THE MERITS OF THE APPEAL [34] The RPD Member found the appellant to be credible and accepted all the evidence as reliable and trustworthy. The parties have not contested the RPD Member's exclusion findings under Article 1E, and in my own assessment of the evidence, I have no reason to come to a different conclusion. As noted earlier, the reason the claim failed was because the RPD Member found the appellant had state protection in the Netherlands. [35] The appellant argues that the decision of the RPD should be quashed for the following reasons: 1. The Member, knowing that Mr. XXXX was unrepresented and that his case engaged complex and nuanced legal issues relating to exclusion and state protection, should have offered Mr. XXXX an opportunity to retain or consult with legal counsel. The failure to do so constitutes a breach of the principles of natural justice; 2. In the alternative, the Member should have taken special steps to ensure that Mr. XXXX understood the complex and nuanced legal issues in his case, and provided him with an opportunity to file evidence relating to his claim after the hearing; and, 3. The Member erred by invoking a routine analysis of state protection in the Netherlands, without turning his mind to the particular dangers which Mr. XXXX faces by virtue of the death fatwa against him. I also note that counsel for the appellant has introduced new evidence in her submissions. Since I have not accepted the new evidence, I will not be making any comments on these particular submissions and will only focus on evidence that was before the RPD. Procedural Fairness [36] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD in denying procedural fairness to the appellant. [37] The appellant argues that, "his right to procedural fairness was breached when the RPD did not inquire into whether he required the assistance of Counsel, knowing his claim engaged complex and nuanced issues of exclusion." [38] The appellant argues that, "In the Netherlands, asylum seekers are automatically given legal counsel, who help them navigate the asylum process." "In Canada, Mr. XXXX had to navigate the refugee system on his own. He was unaware that there are settlement organizations who could help him complete the myriad CIC forms, apply for a work permit, or apply for social assistance". [39] I have reviewed the entire transcript of the oral hearing before the RPD Member. I first note that the appellant did not state once during the hearing that he was not ready to proceed with the hearing. I also note that the appellant never asked the RPD Member to give him the opportunity to retain counsel to proceed with the hearing. I observed rather that, throughout the hearing, the appellant answered the questions without hesitation, and I noted nothing that might be interpreted as a lack of understanding. [40] Most importantly, I note that the RPD Member was very diligent in continuously asking the appellant if he understood. Even at the start of the hearing, the RPD Member went over the Exclusion issue. The RPD Member also asked the appellant "Do you understand?"27 The appellant replied "Yes".28 The appellant submits that, "the Member did not make any effort to explain what the definition means in plain English. He did not ask the Appellant whether he understood the role of Minister in the hearing, why the Minister had filed information on the Netherlands, or the kind of evidence that he, the Appellant, would need to adduce to refute the Minister's allegation of exclusion".29 [41] I note that the arguments in this appeal do not rebut the exclusion issue. In reviewing the RPD oral hearing, I find that the appellant was very clear about his status in the Netherlands and did not once state that he did not have status in the Netherlands. I also note that the appellant was asked if he received the Minister's disclosure before the hearing date which outlined the issue of exclusion. The appellant stated that he did receive the disclosure but did not have it with him.30 At this point, the RPD Member made copies of any disclosure the appellant did not have. As well, I note that the appellant did not have an interpreter at the hearing and was able to respond to all questions in English. I also note that he completed his own refugee protection application forms without the assistance of an interpreter. I therefore do not accept the appellant's argument that he was unable to understand the nature of the proceedings and the nature of the issues. [42] Furthermore, the right to counsel in the context of an administrative proceeding such as an Immigration and Refugee Board (IRB) refugee hearing is not an absolute right. The law allows refugees the right to representation, but it does not stipulate that every claimant must be represented. Furthermore, the IRB has no role in determining who gets representation or how the representation is arranged. What is absolute in an IRB refugee hearing is the right to a fair hearing. Absence of counsel would give rise to procedural unfairness/denial of fair hearing only when there has been a breach of natural justice. However, I note that the RPD Member did show a high degree of diligence and sensitivity to the fact that the appellant was unrepresented. [43] The IRB's website provides instructions to refugee claimants to assist them in proceeding with their refugee claim. The IRB's Claimant's Kit on the web site provides the following instructions: Do I need counsel to represent me in my claim? You may represent yourself. You are not required to have a counsel to represent you. However, you may decide that you want someone to help you present your case at your hearing. If this is the case, you must ensure that the counsel you choose is available for the date and time shown on your Notice to Appear for a Hearing. You must also immediately give your counsel's contact information in writing to the RPD and also to CIC or to the CBSA (whichever sent your claim to the RPD). Contact information means address, phone number, fax number and email address, if any. If you change counsel during your claim process, you must advise the RPD by completing a new Counsel Contact Information form. [44] I also find that any obligation that may have existed for the RPD's to propose an adjournment of the hearing to the appellant so that he could retain counsel was not absolute. This obligation may arise, however, depending on the circumstances of the case and the profile of the refugee protection claimant. The Federal Court of Canada states the following in Austria:31 As it is clear from the decision, which provides that state-funded legal aid is only constitutionally mandated in some cases, the right to counsel is not absolute. In immigration matters specifically, this Court has repeatedly held that the right to counsel is not absolute: Mervilus v. Canada (Minister of Citizenship and Immigration), 2004 FC 1206 (CanLII), [2004] F.C.J. No. 1460 (F.C.)(QL) at paras. 17-25 where Justice Sean Harrington reviews the law regarding the right to counsel. What is absolute, however, is the right to a fair hearing. To ensure that a hearing proceeds fairly, the applicant must be able to "participate meaningfully": Canada (Minister of Citizenship and Immigration) v. Fast(T.D.), 2001 FCT 1269 (CanLII), [2002] 3 F.C. 373 (F.C.) at paras. 46-47. Therefore, in certain circumstances, the absence of counsel may result in such unfairness during the hearing that Court intervention is warranted. I am not satisfied, however, that the matter at hand represents such a case. I believe that the applicant was indeed afforded a fair hearing. I would note first that it is clear from the transcript that the applicant unmistakably indicated that he was ready to proceed without counsel at the hearing of April 20, 2005. Moreover, no adjournment was requested and, contrary to the appellant's suggestion, there is no indication that he was under any pressure to proceed. He cannot now complain about his choice when he had every opportunity to do so at the hearing. [45] There is no indication that the appellant expressed a need to obtain counsel at any time during the hearing. The RPD Member was diligent in explaining what would happen during the hearing and the procedures to be followed. I also note that the RPD Member was cognizant of the appellant being unrepresented and gave the appellant the opportunity for a break to give him time to understand the hearing process. In particular, the RPD Member, during the hearing, gave the appellant a break before his submissions: RPD Member: All right, sir I think those are my questions. So this is your opportunity to provide me with any additional information you think is important with respect to the Minister's Exclusion argument. So essesntially, if you have anything you feel I should know about the Netherlands and their inability to protect you or reasons why you can't go back to the Netherlands, this is your opportunity. Appellant: Well actually I don't have that much things to add. Well, let me think. No, I have nothing to add because - let me take a look. RPD Member: Do you want to take a few minutes, we can take a short break and you can - Appellant: I appreciate it. RPD Member: Let's take a 10-minute break and we will come back and see if you have anything else you want to add. [46] I find that the RPD hearing was conducted in a fair manner by the RPD Member, taking into consideration that the appellant was not represented by counsel. I conclude that the RPD Member respected procedural fairness and the rules of natural justice in this case. I find that no breach of procedural fairness or natural justice arose during the course of the RPD proceedings in connection with the appellant as a self-represented refugee claimant. STATE PROTECTION [47] The appellant submits that, "the Member's assessment of state protection was perfunctory, and did not account for the unusual nature of the risk which the appellant faced. The Member did not consider the adequacy of the protection offered by the Netherlands' police in the context of fatwa authorizing the execution of the creator of the Facebook Page and videos. He did not consider whether the level of security in refugee camps was sufficient to protect the appellant".32 [48] The RPD Member found that the appellant did have state protection in the Netherlands. The RPD Member states in the decision that, "you have indicated that you do not believe that the Netherlands authorities can protect you but your subjective fear is insufficient in this case to rebut the presumption of state protection".33 The RPD Member further states that, "although there is some animosity towards Muslim immigrants in the Netherlands, you have not indicated any problems with the authorities when you approached them. Based on the evidence before me I do not find that you have provided clear and convincing evidence to establish that the Netherlands authorities are unable or unwilling to provide you with adequate state protection".34 [49] During questioning, the appellant was asked what happened when he went to the police in the Netherlands. He testified he was told that they can send him to a refugee camp for protection. Later, the appellant was asked, "And did you go back to the police and say, you know, 'no, the option of sending me to the refugee camp isn't going to work. Is there anything else you can do for me? Any options?' " 35 The appellant testified "Well, I didn't. I didn't, actually, because that wasn't the first time I went to the police, you know. The first time, I asked for asylum."36 [50] The appellant was asked, "If you were to go back to the Netherlands, do you think the authorities could protect you there?"37 The appellant testified, "No. Not the protection I need, or they can. Because you know, the main problem is the Netherland hosts the Iranian Embassy, and it is a very small country." [51] I find the RPD Member gave ample opportunities to the appellant to explain why he believes state protection was not available for him in the Netherlands. I also cite Federal Court jurisprudence referring to state protection and the obligations of a refugee claimant to pursue it in their place of residence: The RPD is not obliged to provide proof that 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.38 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.39 [52] In this appeal, having found the appellant is a resident of the Netherlands, it was not necessary for the RPD Member to deal with the risk the appellant fears in Iran. Thus, the RPD Member conducted a state protection analysis on the Netherlands only. In reviewing the RPD oral hearing transcript, I note that the RPD Member and the Minister did ask the appellant what he fears in the Netherlands. The appellant was also asked about his interactions with the police concerning the problems he was facing in the Netherlands. I find the appellant has not provided persuasive evidence that the police were not willing or able to help him in the Netherlands. [53] I have also taken into consideration the country documents on the Netherlands. In the Netherlands, the Ministry of Security and Justice oversees law enforcement organizations, as do the justice ministries in the Caribbean territories.40 The military police (Marechaussee) are responsible for border control.41 Civilian authorities maintained effective control over the region.42 Police forces and the government had effective mechanisms to investigate and punish abuse and corruption.43 There were no reports of impunity involving the security forces during the year.44 [54] Taking into consideration the country reports and the appellant's lack of efforts to seek protection in a country where he has residence, I find the appellant has not provided clear and convincing evidence that state protection was not available for him in the Netherlands. Nor is there any information before the RPD Member that state protection is ineffective in the Netherlands. A claimant who alleges that the state protection is inadequate must persuade the IRB that the evidence establishes that the state protection is inadequate.45 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.46 Clearly, the appellant's one attempt at seeking state protection is not sufficient to rebut the presumption of state protection. [55] In summary, having considered all the evidence, I find that I agree with the RPD that the appellant has state protection in the Netherlands, and I also find there is no persuasive evidence that there has not been a breach of procedural fairness in the proceedings before the RPD. REMEDY [56] For all these reasons, I confirm the determination of the RPD in accordance with subsection 111(1)(a) of IRPA, namely, that XXXX XXXX XXXX also known as XXXX XXXX is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) "Rena Dhir" Rena Dhir October 21, 2014 Date 1 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 2 Exhibit 2, Refugee Appeal Division (RAD), Appellant's Record (AR). 3 Exhibit 2, AR. 4 Exhibit 3, Refugee Protection Division Record (RPDR). 5 Exhibit 3, RPDR, p. 16. 6 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979, re-edited, Geneva, January 1992). 7 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, Vol. 189, p. 137. 8 Exhibit 2, AR. 9 Exhibit 2, AR, pp. 8-17. 10 Exhibit 2, AR, RPD Hearing Transcript, pp. 12-13. 11 Exhibit 2, AR, RPD Hearing Transcript, p. 43. 12 Exhibit 2, AR, RPD Hearing Transcript, p. 44. 13 Exhibit 3, RPDR, RPD Decision, pg. 5. 14 Dunsmuir v. New Brunswick, 2008 SCC 9. 15 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 16 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702. 17 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 18 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494, at para. 41. 19 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, at para. 27. 20 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, at para. 28. 21 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, at para. 33. 22 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 23 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 24 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 25 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, at para. 54. 26 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, at para. 55. 27 Exhibit 2, AR, RPD Transcript. 28 Exhibit 2, AR, RPD Transcript. 29 Exhibit 2, AR, Memorandum. 30 Exhibit 2, AR, RPD Transcript. 31 Austria v. Canada (Minister of Citizenship and Immigration), 2006 FC 423, pp. 6-8. 32 Exhibit 2, AR, Memorandum. 33 Exhibit 3, RPDR, RPD Decision. 34 Exhibit 2, AR, RPD Transcript. 35 Exhibit 2, AR, RPD Transcript. 36 Exhibit 2, AR, RPD Transcript. 37 Exhibit 2, AR, RPD Transcript. 38 Nadeem, Choudhry Muhammad v. M.C.I. (F.C.T.D., no. IMM-6320-00), McKeown, November 15, 2001. The Court stated: "The issue is not whether there is clear and convincing evidence that the police would not be reasonably forthcoming with a guarantee of effective protection but whether there is clear and convincing evidence that the police would not be reasonably forthcoming with serious efforts at protection. The onus is on the claimant to produce clear and convincing evidence that the police would not provide protection, not on the Board to provide proof that there will be state protection."; Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106), Near, June 9, 2011; 2011 FC 668. 39 Rio Ramirez, Leticia Lizet Del v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008; 2008 FC 1214. 40 Exhibit 3, RPDR, National Documentation Package (NDP), Netherlands, March 14, 2014, Item 2.1. Netherlands. Country Reports on Human Rights Practices for 2013. United States. Department of State. 27 February 2014. 41 Exhibit 3, RPDR, NDP, Netherlands, March 14, 2014, Item 2.1. Netherlands. Country Reports on Human Rights Practices for 2013. United States. Department of State. 27 February 2014. 42 Exhibit 3, RPDR, NDP, Netherlands, March 14, 2014, Item 2.1. Netherlands. Country Reports on Human Rights Practices for 2013. United States. Department of State. 27 February 2014. 43 Exhibit 3, RPDR, NDP, Netherlands, March 14, 2014, Item 2.1. Netherlands. Country Reports on Human Rights Practices for 2013. United States. Department of State. 27 February 2014. 44 Exhibit 3, RPDR, NDP, Netherlands, March 14, 2014, Item 2.1. Netherlands. Country Reports on Human Rights Practices for 2013. United States. Department of State. 27 February 2014. 45 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94, para. 20, 24. 46 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-01518