TB6-12301

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 : TB6-12301 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 13, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis Barrister and Solicitor 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 XXXX (the "Appellant"), a citizen of the Bahamas, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his 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 alleged before the RPD that he witnessed a stabbing while working in a nightclub. The Appellant alleges that he filed a police report, identified the criminal and testified at the trial of that criminal which resulted in a conviction with an 18 year sentence for the criminal. As a result, friends or gang members of that criminal now have attempted to kill the Appellant and will attempt to do so again, should the Appellant return to the Bahamas. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on July 29, 2016. A negative decision was rendered in writing on August 18, 2016. The RPD found that the Appellant was unable to rebut the presumption of state protection for victims of crime in the Bahamas. [4] Pursuant to section 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 submits that the RPD erred: a) In the RPD's assessment of the Appellant's credibility; and b) In the RPD's analysis of state protection Admissibility of New Evidence [6] The new evidence submitted on behalf of the Appellant includes a document which purports to be a record of a statement to police regarding the alleged stabbing of May 19, 2012 and of the Appellant's visit to the police station to identify the suspect in that stabbing, on May 25, 2012. [7] The RAD must first determine whether the new evidence meets the requirements of section 110(4) of the IRPA. Could this evidence have been presented prior to the rendering of the RPD's decision and if not, why not? The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [8] The new evidence is being submitted in answer to issues brought forward at the RPD hearing wherein the panel had made findings based on the evidence adduced at the hearing; those findings were not favourable to the Appellant. The Appellant is, basically, providing the documents now which should have been before the RPD. [9] The Federal Court stated in a recent case: "I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RAD's decision indicates that it was well aware of its role, that is that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a Convention refugee or a person in need of protection. It was not open to him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination."2 [10] I will consider the newly submitted documents as follows: [11] The police report is dated May 19, 2012 and the other, 25 May 2012; therefore, they are obviously not new. However, the question now is "were these reports available to the Appellant prior to the decision of the RPD, reasonably?" [12] The Appellant has sworn that he had previously tried to contact police officials in order to obtain these same documents in time for his hearing or at least in time before the decision was rendered. The Appellant argues that he made telephone calls to the Bahamian police station and that those calls went unanswered and unreturned. What the Appellant did not apparently do was to ask a close friend or relative to personally attend the police station on the Appellant's behalf to obtain these documents. Nor did the Appellant contact the Bahamian Consular Office in Canada for assistance, both of which may have assisted him in obtaining documents in time to be of use to him at this very important hearing. He did not make a serious effort to obtain these records as he should have done. [13] The Appellant bore witness to the stabbing in 2012, yet did not leave the Bahamas until March of 2016, more than a year after he was shot by someone who allegedly was a member of the same gang as the criminal about whom the Appellant had testified. I can understand that there would be little reason for the Appellant to want or need court documents or police records prior to the shooting of April 2015; however, once the Appellant was shot and now frightened for his life, it seems reasonable to me that the Appellant, if planning on escaping the criminals by coming to Canada, would have gotten copies of any relevant documents to put forward in his claim for protection. [14] I also have major concerns about the authenticity of these documents. For example, there is no "logo" on either document, which I find to be unusual given the hundreds of police reports I have had disclosed to me over the years, every one of which had some kind of logo or official letterhead. These documents3 had nothing to identify where they were from other than a hand written "CDU" beside the typed word "STATION" and the hand written word "Homicide" beside the typed word "DIVISION". Also, on page 94, there are a number of blanks meant to be completed by the police, which are not completed. They include a space for the plaintiff's age, for his occupation, for the number of pages in the report and for the signature of the police officer taking the statement. Nowhere on any of the four pages included in these documents is there a name or contact information for the presiding constable who took the reports. For these reasons, I find that these reports are not reliable or credible. [15] Considering that I do not accept the Appellant's reason for failing to obtain these old documents in time for his RPD hearing and decision as being a reasonable explanation, I find that the documents fail the test of section 110(4) of the IRPA. Even if I were to be extremely generous in my interpretation of section 110(4) and accepted the documents into evidence, due to the strong concerns I have in regards to the credibility of these documents, I would dismiss them for those reasons. [16] Consequently, the request for submission of new documents is dismissed. [17] Although a document may pass the requirements of section 110(4), it may not be automatically admitted as evidence. Once a document is deemed to have passed the test of section 110(4), it must be assessed for relevance, and credibility. It makes no sense to admit evidence if that evidence is not relevant or credible. ANALYSIS The Role of the RAD [18] The RAD is an Appellate body governed by specific legislation4 and guided by the jurisprudence5 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.6 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [19] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.7 [20] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,8 with no deference accorded to the RPD.9 [21] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [22] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [23] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [24] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [25] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [26] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [27] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Arguments [28] The Appellant argues that the RAD should admit the new evidence. I have discussed the new evidence above and have rejected it. [29] Counsel for the Appellant (counsel) argues that the contradiction identified by the RPD in regards to the date of the stabbing witnessed by the Appellant, is "more apparent than real". Counsel argues that the RPD's question on this issue, asked over and over again, was ambiguous. The question asked was "When did you witness the stabbing?" Counsel argues that the Appellant misunderstood the question when the Appellant repeatedly answered "April 2014", when in fact the stabbing occurred in 2012. Counsel argues that the word "witness" can have two different meanings, that is "when did you witness (see) the stabbing" or "when did you witness (testify as a witness) the stabbing." I do not agree with counsel. There is a substantial difference in how those two questions would be asked of a person. In the first place, "when did you witness the stabbing?" is a clear question specifically asking "when" a person "witnessed" the event. It would be reasonable to presume that if a person wanted to know when one testified at a trial as a witness, one would clearly ask "when did you testify?" To suggest as counsel is suggesting is a great stretch of one's imagination if the misunderstanding occurred once; however, it is well beyond the balance of probabilities to believe that after being asked several times, the Appellant actually believed the panel was asking about when the Appellant testified in court. I do not concur with counsel that the RPD erred in this credibility assessment and I certainly do not agree that the question asked by the panel was in any way ambiguous. [30] Counsel argues that the panel erred by impugning the Appellant's credibility due to a lack of supporting documentation. Counsel further argues that such a finding by the panel is contrary to jurisprudence as that cited in Maldonado.10 It is correct that, generally speaking, an Appellant's testimony should not be rejected solely because of a lack of corroborative evidence; however, in the case at bar, that is not what has occurred. The RPD found other credibility issues based on contradictions and inconsistencies which impugned the Appellant's credibility. The lack of documentation added to the credibility issues already established by the RPD, including the issue noted above with the date problem regarding the stabbing. In another issue of credibility, the Appellant had testified that, after he recovered from gunshot wounds, he went to the police to ascertain the status of the investigation into who shot the Appellant. The Appellant then testified that after that initial visit, he had no contact with the police. However, in the Appellant's BOC narrative,11 he had implied that he had looked at a lineup at the police station sometime later, from which he identified one of the shooters from the Appellant's assault. When asked about this contradiction, the Appellant testified that he just got mixed up. I find that to be unreasonable when one considers the importance of such a line up and subsequent identification of a man who shot you in the face as was the case here. [31] In the case at bar, the RPD looked at the totality of the evidence in order to arrive at its credibility assessment. I concur with the RPD and I find that the RPD did not err in its overall assessment of the credibility of this Appellant. [32] Counsel argues that the panel erred in its assessment of state protection in the Bahamas. [33] I must look at the issue of state protection from the standpoint of section 97 of the IRPA, as there is no nexus to section 96. In order to have a nexus to section 96, the Appellant must fall into one of the five grounds for Convention refugee protection. Those grounds are 1) race, 2) nationality, 3) Religion, 4) Membership in a particular social group and 5) political opinion. The core of this claim/appeal is based on criminality which has no nexus to the convention. [34] In order to be successful in a section 97 claim/appeal, the Appellant must be a person in need of protection according to the following: 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [35] Having considered the conditions of section 97(b), and giving the Appellant a major benefit of the doubt, I will resume my analysis to analyze the Appellant's applicability under section 97 and then state protection if the Appellant's risk factors do fall under section 97. [36] Counsel argues that state protection in the Bahamas is inadequate and refers to the documents12 before the RPD which speak to the many issues of violence and human rights abuses in the Bahamas. For example, the homicide rate in the Bahamas has risen 25 percent in 2015 over 2014, with overall homicide rates up twofold over the last ten years. The problem for this Appellant is the generalized risk of becoming a victim of crime, in Bahamas is very high. According to the Board's own documentation,13 crime in general, including violent crimes of the nature alleged by the Appellant are a major concern throughout the Bahamas and for everyone. [37] One report in that document reads as follows: Crime Threats Armed robberies, property theft, purse snatchings and general theft of personal property remain the most common crimes perpetrated against tourists. Home break-ins, theft, and robbery are not confined to any specific part of The Bahamas. The upsurge in criminal activity has also led to incidents that could place innocent bystanders at risk. Criminality on Grand Bahama has increased, notably crimes involving the use of machetes. Many criminals in The Bahamas carry firearms, machetes, or knives. In 2014, there was an increase of reported armed robberies using a knife and gun where the assailant assaulted the victim after the victim fought back and resisted. Many of these armed robberies were snatch-and-grabs involving purses, jewelry, and gold necklaces or home invasions. [38] I also find that the risks feared by the Appellant has no nexus to the Convention as they are risks generally faced by most other citizens in the Bahamas. [39] The harm feared by the Appellant does not amount to persecution or to a personalized risk to his life or to a risk to cruel and unusual treatment or punishment or to a danger of torture. The courts have expressed the view that consideration of an application under section 97(1)(b)(ii) of the Act requires a personalized review in the context of the actual and potential risks to which the claimant is subject. In cases like this, where the general public is subject to the risk of crime, the fact that some individuals are more exposed to the risk because they live in more dangerous areas or because they are perceived as being wealthier, does not necessarily make them persons in need of protection. A person who is a direct victim of crime is not automatically a person in need of protection within the meaning of section 97 of the Act.14 [40] I find that the claimant is a victim of criminals and has been threatened with physical harm and perhaps even death, but this is one of the crimes which occurs in the Bahamas and not specific to the Appellant. There was no persuasive evidence before me that the Appellant was targeted for any other reason than that he witnessed a crime and is being threatened out of revenge or a vendetta. The RPD and the RAD do not have a specific legal mandate that extends its protection to persons such as this Appellant. I find the Appellant's fear is a generalized one. The Court sees nothing in section 97(1)(b)(ii) that requires the Board to interpret "generally" as applying to all citizens. "The word "generally" is commonly used to mean "prevalent" or "widespread"."15 [41] I have reviewed the jurisprudence relating to generalized risk, and in this connection, I considered the case of Vickram,16 a businessman of Indo-Guyanese origin, who was threatened, beaten and harassed repeatedly by a group of black bandits in Guyana, and was determined to have been victimized due to his profile of belonging to a wealthy business family. The Federal Court upheld the Board's determination that the risk faced by that claimant17 was criminal activity and was no greater than that faced by the population at large, and that the perception of wealth does not constitute a particularized risk under section 97. As well, in the case of Prophète,18 it was determined that the risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming victims of violence. The Board's determination in that case was upheld by both the Federal Court and the Federal Court of Appeal.19 In the case of Innocent,20 a small store operator in Haiti who was victimized repeatedly by criminals, the Federal Court held that in cases where the general public is subject to the risk of crime, the fact that some individuals are more exposed to the risk because they are perceived as being wealthier, does not necessarily make them persons in need of protection. In Rodriguez,21 the principal claimant and his brother, citizens of Guatemala, claimed protection because of fear of the mara gang who were extorting them for money in connection with their grocery store. While their case differs from the present case, I am of the view that if the risk to violence or injury or crime is a generalized risk faced by all citizens of the Bahamas, the fact that a specific number of individuals may be targeted more frequently, does not mean that they are not subject to a "generalized risk" of violence. The fact that they share the same risk as other persons similarly situated does not make their risk a "personalized risk" subject to protection under section 97. [42] I find, consequently, that on a balance of probabilities, the risk with which the Appellant is faced is generalized and one which is faced generally by the population of the Bahamas. Based on the particular facts of this case, I am not satisfied that the Appellant faced a particularized risk of harm in accordance with section 97 of the IRPA. The risk faced by the Appellant is generalized rather than personalized risk, which falls under the paragraph 97(1)(b) exception. [43] As the Appellant fails to qualify for section 97 consideration, there is no requirement for the RAD to further analyze state protection. However, in the alternative, should the Courts disagree with me on the above, I will conduct an independent analysis of state protection in the Bahamas. [44] What does jurisprudence tell me is required to find that a state has adequate state protection? Following is a list of some of the relevant principles of state protection as decided by the courts. [45] No state can guarantee perfect protection. (Zalzali,22 Villafranca,23 Milev24) [46] Local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of state inability or refusal to provide protection. (Zhuravlvev25) [47] 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,26 Gallo Farias,27 Torales Bolanos28) [48] While the effectiveness of the protection is a relevant consideration, as protection must have a certain degree of effectiveness (Perez Burgos,29 Quinatzin30), 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,31 Mendez,32 Samuel,33 Cuevas Sandoval,34 Hernandez Gonzalez,35 Sanchez,36 Velasquez,37 Valerio Cueto,38 Cosgun,39 Flores Campos,40 Zupko,41 Lopez Gonzalez,42 Salvagno43) [49] As noted earlier, the protection need not be perfect. (Zalzali44) 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, 45 Lopez Gea,46 Atriano Saldana,47 Sanchez,48 Zupko49) However, some Federal Court decisions have rejected it (Lopez,50 Valencia Pena,51 Koky52) or have qualified its use, as not being co-extensive with adequacy of state protection. (Cina,53 Velazquez,54 Williams55) [50] 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,56 Torres,57 Wisdom-Hall58) A state must engage in serious efforts to protect its citizens at the operational level. (Velazquez,59 Williams60) [51] 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. (Manorath61) [52] In this particular case, the Appellant has provided proof that state protection is available. The Appellant has testified that in 2012 he witnessed a stabbing. The police were called in to investigate and as a result, arrested, detained and charged a man with the stabbing. The Court tried the man and convicted him of murder, sentencing the man to eighteen years in prison. The penal system has locked this man away for eighteen years. [53] The Appellant has also testified that he was shot, multiple times. The police were called in to investigate resulting in the arrest of a man. The police conducted a line up identification with the Appellant being given the opportunity to identify his assailant from the line-up, which the Appellant did. The suspect was arrested. The final results of that arrest are unknown because the Appellant left the country before the case went to trial. [54] These two cases show that the justice system, which provides protection, worked. These cases illustrate that the state is willing and able to protect its citizens effectively by investigating, apprehending and convicting criminals. [55] The Appellant testified that he feared reporting the criminals to police, originally because there were police personnel in attendance at the party where the criminals were. This would constitute at best a local failure which does not amount to a failure of state protection. [56] I acknowledge that the Appellant has provided documents such as an article from "The Tribune" dated December 2015 in which the author speaks about some "bad apples in the ranks of the police force". As well as another Tribune article, dated 12 March 2013 in which a young man paints his view of corruption in the ranks of police officers but each of these speaks to localized failures, not systemic collapse of the police department. Other articles disclosed by the Appellant include a number of articles speaking to the issue of crime in the Bahamas. I readily acknowledge that the Bahamas is suffering from a national crime crisis in which all citizens including the Appellant are possible victims of that crime. [57] However, documents found in the National Documentation Package clearly indicate that the Bahamas has issues with the police where the police have used excessive force on suspects as well as issues with the judicial system where there are long delays in trial, a backlog of cases, a low conviction rate and more. These are issues for certain; however, the jurisprudence does not require state protection to be perfect, it requires it to be adequate. I find, based on the apprehension and conviction of the murderer in the case witnessed by the Appellant and the apprehension of the criminal who shot the Appellant, that state protection in the Bahamas is adequate and effective. I find that the Appellant has failed to rebut the presumption of state protection in a democracy. Disposition [58] The RAD has found that the RPD decision will stand. CONCLUSION [59] Pursuant to section 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 December 13, 2016 Date 1 Exhibit P-2, Appellant's Record at pages 26 - 37. 2 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15), Gleeson, January 8, 2016, 2016 FC 26. 3 Exhibit P-2, Appellant's Record, pages 92 - 94. 4 Immigration and Refugee Protection Act (IRPA). 5 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 6 Dhillon, paras. 14 - 18. 7 Huruglica, para. 103. 8 Ibid. 9 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 10 Maldonado v. Canada (Minister of Employment and Immigration) (1980) F.C., 302 (C.A.). 11 Exhibit P-2, Appellant's Record, BOC narrative, para. 6. 12 Exhibit P-2, Appellant's Record, pages 80 - 84. 13 Exhibit P-2, National Documentation Package for Bahamas (NDP), 13 May 2016, item 7.2. 14 Innocent, Philomena v. M.C.I. (F.C. no. IMM-541-09), Mainville, October 8, 2009, 2009 FC 1019. 15 Osorio, Henry Mauricio Gil v. M.C.I. (F.C., no. IMM-585-05), Snider, October 27, 2005, 2005 FC 1459. 16 Vickram, Safraz v. M.C.I. (F.C. no. IMM-3632-06), de Montigny, April 30, 2007, 2007 FC 457. 17 Ibid. 18 Prophète, Ralph v. M.C.I. (F.C., no. IMM-3077-07), Tremblay-Lamer, March 12, 2008, 2008 FC 331. 19 Prophète, Ralph v. M.C.I. (F.C.A., no. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. 20 Innocent, 2009 FC 1019. 21 Rodriguez Perez, Henry Sotero v. M.C.I. (F.C., no. IMM-646-09), Kelen, October 14, 2009, 2009 FC 1029. 22 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.), at 615. 23 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 132. 24 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 25 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000, [2000] 4 F.C. 3 (T.D.). 26 Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no. IMM-7329-04), Phelan, July 29, 2005, 2005 FC 1050. 27 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. 28 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. 29 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." 30 Quinatzin, Aguilar Gutierrez v. M.C.I. (F.C., no. IMM-1907-07), O'Keefe, August 12, 2008, 2008 FC 937. 31 Flores, Nubia Victoria Suarez v. M.C.I. (F.C., no. IMM-4613-07), Mosley, June 9, 2008, 2008 FC 723. 32 Mendez, Luis Arceo v. M.C.I. (F.C., no. IMM-4439-07), Mosley, May 7, 2008, 2008 FC 584. 33 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 ..." 34 Cuevas Sandoval, Dora Luz v. M.C.I. (F.C., no. IMM-5394-07), Zinn, July 14, 2008, 2008 FC 868. 35 Hernandez Gonzalez, Karla Del Carmen v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008, 2008 FC 1259. 36 Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008, 2008 FC 1336. 37 Velasquez, Ventura Sarai Batres v. M.C.I. (F.C., no. IMM-2299-08), de Montigny, February 2, 2009, 2009 FC 109. 38 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." 39 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. 40 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". 41 Zupko, Robert v. M.C.I. (F.C., IMM-2091-10), Snider, December 22, 2010, 2010 FC 1319. 42 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. 43 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. 44 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.). 45 Reyes Montalvo, Emmanuel v. M.C.I. (F.C., no. IMM-4703-07), Tremblay-Lamer, June 9, 2008, 2008 FC 716. 46 Lopez Gea, Luz Alicia v. M.C.I. (F.C., no. IMM-5160-07), Lagacé, June 17, 2008, 2008 FC 750. 47 Atriano Saldana, Pilar v. M.C.I. (F.C., no. IMM-5503-07), Dawson, September 30, 2008, 2008 FC 1092. 48 Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008, 2008 FC 1336. 49 Zupko, Robert v. M.C.I. (F.C., IMM-2091-09), Snider, December 22, 2010, 2010 FC 1319. 50 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." 51 Valencia Pena, Juana Lourdes v. M.C.I. (F.C., no. IMM-4907-10), Rennie, March 17, 2011, 2011 FC 326. 52 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." 53 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. 54 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." 55 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." 56 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999. 57 Torres, Betsabe Del Carmen Balmaceda v. M.C.I. (F.C., no. IMM-2009-04), Pinard, May 10, 2005, 2005 FC 660. 58 Wisdom-Hall, Tanesha v. M.C.I. (F.C., no. IMM-4581-07), Hughes, May 28, 2008, 2008 FC 685. 59 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." 60 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." 61 Manorath, Rahonie v. M.C.I. (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-12301