TB6-15666

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 : TB6-15666 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 May 25, 2017 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX 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 minor, a citizen of the Republic of Uganda (Uganda), is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination. The Appellant submits no new evidence; she does not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. Background [3] The Appellant alleges that her mother is lesbian. Her mother began relationships with women in 1994. The Appellant's mother married XXXX in 1997 at the insistence of her family. In 2006, the minor Appellant's mother met a man named XXXX (XXXX). Their relationship resulted in the birth of the Appellant in 2008. [4] In 2015, XXXX discovered photographs of the Appellant's mother in intimate poses with another woman. As a result, he assaulted the Appellant's mother. The landlord offered to telephone the police to report XXXX but the Appellant's mother feared that her sexual orientation would be discovered. XXXX returned a few hours later and threatened to kill the Appellant and her mother. [5] The Appellant and her mother arrived in Canada on XXXX XXXX XXXX 2016 and made claims for refugee protection on August 8, 2016. [6] The Appellant and her mother had a refugee determination hearing on September 30, 2016. In an oral decision issued the same day, the RPD accepted the claim of the Appellant's mother but rejected the claim of the Appellant. The RPD found that there were no allegations of the Appellant being lesbian or being a member of the lesbian community. The RPD found that the presumption of state protection had not been rebutted for the Appellant. [7] Appeal pleadings were received on January 31, 2017. The Appellant argues that the RPD erred in fact and law in its assessment of state protection. ROLE OF THE RAD: [8] As the Appellant submits, the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [9] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE EVIDENCE State Protection [10] The RPD found that the threats against the Appellant were made in the heat of the moment and that there was insufficient evidence from which to conclude the degree to which XXXX would have intentions to hurt the Appellant. The RPD found that it was reasonable that the Appellant's mother did not bring the matter to the attention of the police. However, the RPD found that when the question was put to the Appellant's mother as to why family or friends did not attempt to obtain the assistance of the police and whether the police would have investigated, the Appellant's mother did not provide a reasonable explanation. [11] The RPD referred to the independent documentary evidence which indicates that information regarding the structure of the Ugandan police is provided and that a child and family unit exists which deals specifically with child and family matters. The RPD noted that the police have increased their militarization and expanded from 27,000 to 48,000 during the time period between 2006 and 2007. The RPD also noted that objective evidence indicates domestic violence against spouses is a great challenge to the Ugandan authorities and that the police budget for gender-based violence was about $8.7 million (US) in 2011. [12] The RPD noted objective evidence with regards to the lack of professionalism of and complaints of inadequacy of the police. [13] The RPD found that the onus was on the Appellant's mother to establish that state protection was not adequate for the Appellant. The RPD found that states are presumed to be able and willing to protect its citizens. The RPD found that while the Appellant's mother could not expect protection from the state, the question of whether the eight-year-old Appellant could benefit from state protection was quite different. The RPD found that the Appellant's mother had not adequately rebutted the presumption that the police would respond to threats made against the Appellant. [14] The Appellant submits that it was incumbent on the RPD to assess her personal circumstances as an eight-year-old child who would return to Uganda without her mother or a guardian. The Appellant submits that she would be at the mercy of XXXX and would not be able to access state protection. The Appellant further submits that there is a the risk to her not merely because she might be directly and intentionally targeted by XXXX but she might well suffer persecution as a result of the targeting of her mother by XXXX or the Ugandan police. [15] The Appellant submits that the RPD failed to heed the teachings found in the case of Kim where the Honourable Mr. Justice Shore of the Federal Court stated: In addition to recognizing the right of children, the RPD should also be aware of the particular vulnerabilities of children when assessing whether particular acts amount to "persecution" of a child. The Preamble to the CRC (Conventions on the Rights of the Child) states "[b]earing in mind that, as indicated in the Declaration of the Rights of the Child, 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth'". Since the CRC recognizes the vulnerabilities of children, it is appropriate for the RPD to consider their physical and mental development when assessing whether the harm feared by a claimant amounts to persecution. Children, because of their distinct vulnerabilities, may be persecuted in ways that would not amount to persecution of an adult. It is incumbent on the RPD to be empathetic to a child's physical and mental state and to be aware of the fact that harming a child may have greater consequences than harming an adult.2 [16] The RAD acknowledges the deference it should show to the RPD's finding but nonetheless finds it cannot recognize and respect it in this case. The RAD finds that the Appellant's submissions have merit. [17] The RAD finds that the RPD failed to consider the personal circumstance of the Appellant, an eight-year-old girl. One must ask, "What difference would it have made if a family member or friend had reported the threats of XXXX to the police?" The RAD finds that no attention was paid to what would have been the practical significance of such interactions with the police. One may speculate that if and when the police interviewed XXXX, the sexual orientation of the Appellant's mother would have been revealed, leaving the Appellant in the position with a mother at risk from the authorities and a father who, according to the evidence, did not want her. No consideration was given as to who would act as a guardian for the Appellant upon her return to Uganda. According to information in the Basis of Claim (BOC) form narrative3 of the Appellant's mother, the majority of the mother's family members were against her because of her sexual orientation. According to the recording of the hearing, the Appellant's mother provided similar testimony. There was no evidence provided that any friend or family member was willing and able to act as the guardian for the Appellant. [18] The RAD depends upon the jurisprudence in Majoros where the Honourable Mr. Justice Zinn stated the following: [W]hether a claimant has sought, or diligently sought the state's protection is - properly speaking - not a legal requirement for refugee protection. That legal error - which is to place a legal burden of seeking state protection on a refugee claimant - is unreasonable and itself sufficient to warrant granting this application.4 [19] In the case of Majoros, the claimants feared seeking protection because of serious threats from a widespread, right-wing, skinhead movement. In the case at hand, a fear of possible negative repercussions on the Appellant was a reasonable reason for not seeking state protection. In the case of Majoros, the Court stated the following: Thus, the legal issue was whether the applicants were unable to avail themselves of Hungary's protection.5 [20] While the RPD identified the structure of the Ugandan police force, which includes a family and child unit, and the monetary expenditure of the police on gender violence issues, the RAD finds that the RPD failed to address the applicability and the effectiveness of these programs and financial investments particularly as they relate to a child of a lesbian mother. [21] The RAD, thus, finds that there is no adequate state protection for the Appellant in Uganda. CONCLUSION [22] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. [23] This appeal is allowed. (signed) "Lesley Mason" Lesley Mason May 25, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Kim, Jae Wook v. M.C.I. (F.C., no. IMM-4200-09), Shore, February 12, 2010, 2010 FC 149. 3 Exhibit RPD-1, RPD Record, pp. 22-42. 4 Majoros, Lajos v. M.C.I. (F.C., no. IMM-7541-12), Zinn, April 24, 2013, 2013 FC 421. 5 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-15666