TB6-01693

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 : TB6-01693 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 18, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Preevanda K Sapru 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), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of this appeal. 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. [2] 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. Background [3] The Appellant alleged before the RPD that she fears the family of her former common-law partner, XXXX, because XXXX family blames the Appellant for XXXX suicide. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 amended narrative and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on December 7, 2015. A negative decision was rendered in writing on January 4, 2016. The RPD found that the Appellant was unable to establish his claim on the basis of credible and trustworthy evidence. The RPD found that the Appellant had failed to rebut the presumption of state protection in Jamaica. The RPD also found that an internal flight alternative (IFA) existed in either Kingston or Montego Bay. [5] The Appellant submits that the RPD erred in unfairly discrediting the Appellant's clear and consistent testimony, and by making findings that are not supported by the record. [6] The Appellant submits that the RPD erred in it assessment of state protection. [7] The Appellant submits that the RPD erred when it ignored the preponderance of evidence corroborating the Appellant's fear of returning to Jamaica. [8] The Appellant submits that the RPD erred in its finding on IFA. ANALYSIS Role of the RAD [9] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,2 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. The Appellant justices stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.... [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [10] With respect to findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. [11] 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 RPD's Findings [12] The Appellant argues that the RPD erred by unfairly discrediting the Appellant's clear and consistent testimony and by making findings that are not supported by the record. The Appellant argues that the RPD erred when it found that none of the letters3 of support disclosed stated what the actual threats against the Appellant were. The Appellant disputes that finding and quotes the letter from XXXX XXXX in which XXXX writes that the threat was "if XXXX XXXX dies she won't be far behind". Contrary to the Appellant's argument, however, the other letters do not substantiate any death threats. The letter from XXXX XXXX says only that "subsequently her life was in danger", without explaining how it was in danger. The letter from XXXX XXXX says only "they threatened her" but did not elaborate on the threats. The letter from the Appellant's mother had no threats in it but only said that XXXX family said that "XXXX should no kill himself alone, he should kill all XXXX family with himself". Although not nice, this is not a threat but a statement. Even the one letter which actually spoke of a threat does not lend much weight to an actual threat to the Appellant's life. An angry and upset family member of a man who is about to die says some nasty remarks to a scapegoat. There has been insufficient evidence adduced which would substantiate an actual attempt or intent to do harm to the Appellant by this family. The RAD finds that these letters are not clear and convincing evidence of a real threat to the Appellant. [13] The Appellant argues that the RPD misinterpreted evidence and testimony when the RPD decided that XXXX family wanted only for the Appellant to leave XXXX XXXX. The Appellant argues that nowhere has the Appellant testified or written that she was told to leave XXXX XXXX, however, counsel for the Appellant is playing with words in this instance. On many occasions, the Appellant has testified or written that XXXX family constantly told the Appellant that she should go back to where she came from, which is the town of XXXX, outside of XXXX XXXX XXXX. The Appellant testified4 that she was told "go back to XXXX". Further, the Appellant testified that XXXX always said "go back to where you came from (XXXX)". The Appellant testified that XXXX family knew she was from XXXX and whenever she and XXXX would have a fight, she was told to go back to where she came from. Again, as XXXX is obviously and clearly "out of XXXX XXXX", the RAD finds that in this case, the RPD did not misinterpret testimonial evidence. [14] Wealth is a matter of perspective. The Appellant argues that the RPD misinterpreted her testimony or disregarded her testimony in regards to the wealth of XXXX family. The wealth matters as, if there is wealth, that wealth may give the family the capacity to find the Appellant in the IFA, should the family be interested in doing so. The panel continually asked for evidence beyond the Appellant's testimony which would substantiate her claim that the family was wealthy and influential. Insufficient evidence was forthcoming. As previously stated, wealth is a matter of perspective and from the perspective of the Appellant, XXXX family may appear to be wealthy. In reality, if the family was as wealthy and well known as is suggested by the Appellant in her testimony, it should not be difficult to produce some evidence to support that. Wealthy and well-known families make the news. Internet searches should bring up something about the family, but the RAD has tried unsuccessfully to find anything related to a family of modern times in XXXX XXXX XXXX, Jamaica with the surname of XXXX. It would be logical to expect that a family purported to be wealthy and well-known in a relatively small area would somehow have a presence on the World Wide Web or through new or old print articles or in other media. Counsel for the Appellant writes in his Memorandum5 that the Appellant did provide documentary evidence, however, counsel fails to direct the RAD to that evidence and the RAD was unable to locate anything in the file which it would consider as supporting evidence. Counsel asks at this point in his Memorandum that the RAD "convoke a hearing in this case". As no new evidence has been introduced and accepted in this appeal, the RAD may not hold a hearing.6 As insufficient evidence was adduced to support the allegation of wealth of XXXX family, the RAD finds that the RPD did not err in its finding on this issue. [15] The Appellant submits that the RPD erred in it assessment of state protection. Counsel has disclosed in excess of 100 pages of articles and other documents which speak to the issue of crime in Jamaica. The RAD, after doing its own and independent assessment of these documents and of the National Documentation Package for Jamaica, agrees with the Appellant that there is a concern regarding crime, in general, in Jamaica. In fact, the latest statistics available at the time of the hearing indicate that there were over 7,000 serious crimes reported, in Jamaica in 2012. These crimes included shootings (978), rape (698), other sex offenses (644), robbery (2,167), break-ins (2,538) and larceny (570).7 In the Appellant's disclosures, the RAD finds many acts of violence chronicled in the local papers but also finds evidence of state protection therein. For example, an article in "The Gleaner"8 speaks to a murdered woman in Mandeville and iterates how two policemen and two others implicated had already been arrested. The article does speak to a frightening trend of people hiring contract killers to rid themselves of unwanted family members and others. It is neither required nor expected for the RPD or the RAD to comment on every piece of evidence disclosed, however, attention should be paid and spoken to on evidence of greater probative value. The Appellant has submitted articles such as one by the "Observer"9 which speaks about a murder connected to a family feud. The point is that there is no doubt that violence, including murder, is a problem in Jamaica. This is a general risk for all persons in Jamaica and is not specific to this Appellant. The Appellant was threatened by a bereaving member of XXXX family. The Appellant was often told that she should "go back to where she is from". The Appellant's continuous presence in XXXX XXXX obviously angered some of XXXX surviving family members to the point where at least one threatened the Appellant that if XXXX died, the Appellant would soon follow him. The Appellant failed to report the threat to any police officer or department. [16] An Appellant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. (Judge,10 Kim,11 Camacho12) [17] Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection. (Rio Ramirez13) Obligation to approach state authorities [18] An Appellant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. (Ward14) However, a claimant is not required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. (Ward15) [19] Bearing the above principles in mind, the RAD notes that the Appellant never gave the state the opportunity to offer her protection. There is no evidence adduced that would suggest that going to the police for help would be a risk to the Appellant's life. Therefore before seeking protection on an international level, the Appellant should have first sought protection in Jamaica, if she truly feared for her life. [20] In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim. (Camacho16) This is so even where the protective services of the state have gaps or deficiencies. (Salazar Santos17) It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system. (Marquez Alvarez18, Romero Castaneda19) [21] An Appellant must show that he or she has taken all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken and the claimant's interactions with the authorities. (Peralta20). In this particular case, the Appellant took no steps at all to seek protection. [22] No state can guarantee perfect protection. (Zalzali,21 Villafranca,22 Milev23) [23] 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. (Zhuravlvev24) [24] 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,25 Gallo Farias,26 Torales Bolanos27) [25] While the effectiveness of the protection is a relevant consideration , as protection must have a certain degree of effectiveness (Perez Burgos,28 Quinatzin29), 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,30 Mendez,31 Samuel,32 Cuevas Sandoval,33 Hernandez Gonzalez,34 Sanchez,35 Velasquez,36 Valerio Cueto,37 Cosgun,38 Flores Campos,39 Zupko,40 Lopez Gonzalez,41 Salvagno42) [26] In Jamaica, there are issues on ocassion with the effectiveness and the adequacy of state protection, but these may be localized failures which do not necessarily mean that there is a general problem of failure. The Appellant testified that her only interaction with police, ever, would ocur when someone at the bar in which she worked would call for police for any number of possible reasons, and the police would not show up. This does not amount to past contact with the police and as a matter of record43 the Appellant testified that she had never gone to the police. Council, in his Memorandum, reports that the Appellant misunderstood the question from the panel when asked whther she had ever gone to the police. Counsel writes about how others had phoned the police and the police never showed up, and about the Appellant's mother, who many years earlier reported to police regarding domestic abuse and received no help. Neither of these incidents is relative to the Appellant's. In the first instance, an unidentified person or persons allegedly called police, sometime, over a bar fight and allegedly, no police showed up. There is no supporting evidence of this allegation and it is too non specific to be of any probative value. In regards to the second event, according to the Appellant's affidavit,44 her mother reported the domestic abuse, which occured almost 20 years ago, after the Appellant left her. An incident of this nature happening a generation earlier is insufficient reason to prevent someone from seeking protection today. [27] The RAD, having reviewed the documentary evidence and the Appellant's testimony, finds that the Appellant has failed to rebut the existance of state protection. However, in the alternative, the RAD will deal with the Appellant's issues in regard to an IFA. [28] The Appellant argues that the RPD erred in its finding that a viable IFA exists for the Appellant in Jamaica. The Appellant argues that the panel breached the principals laid out in cases such as Maldonado and Lachowski45 when the panel doubted the veracity of the Appellant's testimony without valid reason. The RAD does not agree with the Appellant, however, will take the initiative and explain the issue with the Appellant's testimony (in regards to the desire and ability for XXXX family to seek and find the Appellant in the proposed IFA). [29] There are times when a statement just does not make sense, and it is not a credible statement. Jamaica is an island of about three million (3,000,000) people with an area of almost 10,000 square kilometers and a coastline of over 1,000 kilometers. Only 9% of the population subscribe to a telephone service. In these conditions, the Appellant testified that XXXX family will have the means to find her in Kingston or Montego Bay. This statement is not, on its own, believeable, because Kingston, Jamaica alone has over 579,000 people to "hide" amongst (if one needed to hide). But more importantly, if the Appellant had simply left XXXX XXXX as XXXX family kept demanding (go back where you came from), it is not plausible that the family would have any idea where to look for her. Does she leave and move to Negril, or to Montego Bay, Ocho Rios, Kingston, or Runaway Bay? It is for these reasons that the RPD and now the RAD cannot simply accept the testimony of the Appellant that "they would find me" as being credible. To seach an entire country, even a small one, and through three million people, would require resources beyond the capacity of an average person, which is why the RAD was looking for any supporting documentation of the alleged wealth and influence of XXXX family. Not even the Appellant was able to produce any such supporting documentation. As it says in Maldonado, The RAD gives the benefit of the doubt (presuming sworn testimony to be true) whenever logical, however, in the case at bar, the answers just simply are not credible and therefore require supporting documentation, none of which is adduced. The Appellant argues that the panel referred to certain documentary evidence which supports the safety aspect of the proposed IFA while taking said evidence out of context. However, the Appellant fails to direct the RAD to specifically which references and documents it is she is referring to, which leaves the RAD with no choice on this issue. It is not the duty of the RAD to make the Appellant's case for her. If the Appellant disputes a particular fact then the onus is on her to direct the RAD to the specific issue. Unfortunately, the Appellant has failed to do this, so the RAD must respectfully dismiss this particular issue with the IFA. [30] The RAD has analysed the IFA in respect to a late 30's woman, with or without a child. The Appellant can speak English, so is able to work in a tourist area or in a position which deals with the public. The Appellant has experience in tending a bar, which is another asset for living within a tourist area or in any large city. Both Kingston and Montego Bay offer many employment opportunities with a booming tourist trade, especially in Montego Bay. Both cities offer health facilties, police facilities, schools and all of the usual amenities of a city. [31] Both cities are accessible by air, sea and road. Neither is isolated nor would living in either bring hardship to the Appellant. In spite of the Appellant's arguement that she has no support (family or friends) in either city, these are viable IFAs. A lack of family or friends does not negate a particular place as an IFA. [32] The RAD has found that the Appellant's fear of being found in the IFA has no objective basis. There is insufficient evidence adduced to convince the RAD that XXXX family would have the capacity to locate the Appellant in either IFA. Furthermore, as previously spoken to, the RAD sees no motive for driving XXXX family to search everywhere for the Appellant, so long as she departs XXXX XXXX. The Appellant argues that the family seeks revenge on her for taking money from XXXX bank acocunt. The Appellant took about XXXX XXXX XXXX Jamaican dollars (XXXX XXXX CAD) while XXXX was alive, to care for XXXX child. This was a bank account on which the Appellant's name appeared, giving her complete access to the account. Further, the Appellant testified that she offered to pay back the money if the family wanted her to do so. The RAD notes that there appeared to be no response from the family regarding the money, which leads the RAD to believe that the money may have been an irritant, but not a motive for murder. Again, the RAD points out to the Appellant's own testimony and evidence which at various times clearly says that the family most frequently told the Appellant "get out of town." Should the Appellant return to Jamaica and move to Kingston, how would XXXX family know the Appellant was even back in Jamaica, yet alone in Kingston. It is not credible that they would know, but if they somehow did know, the Appellant could simply go to the police for assistance. The RAD finds that an IFA exists. As the RAD has found that a viable IFA exists in Jamaica, as does state protection, both of which are determinable, this appeal must fail. Disposition [33] The RAD has found that the RPD decision will stand. CONCLUSION [34] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe May 18, 2016 Date 1 Exhibit P-2, Appellant's Record, pp. 52-61. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, pp. 91-95 4 Exhibit P-2, Appellant's Record, Hearing Transcript, p. 263. 5 Exhibit P-2, Appellant's Record, Memorandum, p. 300, para 39. 6 IRPA section 110 (6) 7 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Jamaica (July 17, 2015), 7.3 at 1.2. 8 Exhibit P-2, Appellant's Record, pp. 101-102. 9 Exhibit P-2, Appellant's Record, pp. 115-116. 10 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089. 11 Kim, Eun Mee v.M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005; 2005 FC 1126. 12 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 13 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 14 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724. 15 Ibid. 16 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 17 Santos, Marco Antonio Salazar v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 18 Alvarez, Guillermo Marquez v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010, 2010 FC 197. 19 Castaneda, Manuel Alejandro Romero v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010, 2010 FC 393. 20 Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002; 2002 FCT 989. 21 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.); (1991), 14 Imm. L.R. (2d) 81; 126 N.R. 126 (F.C.A.), at 615. 22 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. 23 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 24 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 25 Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no. IMM-7329-04), Phelan, July 29, 2005; 2005 FC 1050. 26 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: Canseco, Diana Elizabeth Navarro v. M.C.I. (F.C., no. IMM-1567-06), Layden-Stevenson, January 24, 2007, 2007 FC 73; Martinez, Luis Amado Contreras 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 Canseco, the Federal Court held that the Gender Guidelines do not necessarily absolve claimants from seeking the protection of the state. 27 Bolanos, Magaly Torales 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. 28 Burgos, Gerson Alejandr Perez 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." 29 Quinatzin, Aguilar Gutierrez v. M.C.I. (F.C., no. IMM-1907-07), O'Keefe, August 12, 2008, 2008 FC 937. 30 Flores, Nubia Victoria Suarez v. M.C.I. (F.C., no. IMM-4613-07), Mosley, June 9, 2008, 2008 FC 723. 31 Mendez, Luis Arceo v. M.C.I. (F.C., no. IMM-4439-07), Mosley, May 7, 2008; 2008 FC 584. 32 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 ..." 33 Sandoval, Dora Luz Cuevas v. M.C.I. (F.C., no. IMM-5394-07), Zinn, July 14, 2008, 2008 FC 868. 34 Gonzalez, Karla del Carmen Hernandez v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008, 2008 FC 1259. 35 Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008; 2008 FC 1336. 36 Velasquez, Ventura Sarai Batres v. M.C.I. (F.C., no. IMM-2299-08), de Montigny, February 2, 2009; 2009 FC 109. 37 Cueto, Artemio Valerio 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." 38 Cosgun, Kiraz v. M.C.I. (F.C., nos. IMM-4648-09, IMM-4649-09), Crampton, April 14, 2010, 2010 FC 400. See also Rivadeneyra, Blanca Garcia v. M.C.I. (F.C., no. IMM-4710-09), Crampton, August 25, 2010, 2010 FC 845. 39 Campos, Gabriela De Las Flores v. M.C.I. (F.C., no. 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". 40 Zupko, Robert v. M.C.I. (F.C., no. IMM-2091-10), Snider, December 22, 2010, 2010 FC 1319. 41 Gonzalez, Jaqueline Lopez 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. 42 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. 43 Exhibit P-2, Appellant's Record, Transcript of hearing, p. 261. 44 Exhibit P-2, Appellant's Record, p. 22. 45 Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 220 (F.C.T.D.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01693