TB5-04066

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-04066 TB5-04067 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 26, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ronald Ramkissoon 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 (Appellant) and XXXX XXXX (second Appellant), are citizens of Trinidad and Tobago. They appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellants are Convention refugees or a person in need of protection. In the alternative, the Appellants request that the RAD refer the matter back to the RPD with a differently constituted panel. The Appellants have not submitted new evidence in support of their appeal. DETERMINATION [2] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that In XXXX 2010, the Appellants' mother became friends with XXXX. Their relationship progressed into a romantic one. XXXX moved in with the Appellants in XXXX 2011 and he took responsibility for the household expenses. [4] In XXXX 2011, XXXX became verbally abusive toward the Appellants' mother. He would frequently apologize and explain that his anger was a result of problems at work. However, over time he became physically abusive toward the principal Appellant. [5] XXXX sent the Appellants on a holiday to Canada in XXXX 2012 and when they returned to their home, they found that XXXX had friends staying at their house. In cleaning the home, condoms, alcohol, marijuana as well as an unidentified white substance were found in the bathroom. When the Appellants' mother questioned XXXX about the condition of the home, he beat her and forced her outside where he removed all of her clothing, threw it in the yard with other items and set fire to them. The Appellants were forced to watch this and neighbours also witnessed the event. XXXX dared them to call the police. Later that evening, he beat and raped the Appellants' mother. He then put a gun to her head and threatened to kill her and her family if she told anyone about this. The physical and verbal abuse continued. [6] XXXX worked as a senior customs officer. The Appellants began to believe he was corrupt and involved in illegal activities as strange people frequented their house, packages were delivered to the home and people often asked for money. Rumors also spread about XXXX and the Appellants in the community and the Appellants were humiliated. [7] The Appellants' mother tried to leave on one occasion in XXXX 2012 but XXXX found them and after threatening the Appellants' mother, she was forced to return to his home. [8] At XXXX in 2012, XXXX had friends over and they became intoxicated. At midnight, XXXX asked the Appellants' mother to make some food. While preparing the food, she heard the Appellants screaming and found two of XXXX friends on top of them attempting to rape them. The Appellants' mother fought them off and the Appellants ran out of the house, however, XXXX chased them. He pulled the Appellants' hair and slapped them in the face. The commotion drew the neighbours' attention. XXXX threatened everyone and dared them to call police to see if they would come. [9] XXXX continued to abuse the Appellants' mother. She realized that she had to get away and enlisted the help of her friend to complete the visa application forms. The Appellants' mother went to police several times in 2013 because she could not endure the abuse any longer, but they refused to take her report and did nothing to assist her. [10] The Appellants and their mother began to receive threatening phone calls from an unknown person saying that they would kidnap, rape, and kill them, which the Appellants' mother reported to police in XXXX 2014, but nothing was done. [11] XXXX informed the Appellants' mother that he would be going to work in XXXX XXXX XXXX for several days. Aware that this was their chance to escape, she asked her friend to book a flight for them during the timeframe when he would be away. When he departed for work, the Appellants and their mother used this opportunity to depart from Trinidad. [12] They fear that XXXX, his friends, and associates in Trinidad and Tobago will harm or kill them if they return to the country. [13] The Appellants' refugee claim was heard on March 9, 2015. In a decision of April 8, 2015, the RPD accepted the claim of the Appellants' mother and rejected the Appellants' claim, finding that the Appellants were neither Convention refugees, nor persons in need of protection. RPD's Findings [14] The RPD in its Reasons found: * The Appellants have not rebutted the presumption of State Protection in Trinidad and Tobago. [15] The Appellant submits the following issues: * The Appellants' kinship to their mother makes them vulnerable claimants. * The RPD erred in stating that democracy in a country equates to state protection. * The RPD erred in its analysis of state protection. ROLE OF THE RAD [16] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [17] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL No New Evidence The RAD notes the Appellants have each submitted an affidavit2 with their appeal. The Appellants have stated they are not submitting new evidence as set out in subsection 100(4) of the Immigration and Refugee Protection Act in respect of their appeal. The RAD finds these documents contain a review of their testimony and attempts to clarify the basis of their claim. The RAD has reviewed these documents and finds they do not contain admissible new evidence in this appeal. Kinship Makes Them Vulnerable Claimant's [18] The Appellants submit the RPD had a judicial duty to give consideration to the fact that the Appellants are "vulnerable persons" according to the Chairperson's Guideline 8. The RAD is not persuaded by the argument of the Appellant. [19] The RAD notes the intention of this Guideline is to provide procedural accommodation(s) for individuals who are identified as vulnerable persons by the Immigration and Refugee Board. The RAD additionally notes that the Guideline states: "It is preferable to identify vulnerable persons at the earliest opportunity". The RAD further notes the Guideline suggests, "Counsel for a person who may be considered vulnerable is best placed to bring the vulnerability to the attention of the IRB, and is expected to do so as soon as possible". The RAD notes that it has reviewed the record, as well as the audio recording of the hearing, and finds there was no application submitted to identify the Appellants as vulnerable at the hearing or reference made to such a designation in submissions by Counsel for the Appellants. [20] The RAD further notes that the Appellants have not identified how the RPD failed to apply the concepts enshrined in the Guidelines in its conduct of the hearing. The RAD notes that the RPD accepted that the Appellants' mother had been in an abusive relationship in Trinidad. The RAD finds the RPD was balanced in its assessment of the situation and cognizant of the need to individually assess the risks to the Appellants if they were to return to Trinidad. The RAD finds its review of the audio recording of the hearing confirms that the Appellants were dealt with professionally with regard to their previous experiences, without any indication of an insensitive approach from the RPD. The RAD finds the Appellant's argument must fail. State Protection [21] The RPD found that the Second and Third Appellant (the Appellants) did not rebut the presumption of State Protection. The Appellants submit that the RPD did not consider a number of factors in arriving at its conclusion. The RAD is not persuaded by the argument of the Appellants. Democracy and State Protection [22] The Appellant submits that the RPD finding on the availability of state protection in Trinidad and Tobago-based in part on that the country is a democracy-is unreasonable. The RAD finds the Appellant has misapprehended the RPD Reasons. [23] The RAD notes the Federal Court in reference to state protection case law has stated: The claimant's 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 available courses of action.3 A claimant from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all the recourses available domestically before claiming refugee status.4 [24] The RAD, having reviewed the record, finds the RPD not only considered the basic aspects of the democratic composition of the country and the mechanisms put in place to investigate abuses, but it considered and assessed the documentary evidence specific to the Appellants' situation. The RAD finds the RPD's statements in reference to the democratic composition of Trinidad and Tobago was appropriate in terms of a fulsome analysis of the state protection available to the Appellants. The RAD finds this aspect of the Appellant's argument must fail. State Protection is Not Available to the Appellants [25] The RPD found that the Appellants could return to Trinidad and should they require protection from the state it will be provided to them. The Appellant argues that the RPD looked at the evidence presented in the claim individually instead of collectively. The RAD is not persuaded by this argument. The RAD has reviewed the audio recording of the hearing and notes the RPD conducted a fulsome review of the evidence. During the hearing the RPD assessed the Appellants' mother as well as each Appellant individually, looking at the experiences and risks they faced through their association with their mother as well as those facing them as individuals should they return to Trinidad. [26] There is a presumption, except in situations where the state is in a complete breakdown, that it is capable of protecting its citizens. An Appellant who alleges that state protection is inadequate must persuade the Board that, on a balance of probabilities, the evidence establishes that the state protection is inadequate.5 An Appellant can rebut the presumption by providing clear and convincing evidence of the state's inability to protect. The Appellant's are submitting that they are similarly situated individuals who have not been provided state protection when previously requested on their behalf. [27] The RAD further notes that in its review of the audio recording of the hearing, the Appellants' mother provided extensive testimony in respect to her interactions with the police at her local (XXXX XXXX XXXX) police station. The RAD notes the Appellants' mother in her testimony described approaching the police on a number of occasions and asking for assistance. The RAD notes the Appellant's mother on a number of occasions confirmed she was not interested in pursuing charges against her common-law spouse. The RAD further notes the RPD questioned the Appellants' mother about whether she took any further action by approaching a higher authority or followed up on any of the reports to the police considering that she was not satisfied with the actions of her local police station. The Appellants' mother answered in the negative. The RAD finds that the mother's actions limited the response of the state and is not demonstrative of a lack of state protection The RAD finds this lack of action does not confirm a failure of state protection in respect of the current appeal. [28] The RAD notes the Appellants' mother and the Appellants provided testimony and statements in their BoC narratives that they were suspicious that "XXXX" (the common-law spouse) was involved in criminal activities. Yet when the Appellants' mother was questioned about whether she disclosed this to the police, she answered, "No". The Appellants and their mother have testified that they have a fear of XXXX and this is why they don't report his numerous crimes to the police. The RAD has considered this testimony in light of the testimony of the Appellants' and their mother where they indicate that they have approached the police on many occasions. The RAD finds the explanation lacking in credibility. The RAD has cause to question how an individual can expect the state to act to protect them when they selectively choose when and if they will provide the authorities with information. [29] The RPD questioned the Appellants as well as their mother about whether they reported the alleged sexual assault in 2012 to the police. The RPD further considered that the second Appellant was a minor at the time and the Appellant was an adult. It was confirmed that neither the Appellants nor their mother reported this incident to the police. The RAD has considered that the Appellants testified they chose not to report this incident out of both fear and embarrassment. The RAD notes that the documentary evidence confirms legislation exists and assistance is available in Trinidad concerning rape and sexual assault.6 The RAD has reviewed the documentary evidence in the RPD record and considered the submissions of the Appellants in this area. The RAD further notes that the Trinidad and Tobago Police Service allows an individual to submit a police report in person, by phone, or using an online form, which would assist in alleviating the initial stress related with making a complaint.7 The Appellant highlighted that the country documents state, "proper procedures are in place, but there is little to no monitoring of rape and sexual assault cases". [30] The RAD in its review of the documentary evidence confirms the police do approach the issue of sexual assault seriously and there are support mechanisms in place for victims. The RAD additionally finds that failing to report a crime to the authorities does not confirm a lack of state protection. [31] The RAD can only speculate as to the success or lack of success in any of the investigations conducted by police regarding the Appellants' or given that they withheld information or did not fully co-operate with the police. Furthermore, the Federal Court has established that a claimant must provide the police with sufficient evidence to mount a successful investigation and information as to the criminals is a key tool.8 The RAD finds no persuasive evidence has been adduced that the police would not be successful in charging XXXX or the perpetrators of the sexual assault with full co-operation of the Appellants and their mother. [32] The RAD has reviewed the record as well as the testimony of the Appellants and their mother. The RAD finds that the record confirms the actions or lack thereof by the Appellants in approaching authorities in Trinidad for protection. The RAD finds that the Appellants' actions do not support their allegation that state protection is unavailable to them as evidenced through their past experiences. Familial Affiliation [33] The Appellants further submit they are at additional risk in Trinidad due to the familial affiliation with their mother. The RAD is not persuaded by the argument of the Appellant. The RAD has considered that the Appellants are both adults at present. The panel notes that the Appellants' mother's testimony was that XXXX has been looking for her since her departure and he has gone to both her mother's home and the homes of her neighbours asking about her whereabouts. The Appellants' mother testified that he has threatened to kill her if she does not return to him. However, no persuasive evidence was adduced to indicate these threats were directed at the Appellants or to support that he is interested in pursuing them. [34] The RAD finds that the Appellants are adults who have a choice over where they will reside in Trinidad and they have no familial ties or obligations to inform XXXX of their whereabouts. The RAD finds it is reasonable to expect them to seek the protection of the police if they were to encounter a problem with him or anyone else upon their return. [35] The Appellant additionally submits the Appellants are financially and emotionally reliant on their mother. The RAD finds that the Appellant testified to being employed during the time she was living with her mother in Trinidad. The RAD further notes the Appellants have a number of family members living in Trinidad. The RAD finds it reasonable to believe these individuals can provide the basis of a family support network. [36] The Appellants allege they believe that XXXX has friends in high places. The RAD notes the RPD confronted the Appellants and inquired whether they had any proof to support these statements. The Appellants did not address the question as put to them, simply stating that he told them, "Call the police and see if they will come". The RAD, in reviewing the record, finds there is no persuasive evidence to support the identity of XXXX or that he has any influence over the police in Trinidad. [37] The RAD further finds that while the Appellants submit that they did not get assistance from the local police station regarding the domestic abuse situation in the past, this does not mean that all police in Trinidad are ineffective. The RAD finds on its review of the record that the Appellants familial association with their mother does not place them at an increased risk of harm (more than a serious possibility) should they return to Trinidad and Tobago. The RAD finds this aspect of the Appellants' argument must fail. [38] The RAD has considered the documentary evidence, which states that there is some corruption in the police and immigration services. However, there are also mechanisms to investigate inappropriate behaviour and deviations from obligations to the public. The US Department of State Country Report on Trinidad and Tobago's Human Rights Practices for 20139, relates the following: * The PCA investigates complaints about the conduct of police officers. The PCA had 13 investigators, and from October 1, 2012, through September 30, the unit received 727 complaints. The PCA referred 312 complaints to the police commissioner and had 331 complaints pending at year's end. * The Police Professional Standards Unit and the Police Complaints Division, both non-independent bodies within the police service, also investigated complaints against the police. * The ombudsman investigates citizens' complaints concerning the administrative decisions of government agencies. Where there is evidence of a breach of duty, misconduct, or criminal offense, the ombudsman may refer the matter to the appropriate authority. The ombudsman has a quasi-autonomous status within the government and publishes a comprehensive annual report. Both the public and the government had confidence in the integrity and reliability of the office of the ombudsman and the ombudsman's annual report. [39] While the effectiveness of the protection is a relevant consideration,10 recent Federal Court decisions have held that the test for a finding of state protection is whether the protection is adequate, rather than the effectiveness per se.11 The protection need not be perfect.12 One accepted measure of assessment is whether the state is making "serious efforts" to protect its citizens.13 This standard continues to be applied in many Federal Court decisions.14 [40] As stated above, no government is expected to guarantee perfect protection to all of its citizens at all times, and the fact that a state is not always successful in protecting its citizens is not enough to justify a claim, especially where a state is in effective control of its territory, has military, police and civil authorities in place and is making serious efforts to protect its citizens.15 Less than perfect protection is not a basis to determine that a state is either unwilling or unable to offer reasonable protection.16 [41] The claimant's 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 available courses of action.17 A claimant from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all the recourses available domestically before claiming refugee status.18 [42] However, the adequacy of state protection cannot rest on the subjective fear of the claimant;19 a claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.20 The RAD, in considering the issue of state protection, finds that there is adequate state protection in Trinidad and Tobago and the Appellants have failed to rebut the presumption of state protection with clear and convincing evidence. The RAD supports the finding of the RPD in respect to the availability of state protection and the Appellants' argument must fail. CONCLUSION [43] The RAD finds that, based on its analysis of all the evidence in the record, there is sufficient evidence to support the RPD's overall determination. [44] The RAD agrees with the RPD's determination and finds that, on the basis of the totality of the evidence in this appeal, the Appellants have not satisfied the burden of establishing a serious possibility that they would be persecuted or that they would be personally subjected to a risk to their lives, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Trinidad and Tobago. The Appellants have alleged that the RPD erred in rejecting their claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD. [45] Accordingly, this appeal is dismissed. (signed) "Robert Bebbington" Robert Bebbington August 26, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. paras. 54, 55. 2 Exhibit P-2, Appellant's Record, pp. 18-22, 60-63 3 Kadenko: 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.) 4 Hinzman, Jeremy v. M.C.I. (F.C., no. IMM-2168-05), Mactavish, March 31, 2006, 2006 FC 420; Reported: Hinzman v. Canada (Minister of Citizenship and Immigration) [2007], 1 F.C.R. 561 (F.C.); Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 171. 5 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C., no. IMM-822-06), O'Reilly, March 26, 2007, 2007 FC 320. Reported: Flores Carrillo v. Canada (Minister of Citizenship and Immigration, [2008] 1 F.C.R. 3 (F.C.); Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.) 6 Exhibit P-2, Appellant's Record, pp.179-180, National Documentation Package (NDP) for Trinidad and Tobago (29 August 2014), items 2.1, 5.2 7 Ibid, item 5.2 8 Karaseva, Tatiana v. M.C.I. (F.C.T.D., no. IMM-4683-96), Teitelbaum, November 26, 1997. 9Exhibit P-2, Appellant's Record, pp.179-180, NDP for Trinidad and Tobago (29 August 2014), item 2.1 10 Quinatzin, Aguilar Gutierrez v. M.C.I. (F.C., no. IMM-1907-07), O'Keefe, August 12, 2008, 2008 FC 937. 11 Flores, Nubia Victoria Suarez v. M.C.I. (F.C., no. IMM-4613-07), Mosley, June 9, 2008, 2008 FC 723; Mendez, Luis Arceo v. M.C.I. (F.C., no. IMM-4439-07), Mosely, May 7, 2008; 2008 FC 584; Samuel, Julia Vanessa v. M.C.I. (F.C., no. IMM-5175-07), Lagacé, June 18, 2008, 2008 FC 762; Sandoval, Dora Luz Cuevas v. M.C.I. (F.C., no. IMM-5394-07), Zinn, July 14, 2008, 2008 FC 868; Gonzalez, Karla del Carmen Hernandez v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008, 2008 FC 1259; Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008, 2008 FC 1336; and Velasquez, Ventura Sarai Batres v. M.C.I. (F.C., no. IMM-2299-08), de Montigny, February 2, 2009, 2009 FC 109. 12 Zalzali, Ahmad Ali v. M.E.I. (F.C.A., no. A-382-90), Hugessen, MacGuigan, Décary, April 30 1991. Reported: 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.) 13 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) 14 Montalvo, Emmanuel Reyes v. M.C.I. (F.C., no. IMM-4703-07), Tremblay-Lamer, June 9, 2008, 2008 FC 716; Gea, Luz Alicia Lopez v. M.C.I. (F.C., no. IMM-5160-07), Lagacé, June 17, 2008, 2008 FC 750; Saldana, Pilar Atriano v. M.C.I. (F.C., no. IMM-5503-07), Dawson, September 30, 2008, 2008 FC 1092; and Sanchez, Patricia Torres v. M.C.I. (F.C., no. IMM-5283-07), Russell, December 1, 2008, 2008 FC 1336. 15 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) 16 Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 17 Kadenko: 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.). 18 Hinzman, Jeremy v. M.C.I. (F.C., no. IMM-2168-05), Mactavish, March 31, 2006, 2006 FC 420; Reported: Hinzman v. Canada (Minister of Citizenship and Immigration) [2007], 1 F.C.R. 561 (F.C.); Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007, 2007 FCA 171 19 Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no. IMM-7329-04), Phelan, July 29, 2005, 2005 FC 1050. 20 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004, 2004 FC 1089. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04066 TB5-04067