TB4-12134

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 : TB4-12134 TB4-12135 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 18, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Meghan Wilson 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 male Appellant), and his wife, XXXX XXXX XXXX, (the female Appellant), both citizens of Trinidad and Tobago, are appealing the decisions of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their appeals and they are requesting that the Refugee Appeal Division (RAD) conduct an oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). The Appellants are asking the RAD to substitute a positive determination, or in the alternative, remit the matter to a newly-constituted panel of the RPD for re-determination. DETERMINATION: [2] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD with respect to the male Appellant XXXX XXXX XXXX. His appeal is dismissed. [3] Pursuant to subsections 111(1)(c) and 111(2) of the IRPA, the RAD refers the claim of the female Appellant, XXXX XXXX XXXX, back to the RPD for re-determination by a differently-constituted panel. Her appeal is allowed. [4] Although these claims were joined by the RPD as husband and wife, their claims are based on entirely different allegations. Accordingly, the RAD, particularly in light of the "split" decision, will provide its analysis of each claim separately. Background of P.A. [5] Mr. XXXX fears crime and corruption if he returns to Trinidad and Tobago. In 1999, he alleges that he was beaten by the police based on mistaken identity. He alleges that although he went to the police, they did nothing to assist him. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [6] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The following new evidence has been submitted in support of this appeal: 1. Letter from XXXX mother. 2. Death certificate of XXXX XXXX - XXXX testimony of a murder of a family member. 3. Death certificate of XXXX XXXX, which corroborates XXXX testimony of a murder of a family member. 4. Letter from XXXX XXXX (XXXX father). 5. Association of Caribbean Police Commissions, confirming XXXX testimony that Mr. XXXX XXXX is the current Police Commissioner. 6. The Guardian, Flawed Discipline for Cops, dated November 5, 2014. 7. Amnesty International Human Rights Concerns, dated October 2011. 8. Freedom House report, dated August 22, 2014. 9. The Guardian, dated October 3, 2011. 10. Insight Crime, dated October 11, 2012. 11. Newsday, dated November 27, 2014, which post-dates the rejection of the claim. 12. Police Complaints Authority 2013 report. 13. The Guardian, dated May 2, 2013. 14. Power 102, Gillian Lucky Resigns as the Head of the Police Complaints Authority, dated September 2, 2014. 15. Letters from CIC confirming that removal proceedings did not begin until 2012 and were put on hold until May 8, 2013. [8] The RAD finds that items 1 to 5 relate to the female Appellant , and since her appeal is allowed, they are admitted.. [9] Items 7, 9, and 10, 12, 13, 14 pre-date the rejection of the claim and, therefore, do not meet the Statutory requirement. The RAD does not accept the Appellant's explanation that as unrepresented Appellants, it cannot be assumed that they would know what to provide to the RPD. [10] Item 6 post-dates the rejection of the claim, and therefore, the RAD accepts it into evidence as it relates to the corruption of police officers and to the issue of State protection. Item 8 contains no date of publication and therefore is not admitted. Item 11, Newsday, post-dates the rejection of the claim and is therefore admitted to be considered along with the documentary evidence, although it speaks to violence in a number of other countries. The last items are not "new", in that the RAD accepts that there was no evidence before the RPD that the Appellants had been under a removal order whilst their Humanitarian and Compassionate (H & C) applications were in process, and they are, therefore, inadmissible. [11] The RAD has considered the documents which are admitted, however, finds that they do not meet the criteria as set out in subsection 110(6) of the IRPA, and accordingly, the RAD denies the Appellants' request for an oral hearing. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. SUBMISSIONS BY THE APPELLANT: [12] What is the scope of the RAD's appellate jurisdiction? [13] Did the RPD err in determining that state protection is available to the P.A.? [14] Did the RPD err in determining that the P.A.'s delay in claiming refugee protection affected his credibility? ROLE OF THE RAD: [15] The RAD finds that 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. 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. [16] 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. Delay in claiming: [17] The RPD noted a 12 year delay in claiming refugee status, following the P.A.'s arrival in Canada in July 2001 as a seasonal worker. At that time, the RPD noted that he had permission to remain in Canada for a period of six months, however he remained without status, and never applied for an extension following the expiration of his status. When confronted with this egregious delay, the P.A. stated that he had not sought legal advice out of fear, and he was unaware of the laws. However, it was noted that in 2007 the Appellant and his wife submitted an H & C application, which was denied some five years later. The RPD found that this did not explain the six intervening years and the risk of deportation at any time during this period. [18] It is submitted by the P.A. that delay alone is not determinative or a stand-alone ground to refuse a refugee claim, particularly if one can explain the reason for the delay. It is submitted that family members told them that they could not apply on H & C until they were in Canada for five years. Moreover, once they made that application, they were "above ground" and Canada Immigration (CIC) had never approached them for removal. [19] The RAD does not concur with the P.A. about the six years intervening between the arrival of the P.A. and his H & C application. Since he had family members here in Canada, if he was truly fearful, they were in a position to assist him with alternatives that could not result in illegal status and possible deportation. [20] It is expected that, absent a good reason, a person with a genuine fear of serious harm whose intention it is to seek refuge in Canada will do so immediately upon arrival.2 The Federal Court of Appeal has held that delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status."3 The author of The Law of Refugee Status, James C. Hathaway, points out: ... the Convention establishes [in Article 31(1)] an obligation on refugees to 'present themselves without delay to the authorities and show good cause for their illegal entry or presence.' It seems right, therefore, to inquire into the circumstances of any protracted postponement of a refugee claim as a means of evaluating the sincerity of the claimant's need for protection. ... Where there is no reasonable excuse for the delay, an inference of evasion going to credibility is often warranted. 4 [21] Recent decisions have upheld this Board when dismissing a claim solely on the basis of extreme delay.5 In Espinosa, the Court held "... there are circumstances where the delay can be such that it assumes a decisive role; what is fatal to the applicant's claim is his inability to provide any satisfactory explanation for the delay."6 [22] In Mesidor, Mr. Justice Shore pointed out that: "... the courts have consistently held that a claimant's delay in filing a refugee claim can justify the rejection of a refugee claim in a case where this delay was not satisfactorily explained." 7 [23] In the case of Williams, a gender related claim, the claimant took two years to file a claim for refugee protection after her arrival in Canada. Mr. Justice Legace stated: The court recognized that, according to the case law, while delay in making a claim is an important factor to consider, it is not decisive; nonetheless, delay may, in circumstances such as in this case, suffice to warrant the dismissal of a claim, even though this is unfortunate for the applicant. The explanations of the applicant, viewed in the context of her uncorroborated evidence in its entirety, warranted the dismissal of her claim by the Board. 8 [24] The RAD finds that this aspect of the Appellant's conduct is inconsistent with a person living in fear of persecution in their country. In certain circumstances, however, delay can be a determinative and decisive factor.9 In the case at hand, given the egregious nature of the delay, the Board draws an adverse inference and finds as a result of that delay that the Appellant lacks the subjective fear necessary to support his claim and seriously undermines his credibility. State protection and well-foundedness of the male Appellant's fears [25] In spite of the RAD's finding, it will analyze the central issue of the male Appellant's claim, namely his allegations that the police did not assist him when he was mistakenly beaten by the police. He also has a general fear of the police and corruption in Trinidad, however, nothing specifically related to him, other than the 1999 incident. [26] The RPD noted that the P.A. had testified that he had attempted to file a police report for the wrongful action against him. However, he indicated in response to the RPD that he did not believe at that time there was an independent authority to investigate the matter. The RPD noted that this incident occurred in 1999 but the P.A. did not leave Trinidad and Tobago until 2001. Moreover, it noted that it has been 14 years since this alleged incident occurred. [27] The RPD noted the documentary evidence10 in which it indicates that Trinidad now has an Independent Complaints Authority that conducts investigations into police misconduct. Moreover, the RPD noted that this incident was a case of mistaken identity; no other reason was cited as the cause. [28] The Appellant submits that the RPD failed to provide any analysis of the operational adequacy of the laws and structures in place. It is argued that the RPD acknowledged the widespread existence of corruption, which ought to lead one to believe that the police are not performing their duties to protect the public. It is submitted that the RPD mostly supported its state protection finding by the fact that the Police Complaints Authority (PCA) was able to investigate complaints about the conduct of police officers, and cited 312 complaints having been forwarded to the commissioners, as proof that this was effective. It is submitted that this reasoning is flawed. It is further argued that evidence was elicited of similarly situated persons who did not receive the assistance of the police, and this evidence is uncontradicted. [29] The RAD finds upon review of the transcript that the P.A. further testified that currently his main fear of returning to Trinidad was the perception that he had money, since he had been in Canada for 14 years. [30] The RAD concurs with the findings of the RPD, that this was a random incident which occurred many years ago. The Convention refugee definition is forward-looking and the RAD finds that there is no evidence which would suggest that this would occur if the P.A. were to return to Trinidad today. Moreover, there was no evidence before the RPD or the RAD that the P.A.'s concerns about the population's perception that he had money having been in Canada for 14 years, had any evidentiary basis. [31] In totality, the RAD finds that there was insufficient persuasive evidence that the P.A.'s fears are well-founded if he were to return to Trinidad today. Nevertheless, the RAD has examined the issue of State Protection. State Protection [32] The RAD, in assessing the issue of state protection, is guided by a number of cases from the Supreme Court of Canada and the Federal Court. The Courts have established a number of principles relating to state protection and I have applied those principles to the case at hand. [33] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee Appellant has no other recourse available.11 [34] An Appellant who alleges that state protection is inadequate must persuade the Board that the evidence establishes that the state protection is inadequate. To rebut the presumption of state protection, an Appellant must provide "clear and convincing" evidence of the state's inability to protect its citizens. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that state protection is inadequate.12 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.13 An Appellant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.14 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.15 [35] Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee Appellant has unsuccessfully sought the protections of his home state. The onus is on the Appellant to approach the state for protection in situations where state protection might be reasonably forthcoming.16 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.17 [36] The Appellant'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 Appellant must have done to exhaust all courses of action open to them.18 In a functioning democracy, an Appellant will have a heavy burden when attempting to show that they should not have been required to exhaust all of the recourses available to them domestically before claiming refugee status.19 The Appellant must do more than merely show that he or she went to see members of the police force and that those efforts were unsuccessful. An Appellant must show that they have 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 Appellant's interactions with the authorities.20 Local failures by authorities to provide protection do not mean that the state as a whole fails to protect its citizens, unless the failures form part of a broader pattern of the state's inability or refusal to provide protection.21 [37] In view of these principles, I find that the P.A. has not provided clear and convincing evidence, that on a balance of probabilities, state protection in Trinidad is inadequate. In this particular case, the P.A. was questioned as to what efforts he made to seek state protection before fleeing Trinidad. He alleged that at that time there was no higher authority to which he could complain. However, the RAD notes, as stated above, that nothing untoward occurred between that time and his departure; a period of two years. Moreover, given that this was a case of mistaken identity, the RAD concludes, on a balance of probabilities, that it would not occur in the future. [38] The documentary evidence22 before the Board indicates that Trinidad is a democracy, and there are free and fair elections. There is a relatively independent and impartial judiciary. Having canvassed the country conditions documents,23 I find that Trinidad is in effective control of its territories and has in place a functioning security force to uphold the laws and constitution of the country. There is nothing in the documentary evidence before the Board to suggest that Trinidad is in a state of complete breakdown. [39] The government generally respected the human rights of its citizens; however, there were problems in some areas including violence against women. The national police force comprises nine countrywide divisions, including 17 specialized branches, with approximately 7,000 members.24 [40] In the event that the P.A. would not be satisfied with the response that he might receive, he could approach such authorities as the Police Complaints Authority, which receives complaints about the conduct of police officers for transmittal to the Complaints Division of the Police Service, where uniformed officers investigate.25 The Authority monitored the division's investigations and its disciplinary measures. If, however, the complaint was not taken seriously, the P.A. still would have other avenues of recourse, such as the Ombudsman, who investigates citizens' complaints concerning the administrative decisions of government agencies. Both the public and government had confidence in the integrity and the reliability of the Office of the Ombudsman and the Ombudsman's Annual Report.26 [41] In conclusion, the RAD finds that if the P.A. were to encounter problems upon his return to Trinidad, and the RAD finds that that there is no reason to believe that this would occur, adequate state protection at the operational level would be forthcoming. [42] After conducting an independent assessment of the entire record, the RAD concurs with the RPD that the P.A. is not a Convention refugee or a person in need of protection. Background of P.A.'s wife (the Appellant) [43] The Appellant's claim is based on allegations of sexual assaults between the ages of 9 and 12 by her mentally ill uncle who threatened to kill her if she told anyone. She arrived in Canada at the young age of 17, then the boyfriend of the P.A. SUBMISSIONS BY THE APPELLANT: [44] Did the RPD err in its findings with respect to the Appellant's delay in filing a refugee claim? [45] Did the RPD err in its findings with respect to the issue of State Protection? [46] The RPD did not accept the Appellant's explanation for the delay in claiming refugee status, notwithstanding the fact that her testimony revealed that she had only just divulged this information. Moreover, the RAD notes that these Appellants were unrepresented and the Appellant herself was extremely traumatized to speak of what had occurred in the past in front of her husband. [47] However, the Federal Court (IMM-1716-15, of January 21, 2016) in a decision on the present case has spoken to this issue and found that both the RPD and the RAD in its previous decision failed to consider the application of the Gender Guidelines, when coming to its conclusion. The Court stated that the RPD and the RAD ignored the fact that the Appellant had repressed the trauma and did not divulge this information until she was truly forced with the possibility of removal from Canada. [48] Accordingly, in the particular circumstances of the female claim, the RPD's finding with respect to delay is not sustainable, and the RAD, after conducting its own assessment of the evidence, does not find that the Appellant delayed in claiming refugee status. [49] In the same decision, the Federal Court addressed this issue in terms of State protection at the operational level, noting that protective orders, availability of shelters, and a hotline are not indicative of state protection. [50] Moreover, the Federal Court examined the RAD's conclusion that this Appellant did not have an objective basis for her fear because she had lived at home for five years, prior to leaving, without being abused. The Federal Court stated that this conclusion was reached without regard to the evidence that the Appellant's uncle had also abused her cousin, is mentally unstable and has threatened her life if she returns. [51] The RAD has considered if it could substitute its own determination with respect to the credibility of the female Appellant's allegations. It has concluded that it cannot in the absence of sufficient evidence on the record, particularly given the fact that the female Appellant would have preferred to provide her testimony in the absence of her husband. The RAD has also considered the fact that the Appellants were unrepresented, and in light of the Gender Guidelines, the RPD ought to revisit this issue to elicit further evidence from this Appellant. [52] Pursuant to subsections 111(1)(c) and 111(2) of the IRPA, the RAD refers the claim of the female Appellant, XXXX XXXX XXXX XXXX back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara April 18, 2016 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Hurt v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 340 (C.A.), at 342. 3 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 4 The Law of Refugee Status, James C. Hathaway, Toronto: Butterworths, 1991, at page 53. 5 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 2003 FC 1324; Singh, Swaraj v. M.C.I. (F.C., no. IMM-2781-05), Beaudry, April 7, 2005, 2006 FC 181; Ayub, Afshan Ayub v. M.C.I. (F.C., no. IMM-3493-04), Martineau, October 14, 2004, 2004 FC 1411. 6 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 2003 FC 1324, note 3, paragraph 17. 7 Mesidor, Josue Peterlee v. M.C.I. (F.C., no. IMM-2233-09), Shore, December 4, 2009, 2009 FC 1245, note 5, paragraph 12. 8 Williams, Jacintha Jasette v. M.C.I. (F.C., no. IMM-18-09), Lagacé, July 31, 2009, 2009 FC 793, paragraph 26. 9 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, Surjit Kaur v. M.C.I. (F.C., no. IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. 10 Exhibit RPD-1, RPD's Record, exhibit 4, National Documentation Package (NDP) for Trinidad and Tobago (August 29, 2014), item 2.1. 11 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 725 and 709. 12 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 13 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.), at 133. 14 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 15 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 16 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 725. 17 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 18 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.), at 536. 19 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, para. 46. 20 Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002. 21 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 22 Exhibit RPD-1, RPD's Record, exhibit 4, NDP for Trinidad and Tobago (August 29, 2014), item 2.1., United States (US), 25 February 2009, Department of State, Trinidad, Country Reports on Human Rights Practices for 2008. 23 Ibid. 24 Exhibit RPD-1, RPD's Record, exhibit 4, NDP for Trinidad and Tobago (August 29, 2014), item 2.1., United States (US), 25 February 2009, Department of State, Trinidad, Country Reports on Human Rights Practices for 2008. 25 Ibid. 26 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12134 TB4-12135