MB6-02926

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. / No de dossier de la SAR : MB6-02926 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision August 23, 2017 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the persons who are the subjects of the appeal Robert Proulx Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Portugal, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim by determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the Immigration and Refugee Protection Act (IRPA). [2] In his memorandum, the appellant is asking the RAD to set aside the RPD's determination. He adds that he would like his case to be heard by another member and that he would like to retain the [translation] "services of an expert on Portugal and have the expert testify" at his own expense.1 The appellant submitted no new evidence within the meaning of subsection 110(4) of the IRPA but is requesting that a hearing be held before the RAD. [3] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, namely that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] The appellant is from XXXX XXXX Island, in the Azores archipelago. He alleges a well-founded fear of persecution by reason of his sexual orientation. He alleges that his family is conservative and they do not accept his homosexuality. In the Basis of Claim Form (BOC Form), he states that he was verbally and physically abused by members of his family. The appellant states that he came close to death after his brother-in-law and mother assaulted him. A copy of the complaint submitted under Exhibit P-12 indicates that the assault took place in XXXX 2009. [7] The evidence on the record indicates that the appellant stayed in Canada for two weeks in XXXX 2014. The appellant returned to XXXX XXXX. He came back at the beginning of the month of XXXX 2014 and he returned to the Azores again around XXXX XXXX, 2014. On XXXX XXXX, 2014, he entered Canada one last time.3 He claimed refugee protection in March 2016. Impugned decision [8] On April 14, 2016, the RPD orally rejected the appellant's refugee protection claim by concluding that the appellant failed to rebut the presumption of state protection. [9] In terms of credibility, the RPD noted that the appellant's behaviour is not that of someone who fears for his life or safety. For example, the RPD noted that, after the 2009 incident, the appellant lived in the family home and did not try to move to another city. After a stay in Canada, the appellant returned to live with his family. Finally, the RPD noted the delay in claiming refugee protection. According to the RPD, those factors undermined his credibility and raised doubts about the reasons why the appellant left Portugal and the risk he claims he would face in the event of his return. [10] However, the RPD did not question the fact that the appellant is homosexual and that he has been verbally and physically abused in the past. Expert testimony and hearing before the RAD [11] The RAD appeal proceeding is paper-based. A hearing cannot be held if the conditions under subsection 110(6) of the IRPA are not met. In this case, I cannot hold a hearing because I have no new evidence. [12] Without providing further clarifications, the appellant is asking the RAD to allow him to call an expert witness on Portugal at the hearing. I cannot allow his request. An expert cannot be heard before the RAD because it would be an attempt to introduce new evidence within the meaning of subsection 110(4) of the IRPA, yet the appellant has not provided full and detailed submissions as to how that testimony meets the requirements of subsection 110(4) of the IRPA. I have no submissions explaining why this witness was not heard before the RPD. Consequently, I reject the appellant's request. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [13] In his memorandum, the appellant argues the following: * The RPD prejudged the claim before hearing it; * The RPD did not consider that, despite laws that prohibit discrimination based on sexual orientation, the Portuguese are extremely conservative and religious, and it takes time for the taboos or prejudices to disappear; * The police officers did not provide him with adequate protection by suggesting that he return home and solve his problem with his family.4 SCOPE OF THE APPEAL [14] The RPD found that the determinative issue is state protection. It is a question of mixed fact and law. Although the RPD noted some credibility factors, those factors do not include the issue of state protection. In Huruglica,5 the Federal Court of Appeal concludes that findings of fact and mixed fact and law that raise no issue of credibility of oral evidence must be reviewed applying the correctness standard; this is the standard that applies in this case. [15] I will review all the evidence in order to determine whether the RPD erred as alleged. If an error in fact, law, or mixed fact and law was made, I will intervene using one of the means set out in sections 110 and 111 of the IRPA. Issues [16] In the appeal, I will have to examine the following questions: * Did the RPD act with bias? * Did the RPD err in its analysis of state protection? ANALYSIS [17] In the analysis of the appeal, I considered the Chairperson's Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression, which came into effect on May 1, 2017. [18] Having conducted my own analysis of the file, I find that the RPD did not act with bias. I am of the opinion that the RPD erred in its assessment of state protection. I confirm the RPD's determination, but for other reasons. In my opinion, the determinative issue is the internal flight alternative in Lisbon. Appearance of bias and breach of procedural fairness [19] A decision-maker's appearance of bias is a question of law, which must be reviewed applying the correctness standard. The appellant states that the RPD member rendered an oral decision because she had prejudged his claim before hearing it. [20] To claim that a decision-maker acted with bias is a serious accusation that must be "properly supported by credible evidence and sound reasoning."6 The threshold established in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, pages 394 and 395, is high: ...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [21] Having listened to the recording of the hearing and having reviewed all the evidence, I cannot conclude that a reasonable person would think that it is more likely than not that the member prejudged the claim because she was able to render the decision orally. Accordingly, I reject that argument. State protection [22] State protection is a mixed question of law and fact7 that must be reviewed on the standard of correctness when it does not raise issues with the credibility of oral testimony. In this case, the RPD did not question the appellant's statements on this subject. Furthermore, I am of the opinion that the RPD has no meaningful advantage over the RAD in making a final determination. [23] The RPD did not doubt that the appellant is homosexual and that he has been verbally and physically threatened in the past. [24] In its analysis of state protection, the RPD referenced a number of principles set out in the case law, specifically the presumption that the state is able to protect its citizens, that [translation] "the reaction of the police in a police station does not rebut the presumption of state protection,8 and that refugee protection claimants from a democratic country like Portugal have a heavy burden when attempting to show that they should not have been required to exhaust all of the recourses available to them.9 [25] Although the principles set out in the case law were presented accurately, I am of the opinion that the RPD has not sufficiently considered the specific facts of this case. Here is why. [26] The uncontradicted testimony of the appellant revealed that, in the Azores, he was living with his mother, sister and brother-in-law in the village of XXXX XXXX XXXX. His family members verbally and physically assaulted him a number of times because of his homosexuality. In XXXX 2009, he was assaulted to the extent that he had to be hospitalized and even undergo surgery. The appellant filed a complaint with the authorities, but his mother asked him to withdraw his complaint. The police officers allegedly lectured him, reminding him that it was his own mother, that he would cause hardship to his family by proceeding with the complaint.10 They apparently insisted that he try solving his problems with his family. The appellant withdrew his complaint, thinking he was doing the right thing. The appellant testified that, after having withdrawn his complaint, he was again mistreated by his mother. On various occasions, he informed the police of his problems, but they refused to accept his complaints, arguing that it was up to him to address his situation with his family.11 [27] The facts in this case are unique. Considering the seriousness of the abuse suffered by the appellant, I am of the opinion that the police officers in the village did not provide him with adequate protection. Of course, case law has established that the failure to act locally is not an indication that the state cannot or does not want to provide adequate protection; it would have been necessary to examine whether the appellant was able to complain to other authorities in the village of XXXX XXXX or in the area. In my opinion, that analysis should have been conducted in this case. [28] However, having carefully examined all the evidence and having listened to the recording of the hearing, I am of the opinion that the determinative issue is the internal flight alternative elsewhere in Portugal, more specifically in Lisbon. [29] At the hearing, the appellant was asked about the possibility of relocating to Lisbon and counsel had the opportunity to make submissions on this point. On June 20, 2017, I asked that a letter be sent to the appellant and his counsel to inform them that the determinative issue is the internal flight alternative (IFA) in Lisbon and inviting them to provide additional submissions before July 19, 2017. Neither the appellant nor his counsel provided additional submissions. Since the appellant was asked about the possibility of relocating to Lisbon, the evidence on the record allows me to provide a final determination without hearing the oral evidence. Criteria concerning the IFA [30] The case law sets out a two-pronged test to determine the IFA. First, the proposed IFA location must be safe. Since the claim is based on one of the five Convention grounds, the test is to find out whether there is a serious possibility of persecution in Lisbon. Second, it must not be objectively unreasonable for a refugee protection claimant to find refuge there.12 First prong of the IFA: Safety in Lisbon [31] At the hearing, the appellant stated that he cannot settle in Lisbon because he does not have the means to do so and knows no one there. If he had to move to Lisbon, he would live on the street. In addition, the Portuguese are prejudiced against homosexual individuals and he would have a hard time finding work.13 On that point, the appellant gave as an example a time in the Azores when he answered a job posting in a newspaper. When he introduced himself, the employer answered that the position had been filled. The appellant believes that he was not considered for the job because of his homosexuality. In the submissions, counsel notes that Portugal is a religious country with traditional values and that the appellant's effeminate appearance would make him the laughing stock of other people.14 [32] The appellant did not establish that there is a serious possibility of persecution if he relocated to Lisbon. My conclusion is based on the following factors. [33] First, the evidence shows that the appellant's problems occurred inside the family circle. In addition, the Country Report on Human Rights Practices15 states: * Portugal, which includes the archipelagos of the Azores and Madeira, is a constitutional democracy with a president, prime minister, and parliament elected in multi-party elections. National parliamentary elections in 2011 were free and fair. They took place in accordance with international standards, and there were no reports of abuses or irregularities. Authorities maintained effective control over the security forces. * The government investigated, prosecuted, and punished officials who committed abuses. * There were approximately 50,000 law-enforcement officials, including police and prison guards. The Ministries of Internal Administration and Justice are primarily responsible for internal security. The Ministry of Internal Administration oversees the Foreigners and Borders Service (SEF), the PSP, and the GNR. The SEF has jurisdiction over immigration and border problems. The PSP has jurisdiction in cities, and the GNR has jurisdiction outside cities. The Judiciary Police are responsible for criminal investigations and report to the Ministry of Justice. The IGAI, responsible to the Ministry of Internal Administration, investigates security force killings and evaluates whether they occurred in the line of duty or were otherwise justifiable. * Civilian authorities maintained effective control over the SEF, the PSP, and the GNR, and the government has effective mechanisms to investigate and punish abuse and corruption. An independent ombudsman chosen by parliament and the IGAI investigates complaints of abuse or mistreatment by police. Nongovernmental organizations (NGOs) criticized the slow pace of investigations and the lack of an independent oversight agency to monitor the IGAI and the Ministry of Internal Administration * The constitution and law provide for an independent judiciary, and the government generally respected judicial independence. * A number of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials generally were cooperative and responsive to their views. * Government Human Rights Bodies: The country has an independent human rights ombudsman appointed by parliament who is responsible for defending the human rights, freedom, and legal rights of all citizens. The Ombudsman's Office operated independently and with the cooperation of the government. * The ombudsman had adequate resources and published mandatory annual reports, as well as special reports on problems such as women's rights, prisons, health, and the rights of children and senior citizens. * The constitution and law prohibit discrimination based on race, gender, disability, sexual orientation, language, and social status, and the government effectively enforced these prohibitions. * The constitution and the law prohibit discrimination based on sexual orientation and gender identity. The law bars lesbian, gay, bisexual, and transgender couples and single women from receiving medically assisted reproductive health care from government-funded health-care providers. [34] Although the situation in Portugal is far from perfect, according to some, Portuguese laws are progressive in terms of equality rights for lesbian, gay, bisexual and transgender persons;16 in fact, Portugal is sometimes cited as a worldwide example and a European trendsetter in recognizing the rights of LGBT persons.17 Same-sex marriage has been allowed since 2010. [35] In light of that information, I am of the opinion that the appellant has a safe IFA in Lisbon. Should he encounter problems, there are mechanisms in place that he can use to assert his rights. Second prong of the IFA: Is it objectively unreasonable for the appellant to relocate to Lisbon? [36] The courts have repeatedly indicated that the standard for determining that an IFA is unreasonable is rigorous.18 The Federal Court of Appeal in Ranganathan19 states: ...[T]his Court [has set] a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. [37] At the hearing, the appellant stated that he knows no one in Lisbon and that gay persons are discriminated against when it comes to employment. The fact that he knows no one there is no reason to conclude that it would be unreasonable for him not to settle there. In addition, the evidence on the record shows that even if, on occasion, an employer did not consider his application because of his physical appearance, the appellant had various jobs in the Azores. It is probable that he will also be able to make a decent living in Lisbon, a big urban centre. [38] In light of all the evidence available to me and in light of the appellant's personal situation, I am of the opinion that he did not establish that his relocation to Lisbon would be objectively unreasonable; the information available does not allow me to conclude that there is [translation] "actual and concrete evidence of conditions which would jeopardize the life or safety" of the appellant. [39] Having considered all the evidence before me, having formed my own opinion on the merits of the claim, I am of the opinion that the appellant could safely relocate to Lisbon and that it would not be objectively unreasonable for him to relocate there. It is important to note that international protection only comes into play when there is no safe place for the claimant in his country of origin. CONCLUSION [40] For those other reasons, I confirm the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" or "a person in need of protection" within the meaning of section 97 of the IRPA. [41] The appeal is dismissed. Maria De Andrade Me Maria De Andrade August 23, 2017 Date IRB translation Original language: French 1 Appellant's memorandum, page 14. 2 RPD record, pages 190 to 197. 3 CD of the hearing, 29:11 to 30:41. 4 Appellant's memorandum, page 14. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 6 Bulut v. Canada (Minister of Citizenship and Immigration), 2005 FC 1627. 7 Liang v. Canada (Citizenship and Immigration), 2008 FC 450. 8 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, Carillo v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 399. 9 Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, [2007] FCJ No. 584. 10 CD of the hearing, 1:28:07 to 1:28:41. 11 CD of the hearing, 1:02 to 1:06. 12 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, [1993] FCJ No. 1172 (QL). 13 CD of the hearing, 1:07 to 1:08. 14 CD of the hearing, 1:36:15. 15 National Documentation Package on Portugal, July 17, 2015, Tab 2.1: United States, Department of State, Portugal Country Reports on Human Rights Practices for 2014, June 25, 2015. 16 Tab 6.2 of the National Documentation Package, RPD record, page 69. 17 Idem, page 94. 18 Perez v. Canada (Minister of Citizenship and Immigration), 2011 F.C. 8; Montalvo v. Canada (Minister of Citizenship and Immigration), 2008 F.C. 716. 19 M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-01433 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB6-02926 11 RAD.25.02 (7 février 2014) Available in English