TB9-15461

RAD File / Dossier de la SAR : TB9-15461 TB9-15462 / TB9-15463 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personnes en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision January 31, 2020 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the persons who are the subject of the appeal Adrienne C Smith Barrister and Solicitor Conseil des personnes en cause Designated representative XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) for XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (Ms. XXXX) and her minor two children, XXXX XXXX XXXX and XXXX XXXX XXXX (collectively the Appellants) are appealing against a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB) that denied their refugee claims.1 [2] Ms. XXXX is the Designated Representative for the minor Appellants under subsection 167(2) of the Immigration and Refugee Protection Act (IRPA).2 OVERVIEW [3] Ms. XXXX older sister XXXX came to Canada in 2012 and submitted a refugee claim.3 Ms. XXXX and her two children came to Canada in XXXX 2016 and submitted refugee claims that were joined with XXXX existing claim. Both Ms. XXXX and XXXX alleged that their father sexually and physically abused them when they were young and transmitted the human immunodeficiency virus (HIV) to each of them. Ms. XXXX alleges that her father is the biological father of her two children born in 2014 and 2016. XXXX claim also included fear of persecution for being bisexual. The RPD rejected all of the claims. [4] XXXX claim was not eligible for appeal to the RAD and therefore this appeal addresses the rejected claims of Ms. XXXX and her two children only. Shortly before finalizing this decision, I received a Section 29 application for late submissions/evidence regarding a determination from the Federal Court that allowed XXXX judicial review application on consent. I am not granting the Section 29 application to consider that submission/evidence because, while there are similarities in the claims, XXXX claim focused on her bisexual identity which is not an issue for Ms. XXXX and her minor children. Furthermore, and in any event, I am allowing the appeal based on the arguments presented in the Appellants' Memorandum. [5] Hearings for all of the claims convened in 2017 but were not completed because of the Presiding RPD Member's departure. A new in-person hearing was convened on February 28, 2019, where the joined claims were heard de novo by an RPD Member who did not review any of the prior hearing transcripts. At the outset of the hearing, the RPD Member canvassed and identified the numerous documents that were submitted during the course of the claims, including amended Basis of Claims Forms (BOCs) and Personal Information Forms, country information, reports relating to the sisters' health issues and other personal documents including a criminal charge against XXXX related to domestic assault. There was testimony at the hearing mainly from XXXX and also from Ms. XXXX relating to sexual and physical abuse by their father, which is relevant evidence for this appeal. Aspects of the RPD decision and the evidence that relate solely to XXXX bisexual identity are not relevant to this appeal. Written submissions were received after the hearing. Before making a final decision, the RPD Member notified the Appellants that a new version of the National Documentation Package, issued on March 29, 2019, would be considered. Submissions were invited and although none were received, the RPD Member confirmed that the outcome would not have been affected in any event. [6] At the outset of the hearing, the RPD Member engaged discussion about Ms. XXXX vulnerabilities including developmental challenges affecting her communication abilities. A vulnerable person application was withdrawn by her Counsel but there was recognition of the need for informality and sensitivity when enquiring about specifics of sexual and physical abuse allegations. There was discussion of reverse order questioning and, while that was not initiated, questioning of the claimants was completed interactively between the RPD Member and Counsel for the claimants. There was generous allowance for breaks during the hearing process. The RPD issued its decision on May 27, 2019. The RPD process was fair and provided full opportunity for the Appellants to present their case. [7] The sisters testified about the physical and sexual abuse they suffered as children from their father. They expressed fear of their father and observed abuse of their mother as well until their parents separated. Younger siblings remained in their mother's custody but their father sought and obtained custody of XXXX and Ms. XXXX, and he continued to abuse them during their teenage years. For Ms. XXXX, the sexual abuse began at around age XXXX. XXXX left for Canada in 2012 and the abuse of Ms. XXXX continued. [8] Ms. XXXX was impregnated by her father in late 2013, and then also discovered that she was HIV positive due to the sexual abuse. The abuse continued and her second child was born in 2016. When her father threatened to sexually abuse her then three-year-old daughter, Ms. XXXX fled and joined XXXX in Canada. [9] Ms. XXXX testified that she continues to fear her father, who is angered by his two daughters fleeing to Canada. Ms. XXXX has not provided her father with her current contact information for fear that he could attempt to locate her in Canada. Ms. XXXX is focused on caring for her two children and recovering from the trauma that she experienced as a victim of repeated sexual abuse by a person who ought to have been a trusted parent. The RPD decision [10] The Appellants' identities as citizens of Antigua and Barbuda were established to the satisfaction of the RPD Member and are not an issue in this appeal. [11] At the outset of the hearing, the RPD confirmed that the credibility was not an obvious concern and that state protection was an issue. [12] The RPD found that the allegations of abuse were credible and accepted the sisters' evidence about their father's abuse and being afflicted with HIV. Although the RPD rejected some of the evidence about allegedly reporting abuse to the authorities, the Member accepted that they had suffered persecution because of serious sexual abuse from their father. The RPD found that the sisters suffered stigma and occasional discrimination for being HIV positive but that this did not amount to persecution. [13] The RPD concluded that there was no forward-looking risk and that adequate state protection was available. The RPD Member confirmed that Antigua was a functioning democracy that has effectively implemented operational steps to protect vulnerable women. The claimants did not demonstrate, with clear and convincing evidence, that protection was inadequate at the operational level. The RPD found insufficient evidence to show that if the claimants returned to Antigua and Barbuda they would not receive the protection and medical and psychological and medical rehabilitation protection they need.4 [14] The RPD also rejected arguments for compelling reasons to allow the claim based on the exception found in section 108 of IRPA, which provide for a claim to be accepted notwithstanding changes in circumstances such as improvements in state protection.5 APPEAL ARGUMENTS [15] The Appellants raised no arguments against the finding that there were no no compelling reasons to accept the claims pursuant to Section 108. They do not take issue with the RPD's statement of the law for state protection but allege two errors in the RPD's analysis and decision. [16] The first argument is that the RPD applied the law on state protection incorrectly by overemphasizing the availability of a government department to provide protection for Ms. XXXX and her children instead of the police service in Antigua. They point out that the Federal Court, in decisions such as Csoke6 and Salamon,7 has found this is a reviewable error. [17] Secondly, the Appellants allege that the RPD failed to properly consider the context of the claim when concluding that Ms. XXXX had not established a forward-facing risk in Antigua from her father. They allege that the RPD failed to consider Ms. XXXX testimony that her father will continue to be interested in her because she is the mother of his two children and that he has asked about her and the children's whereabouts. The RPD also erred in failing to properly consider how the past persecution experienced by Ms. XXXX is a sufficient evidentiary basis upon which to conclude that the Appellant will face a future risk in Antigua. ANALYSIS The law [18] A person seeking refugee protection in Canada needs to establish that they are Convention8 refugees, (i.e. that they have a well-founded fear of persecution because of a nexus ground9) or that there is a specific risk to life or risk of cruel and unusual treatment or punishment,10 in the country or countries of citizenship or former habitual residence. For Convention refugee status, Claimants have to show that there is a serious possibility or reasonable chance of the alleged persecution if they return to their country. To establish that they are persons in need of protection, Claimants have to show that there is a likelihood of the alleged risk on a balance of probabilities. If a section 96 persecution or section 97 risk is established, the Claimants have to show that the state cannot provide adequate protection and that there is no reasonably safe alternative place to live in the country. Evidence [19] As with most claims, a main source of evidence is the information from claimants provided in the BOC documents and in oral evidence during the claim process, including at the RPD hearing. Whether evidence is documentary or oral it must be assessed for probative value, which is determined by its credibility and relevance. Discussion [20] The determinative issue for this appeal is state protection. For the reasons that follow, I find that the RPD made the alleged errors. As a result of my own analysis, taking into consideration those arguments and the evidence before me, I find that the presumption of state protection has been rebutted. [21] I agree with most of the RPD's factual findings, which include that Ms. XXXX and her sister were substantially credible in their accounts of what they experienced. The RPD Member articulately described how the evidence establishes that Ms. XXXX endured a childhood marred by incest and abuse. [22] Where I take a different view of the evidence is about the actions of Ms. XXXX mother. The mother rejected XXXX request to help report problems to the police. XXXX testified that her mother threatened to speak against her and lie. Later, the mother was willing to approach police on behalf of her younger daughter, Ms. XXXX, through a cousin who was a police officer but they were not believed. The RPD found that the mother's actions carry no weight as evidence of ineffective state protection because the mother was not a reliable character: she did not act in her daughters' best interests or with bona fide motivation according to the RPD Member so her actions were not evidence as to adequacy. I find that the evidence of what the mother did or not is informative because it exemplifies a piece of the complex, socially entrenched perspectives about domestic abuse that are key contextual considerations in a unique case like this. The mother, a victim of serious abuse herself, acted in a way that exposes inherent challenges for any system that seeks to combat domestic violence. An adequate response needs to have influence on the social context of entrenched patterns of abuse so that victims can recognize their personal circumstances and expect that reporting abuse will help and not lead to further harm. [23] The RPD Member relied heavily on the existence of the Directorate of Gender Affairs (Directorate) in concluding that the presumption of state protection was not rebutted. The RPD correctly pointed out how the Directorate, a government department, offered programs and training for vulnerable women and children in Antigua. The RPD highlighted that the Directorate provides domestic violence training to law enforcement officers, health-care professionals, counsellors, social workers, immigration officers and army officers and is involved with intake for vulnerable women in crisis with a 24-hour crisis hotline. The RPD focused on the fact , that Ms. XXXX is now an adult with independent capacity to avoid her father and approach the police if necessary. The RPD Member theorized that police can use deoxyribonucleic acid (DNA) testing to gather evidence against her father based on incest. [24] The Appellants rely on the Federal Court judicial review decision in Kerdikoshvili11 to argue that it was unreasonable for the RPD to expect Ms. XXXX to approach agencies other than the police when seeking state protection such as the Directorate, a department within the government that is responsible for training police on gender issues or doing community outreach. I agree the case re-iterated that principle but the comparison to Ms. XXXX case beyond that is limited. Mr. Kerdikoshvili, a citizen of Georgia alleging discriminatory treatment, reached out to police but not to higher authorities when police response was viewed as inadequate. On judicial review of the RAD's rejection of his appeal, the Federal Court confirmed the principle that the police are presumed to be the main institution mandated to protect citizens and that other government or private institutions are presumed not to have the means or mandate to assume that responsibility. The problem with the RAD's approach in Kerdikoshvili was that it did not adequately explain how any efforts undertaken by the agencies it identified would translate into state protection for the Applicant at the operational level if he reported future ethnically motivated attacks. After the matter was reheard and dismissed again by the RAD, the Federal Court upheld the RAD's finding that the presumption of state protection was not rebutted because the RAD correctly pointed out that Mr. Kerdikoshvili did not seek help from other agencies after alleging that the police did not assist him. The RPD Member correctly highlighted that the Directorate is distinguishable from the institution discussed in Kerdikoshvili, because it provides actual support and protection services and connects victims to the specific specialized units of police or government that have been created to assist vulnerable women. [25] The RPD Member correctly pointed out that perfection is not the standard but erred in its assessment of subjective efforts made by the Appellants. It also failed to correctly consider Ms. XXXX personal circumstances and experiences. Ms. XXXX argues that the country conditions documents demonstrate that protection is neither perfect nor adequate because the police are unwilling and ill-equipped to deal with the type of violent, abusive history experienced by Ms. XXXX. She submits and I agree that protection is not adequate. [26] The fatal error in the RPD decision is a nuanced but important deficiency in the analysis. Part of that deficiency is because the analysis did not clearly distinguish between the circumstances of Ms. XXXX and XXXX. Much of the focus at the hearing and in the decision is about XXXX bisexuality and challenges with police response to discriminatory attacks. Ms. XXXX was identified as cognitively vulnerable and the sisters told the RPD Member that their mother may have felt more protective of Ms. XXXX because of that. XXXX often spoke on behalf of both of them during the hearing. Even though Ms. XXXX is now an adult, the ability to go to the police about events that occurred when she was a child or to seek police assistance now as an adult must be assessed in the correct context. [27] The availability of the Directorate and whether its effect on the delivery of police services demonstrates adequacy must be assessed through Ms. XXXX own reality lens of vulnerability and personal experience. In 2014, Ms. XXXX was 21 years old and pregnant with a child of her father after sexual and physical abuse throughout her teenage years when trusted responsible adults in her life failed to protect her or respond appropriately. Her ability to access justice and protect her own children from a similar pattern of existence is not simply a matter of waking up as an adult and locating the services and programs designed to undo or prevent further abuse. There is clear and convincing evidence of inadequacy of the system for Ms. XXXX given her personal circumstances as a cognitively vulnerable person, responsible for two children born of incest, and the experiences with her mother who was also an abused person. Her subjective unwillingness to approach police is informed by that experience and is objectively consistent with country evidence. The RPD Member implicitly imposed a requirement to seek a DNA investigation against her father as the action Ms. XXXX must be prepared to take and her unwillingness to do so is somehow a measure of adequacy. [28] The RPD Member asked Ms. XXXX if she had ever approached the Gender Affairs Directorate and she spontaneously and honestly responded that she did not understand the question. Ms. XXXX and her sister both said they had never heard of the Gender Affairs Directorate. The RPD Member explained what the Directorate is and then asked both sisters if they felt they could call the Directorate to obtain, for example, a protection order against their father. Each said "no", with XXXX explaining on their behalf that "I see in, like, the news still there and, like, people were getting - like, Csoke that's raped a 13-year-old girl and they just charged him and he got bail and then he's out on the street again. So I don't feel like that would be any type of protection."12 [29] The RPD Member asked Ms. XXXX why she did not go to the police in 2014 after being diagnosed with HIV when she was pregnant. She responded by pointing out that HIV is not a crime in Antigua. The RPD Member then asked why she could not present the evidence of her child born in XXXX 2014 as evidence of rape and abuse with potential for DNA testing that could confirm her father's paternity. Ms. XXXX expressed her view that "in Antigua he, he would get away with a lot of things because he [has] friends, he [has] family in police force that will help him. As my rape - as my situation with my abuses and rape they didn't do anything about it so I don't think that they will help me out even though I go to them and tell them that my dad gave me a baby, my dad gave me HIV. It won't make no difference still." When the RPD Member asked why she did not approach police after her second child was born, Ms. XXXX replied that he was threatening that if she told anyone he would kill both of them. [30] I agree with the Appellants' arguments that the RPD Member did not adequately deal with country information that indicates an objective likelihood that victims such as the Appellants would, in practical reality, encounter police who are unwilling and ill-equipped to deal with the type of violent domestic abuse that Ms. XXXX has suffered. When the extreme nature of her circumstances is considered in light of challenges that need to be addressed by an organization such as the Directorate, the fact of its existence and the positive efforts referred to in the documents and the RPD Member's decision, is not sufficient. The practical effect of services and training are not sufficient to counter evidence that in Ms. XXXX unique circumstances, protection was and will be inadeqaute. It was also an error to rely on Ms. XXXX status as an adult. Ms. XXXX was sexually abused until escaping at age 23 with her two children born of incest. Had she not left the country, it is more likely than not that the abuse would have continued, with worse to come because of threats from her father to abuse Ms. XXXX then 3-year-old daughter. The ability of the system to protect from that entrenched pattern of abuse must be based on more than conjecture. Claimants may be faulted for not approaching authorities when it would be reasonable to do so but it is not necessary for Claimants to risk their own and their children's lives and security to prove inadequacy. [31] As a result of my own analysis, I find that the presumption of state protection has been rebutted with clear and convincing evidence in the unique circumstances of this case. I also find that there is no place in Antigua and Barbuda for the Appellants to live, without fear of persecution from their abuser, that would be objectively reasonable in all the circumstances. Antigua and Barbuda is a small country and given my findings above, and the profile of the Appellants and the agent of persecution, there is no IFA available. CONCLUSION [32] The appeal is allowed. The determination of the RPD is set aside. The RAD substitutes its own determination that the Appellants are Convention refugees. (signed) "Maryanne Kingma" Maryanne Kingma January 31, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27: 110(1) Appeal - Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 3 RPD File number TB2-04935. 4 Exhibit RPD-1, RPD Record at p. 26, RPD Decision at para. 74. 5 The relevant parts of subsections 108(1) and 108(4) are as follows: 108(1) Rejection - A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: ... (e) the reasons for which the person sought refugee protection have ceased to exist. ... 108(4) Exception - Paragraph (l)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. 6 Csoke v. Canada (Citizenship and Immigration), 2015 FC 1169. 7 Salamon v. Canada (Citizenship and Immigration), 2013 FC 582. 8 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 9 Section 96 of IRPA. 10 Section 97 of IRPA. 11 Kerdikoshvili v. Canada (Minister of Citizenship and Immigration),2017 FC 555. 12 RPD HearingTranscript of February 28, 2019, at p. 59. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15461 TB9-15462 / TB9-15463 RAD.25.02 (April 04, 2019) Disponible en français 2 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.25.02 (April 04, 2019) Disponible en français