TB5-05815

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 : TB5-05815 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(A.K.A. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 14, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Sukhram 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 K. Cowman Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who is a citizen of Trinidad and Tobago, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he fears returning to Trinidad and Tobago (Trinidad) because he will be persecuted by members of a group called the Jamaat al Muslimeen due to the Appellant's involvement in the XXXX XXXX XXXX XXXX. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard on March 30, 2015. A negative decision was rendered in writing on May 13, 2015. The RPD found that the Appellant did not have a well-founded fear and, on a balance of probabilities, would not face a risk to his life, or a risk of cruel or unusual punishment or treatment, or a risk of torture should he return to Trinidad. [5] The Appellant submits that the RPD's findings were not reasonable. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of 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] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.2 [8] Although the Appellant states in his affidavit3 that he is not relying on any new evidence, counsel for the Appellant has made reference in the Memorandum to a book by Guy Goodwin Gill. The book is titled Non-refoulment and the new asylum seekers; however, counsel has not provided the RAD with a copy of this book and has not requested it be allowed as new evidence. Therefore, the RAD cannot consider the reference in the Appellant's memorandum to that document. Role of the RAD [9] The RAD finds that the recent Federal Court decision, in Huruglica,4 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. 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." [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [11] The Appellant argues that the RPD's findings were not reasonable. Specifically, the Appellant argues that the finding that state protection exists in Trinidad because Trinidad is a democracy is in error. [12] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown.5 [13] The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available.6 [14] To rebut the presumption of state protection, a claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens, (absent an admission by the national's state of its inability to protect that national).7 [15] A claimant who alleges that the state protection is inadequate must persuade the Board that the evidence establishes that the state protection is inadequate.8 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 the state protection is inadequate. 9 [16] Thus, the RPD is not obliged to prove that the state can offer the claimant effective protection, rather, the claimant bears the legal burden of rebutting the presumption that state protection exists by adducing clear and convincing evidence which satisfies the RPD, on a balance of probabilities.10 [17] 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.11 The Board is not obliged to prove that a state can offer its citizens effective state protection.12 [18] In the case at bar, the Appellant has shown only that he approached local police about a criminal issue and, according to his testimony, the Appellant was not given any protection, nor can he expect any protection. Counsel for the Appellant writes13 that the fact that a country is a democracy is not a guarantee of state protection. However, the RAD notes that no state can guarantee perfect protection.14 Local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of the state's inability or refusal to provide protection.15 The Appellant has provided insufficient evidence to clearly and convincingly show the RAD that state protection does not exist in Trinidad. [19] It may be seen that as recently as 2006, after the Appellant was deported from the United States of America to Trinidad, that the Appellant returned to working with the XXXX XXXX XXXX and again encountered difficulties with the same Muslim competition which caused him problems in 1989. The Appellant testified at his hearing that, during Carnival season (Mid-February, 2006), he was threatened by members of Abu Bakr's group. The Appellant testified that during the XXXX years that he was out of Trinidad, the XXXX he worked with continued to operate with different leaders. The Appellant testified that he wanted to move the XXXX to a safer place and that this issue resulted in conflict with others. During this time, the Appellant testified that there was "pull and tug" amongst the members of the XXXX regarding the possible relocation of the XXXX XXXX Abu Bakr's group wanted to have the Appellant's XXXX moved out of their neighbourhood. The Appellant was threatened personally beginning in January 2006. Members of the Bakr group approached the Appellant and told the Appellant that he should "get out of the way" and leave the XXXX because Bakr's group supported another XXXX. The Appellant reported the incident to the Besson St. Police station sometime after Carnival. The police officer to whom the Appellant reported told the Appellant that there were lots of problems with the Muslim group and that the police station was only a two man station so the Appellant should look after himself. [20] Local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of state inability or refusal to provide protection.16 The burden of proving that the broader pattern exists rests with the Appellant. It is the Appellant's burden to show clearly and convincingly that the state cannot offer him protection. The Appellant complained only to a local constable at a two man station in his neighbourhood in Trinidad. The Appellant has failed to provide evidence that he pursued state protection beyond that local constable. [21] Counsel for the Appellant cites Mitchell17 where the Court stated that "the real capacity to protect is what has to be assessed, not the fact that the state has good intentions and made legislations to protect...." The RAD must point out that this case18 does not apply here. The case does not place the onus on the Board to prove that state protection does or does not exist; that burden remains with the Appellant. The case simply reiterates the fact that the Board must properly assess the real capacity to protect, as opposed to regurgitating the pieces of legislation passed by the state in its efforts to protect. The RPD wrote in its decision about the many programs initiated in the last few years by the Trinidad government to combat crime. These programs include the purchase of new equipment for members of the police force, more training, more constables, community safety programs and more. The Appellant has not provided clear and convincing evidence that these programs are not working and are not now effective, as is his onus. [22] The RAD finds that the Appellant has failed to rebut the presumption of state protection. As the RAD finds that state protection does exist in Trinidad, then the RAD must find that the RPD did not err in its assessment of state protection. [23] The Appellant argued that there were also errors with the RPD's findings on the issue of delay in claiming as well as the issue of whether nexus to section 96 does or does not exist. Disposition [24] The RAD has found that state protection does exist and as this is a determinative issue, the RAD finds it unnecessary to continue on the other above issues. CONCLUSION [25] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe September 14, 2015 Date 1 RPD's Record, BOC Form, pp. 24-39. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Appellant's Record, p. 25. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, paras. 54- 55. 5 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. 6 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 709. 7 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724. 8 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), paras. 20 and 24. 9 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), para. 30. 10 Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106), Near, June 9, 2011, 2011 FC 668. 11 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. The Federal Court has held that Villafranca is not inconsistent with Ward. See Velarde-Alvarez, Jorge Luis v. S.S.C. (F.C.T.D., no. IMM-194-94), McKeown, February 9, 1995. Reported: Velarde-Alvarez v. Canada (Secretary of State) (1995), 27 Imm. L.R. (2d) 88 (F.C.T.D.); Boston, Edwin v. M.C.I. (F.C., no. IMM-6554-06), Snider, December 4, 2007, 2007 FC 1271. For a contrary view see De Araujo Garcia, Debora v. M.C.I. (F.C., no. IMM-5987-05), Campbell, January 24, 2007, 2007 FC 79; the Federal Court declined to follow Garcia in Alvarez, Jaime Alejandro Tellez v. M.C.I. (F.C., no. IMM-301-08), Mactavish, August 6, 2008, 2008 FC 933. Moreover, Justice Campbell's view that the presumption of state protection can be rebutted if the claimant produces "some clear and convincing evidence" that the state has failed to effectively respond to requests for protection is inconsistent with the holding of the Federal Court of Appeal in Flores Carrillo which held that a heavier evidentiary onus is required to rebut the presumption. 12 Sanchez, Valentin Quintero v. M.C.I. (F.C., no. IMM-4478-10), Near, April 26, 2011, 2011 FC 491. 13 Appellant's Record, Appellant`s Memorandum, p.155, para 7. 14 Zalzali v. M.E.I, [1991] 3 F.C. 605 (C.A.); (1991), 14 Imm. L.R. (2d) 81; 126 N.R. 126 (F.C.A.), at 615; 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 132; Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 15 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 16 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 17 Mitchell, Sharon Marjorie Keith v. M.C.I. (F.C., no. IMM-4733-05), O'Reilly, February 7, 2006, 2006 FC 133. 18 Mitchell, Sharon Marjorie Keith v. M.C.I. (F.C., no. IMM-4733-05), O'Reilly, February 7, 2006, 2006 FC 133. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05815