TB8-06393

RAD File / Dossier de la SAR : TB8-06393 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, ON Appel instruit / entendu à Date of decision June 24, 2019 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person(s) who is(are) the subject of the appeal M. Mary Akhbari Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This decision is about XXXX XXXX XXXX XXXX (the Appellant), who is a citizen of Antigua and Barbuda. She is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She alleges that she was a victim of physical and sexual assault by her stepfather when she was a minor. The RPD accepted her allegations of abuse by her stepfather, but rejected her claim because it found that she did not rebut the presumption of state protection. [2] This appeal therefore concerns whether adequate state protection is available to the Appellant in Antigua and Barbuda. I find that, based on the Appellant's personal circumstances, including her age, gender, and the nature of the abuse, adequate state protection is not available to her, and that she is a Convention Refugee. DECISION [3] After considering her arguments and all of the evidence, I allow the appeal, set aside the RPD's determination and substitute my own determination that she is a Convention Refugee pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA or Act). BACKGROUND [4] The Appellant, a 20-year-old woman, claims that she was physically and sexually abused by her stepfather, XXXX XXXX XXXX. She reports that her mother was in a longstanding relationship with him, and that he was also physically abusive toward her. The Appellant claims that her mother gave her a plane ticket so she could flee his abuse. She travelled to Canada in XXXX 2015, when she was 16 years old. She initially stayed with her grandmother here, and then moved to her aunt's home. When her aunt learned that she had overstayed her visa and was out of status, she asked her to leave the house, and the Appellant moved to a women's shelter. The staff there advised her of the refugee claimant process, and the Appellant made a claim here in May, 2017. [5] The RPD heard her claim on January 30, 2018 and in its reasons dated the same day it found that although she was a generally credible witness, and had established her allegations of abuse, she did not rebut the presumption of state protection, and that adequate state protection was available to her. It therefore rejected her claim for protection. ISSUES [6] The Appellant has now appealed to the Refugee Appeal Division (RAD). She has not provided new evidence or requested an oral hearing, and I have no basis to hold one. She asks that the RAD find that the RPD erred and grant her claim or, in the alternative, send her claim back to the RPD for redetermination. She argues that the RPD erred in its finding regarding state protection, as it failed to address the effectiveness of state protection and was selective in its analysis of the objective evidence regarding state protection for victims of domestic violence in Antigua and Barbuda. ANALYSIS Role of the RAD [7] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of evidence. [8] In this appeal, the RPD's findings are based on the Appellant's evidence and the rest of the record, which I could clearly review and understand. I do not find that the RPD was in an advantageous position in assessing this evidence, and as a result, I will apply a correctness standard. Did the RPD err in its finding regarding state protection? [9] Part of the test to determine whether or not someone is a Convention refugee is whether they can seek protection from the authorities in their own country. In other words, is state protection available? When there is a functioning government, there is a legal presumption that states are able to protect their own citizens. [10] The RPD found that the Appellant had not rebutted the presumption of state protection. It found that, although the Appellant did not attempt to seek state protection in Antigua, she was a minor when the abuse took place and when she left Antigua, and that the agent of persecution was her mother's common-law spouse. The RPD found that these circumstances, in conjunction with the Gender Guidelines, which provide that survivors of violence against women may have good reason for not seeking state protection, provided a reasonable explanation for the Appellant's failure to seek state protection in Antigua. [11] The RPD found based on the objective country conditions evidence, however, that adequate state protection is available to the Appellant in Antigua. Antigua is a functioning democracy, has a functional security force, and laws against domestic violence. Although domestic violence is still a serious problem in Antigua, there is a new Domestic Violence Bill, which provides for orders of protection; that there are policies making it mandatory for police to respond to every complaint alleging domestic violence; and a Directorate of Gender Affairs has been established, which provides support for survivors of domestic violence as well as training for the police and other front line service workers and a crisis hotline for victims. [12] The Appellant argues that the RPD did not assess how effective the measures it cited were at the operational level, and that it was selective in its assessment and ignored contrary evidence from the National Documentation Package (NDP) on Antigua and Barbuda. [13] Based on my review of the RPD reasons, the record, and the Appellant's arguments, I find that the RPD did err in its finding regarding state protection, as it failed to consider the particular circumstances of the Appellant, including her age, gender, psychological state, nature of the abuse, as well as the fact that her agent of persecution was her mother's common-law spouse. Presumption of State Protection and Contextual Approach [14] There is a presumption that the state is capable of protecting its citizens, except in cases where the state is in a complete state of breakdown. To rebut this presumption, a claimant must persuade the Board with clear and convincing evidence that establishes on a balance of probabilities that state protection is inadequate. The onus is on the Appellant to establish that protection is inadequate. In my assessment of whether the presumption of state protection has been rebutted, I must take a contextual approach, considering factors such as the specific risk alleged, the identity of the persecutor, the Appellant's personal situation, her efforts to seek protection, the response of the authorities, and the country conditions. Personal situation of the Appellant [15] The Appellant is a young woman who alleges that she was subject to physical and sexual abuse by her stepfather/mother's common-law spouse while in her teens. She fled Antigua to come to Canada when she was only 16 years old. The RPD accepted her allegations of physical and sexual abuse by her stepfather, and I see no obvious reason to find that they were in error in doing so. [16] I find that the Appellant's personal circumstances are a significant factor in my assessment of whether state protection is available to her. I consider the Gender Guideline in my analysis. She is a young survivor of physical and sexual abuse by her stepfather, and I find that this is a factor that makes her more vulnerable. Her mother is still in a common-law relationship with the step-father and they now have a child together, so the Appellant would not be able to return to her family home in Antigua. She has limited education, as she left home as a teenager, and has not completed secondary school.2 According to a report by a psychiatrist, Dr. XXXX XXXX, the Appellant suffers symptoms consistent with XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX as a result of the abuse, and required accommodation for her psychological condition during her RPD hearing.3 I find that the particular circumstances of the Appellant, including her age, gender, nature of the persecution she faced, the context in which it took place, and her psychological state all make it much more difficult for her to access state protection, to the extent that adequate state protection is not available to her. Appellant's efforts to seek protection and response of the authorities [17] One of the factors that I must consider is whether the Appellant has approached the state for protection and whether she has exhausted all of her available courses of action. As discussed above, the Appellant did not seek state protection in Antigua, but as the RPD found, and with which I agree, she was a minor when the abuse took place and a victim of sexual abuse by her mother's common-law spouse, which made her failure to seek protection from the state reasonable. Identity of the persecutors [18] The persecutor in the Appellant's case is her stepfather, who still lives with her mother. This is a factor that I consider in my analysis of state protection. The Appellant alleges that he is also friends with the police, but I find that this issue was not substantially canvassed at the RPD hearing, and that it made no finding on this specific allegation. I find that this allegation has not been established, but at any rate, it is unnecessary for me to address it, as other factors that I consider are a sufficient basis for me to find that state protection is not available to the Appellant. Country condition evidence [19] The country condition evidence suggests that Antigua does offer state protection to women victims of violence, but that the protection provided has flaws and limitations. [20] As noted by the RPD, Antigua is a functioning democracy, has a functional security force and laws against domestic violence, including a Domestic Violence Bill. There are policies making it mandatory for police to respond to every complaint alleging domestic violence; and a Directorate of Gender Affairs has been established, which provides support for survivors of domestic violence as well as training for the police and other front line service workers and a crisis hotline for victims.4 [21] On the other hand, non-governmental organization representatives report that the police response to domestic violence is "not effective," it takes police a long time to respond to domestic violence calls, and there is a low level of confidence in the police with respect to their ability to address domestic violence and their attitudes regarding violence against women.5 [22] The question of whether state protection is adequate depends on a number of factors, including the particular circumstances of the claimant and their profile. As discussed above, the Appellant is a young female survivor of sexual abuse by her stepfather, who still lives with her mother, and the abuse took place when she was a minor. She has limited education and has been found by a psychiatrist to suffer from psychological symptoms as a result of the abuse. [23] While state protection need not be perfect, it must be adequate, and whether state protection is adequate is context-specific. In the case of the Appellant, I find that the flaws in Antigua and Barbuda's ability to provide state protection are exacerbated by her specific marginalizing circumstances, which include her gender, nature of the violence, age, level of education and mental health. As a result of the Appellant's specific circumstances, I find that state protection is not available to her. Internal Flight Alternative (IFA) Two-prong Test for Internal Flight Alternative [24] In order to determine whether a viable IFA exists, the RAD must consider the two-prong test outlined in Rasaratnam6 and Thirunavukkarasu:7 (a) The RAD must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted in the part of the country to which it finds an IFA exists;8 and, (b) Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the Appellant, for him to seek refuge there.9 [25] Both prongs must be satisfied to find that the claimant has an IFA. The Appellant bears the burden of proof to show that he or she faces a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA area. [26] In the Appellant's case, I find that there is a reasonable chance that the Appellant faces persecution in the entire country. Antigua is a very small country, comprising only 280 square km.10 During the hearing, she testified that she would not be able to live in St. Paul, a different city from where the agent of persecution currently lives, since it is a very small island, and she believed that her stepfather would be able to find her there. As noted above, the Appellant is a young woman survivor of sexual abuse with limited education and no real work experience of note. She cannot return to her family home because her agent of persecution lives there. I find that these factors would also make relocation unreasonable in the Appellant's specific circumstances, and that she does not have a viable IFA in Antigua and Barbuda. CONCLUSION [27] On the basis of the findings outlined above, I allow the appeal and substitute my own determination that the Appellant is a Convention Refugee pursuant to paragraph 111(1)(b) of the IRPA. (signed) "Cynthia Pay" Cynthia Pay June 24, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD record, Exhibit 1, p. 49. 3 Exhibit RPD-1, RPD record, Exhibit 5, pp. 81 to 84. 4 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Antigua (31 March 2017), Item 5.1. Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR). ATG105419.E. 17 February 2016. 5 Ibid., NDP for Antigua (31 March 2017), Item 5.1 at pp. 6 to 7. 6 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710. 7 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 8 Rasaratnam v. M.E.I, [1992] 1 F.C.706 (C.A.) at 710. 9 Thirunavukkarasu v. M.E.I., [1994] 1 F.C.589 (C.A.). 10 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Antigua (31 March 2017), Item 1.3. Antigua and Barbuda. The World Factbook. United States. Central Intelligence Agency. 12 January 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06393 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français