TB5-12127

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 : TB5-12127 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 XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 18, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stella I Anaele Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. XXXX XXXX XXXX is the designated representative for the Appellant as the Appellant is a minor. The Appellant has not submitted new evidence in support of her appeal and does not request an oral hearing. She asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute its own determination. In the alternative, the Appellants ask the RAD return the matter to a differently-constituted panel of the RPD for re-determination. 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, upon return to Austria, she will be kidnapped by her father and forced to undergo female genital mutilation. [4] The Appellant's claim for refugee protection was heard on October 28, 2015. By a decision of October 30, 2015, the RPD rejected the claim. The RPD found that the Appellant failed to rebut the presumption of state protection in Austria. [5] The Appellant submits that the RPD erred in its state protection analysis and ignored evidence. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? While the Appellant makes no argument with respect to the role of the RAD, the RAD notes that the Federal Court, in Huruglica,1 considered the appropriate relationship between the RAD and the RPD. It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellant's refugee claim. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes. [7] Justice Phelan stated the following in Huruglica: 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. 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." [8] Considering the recent jurisprudence, including the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Merits of the appeal [9] The Appellant refers to two decisions of the Federal Court and submits that the question that must be considered in this case is regarding the factual standard of protection that is considered to be adequate in Austria and whether the factual standard is being used to provide protection to a person of African descent residing in Austria. She argues that Austria has not made a credible earnest attempt to provide protection for the African community in Austria and, according to the Federal Court, best efforts to reach a standard of operational state protection is not state protection, let alone adequate state protection. She contends that, based on the available documentary evidence and country information, there is no adequate protection for a person of African heritage in Austria. Further, she submits that the RPD applied irrelevant and inaccurate evidence in reaching a factual conclusion which renders it palpably erroneous. [10] The Appellant submits that the RPD did not take into consideration that she is a child of African descent. She argues that she does not receive the same treatment as a white Austrian and the RPD did not differentiate this or consider the protection available for persons of African descent living in Austria prior to reaching its decision. She submits that the RPD mischaracterized her profile by holding her to the standard of an adult (her mother) and based its determination on the actions and expectations of her mother. She alleges that the RPD has not properly assessed the risk to her because the risk has been mischaracterized. She further alleges that the RPD's expectation of reporting to police is unreasonable and constitutes a reviewable error. [11] The Appellant submits that the RPD failed to deal with the evidence in her claim. She argues that the RPD made very selective usage of an Amnesty International (AI) report by relying on only two paragraphs of the 60 page report to support its conclusion while ignoring hundreds of paragraphs that contradict its conclusion. She notes that while the report states the law prohibiting female genital mutilation/cutting, it does not say anything about the implementation of the law. She also notes that the report indicates that law enforcement officials or representatives of judicial bodies have failed to provide the same quality of service to members of ethnic minorities as would routinely be provided to white Austrians and AI concluded that there is institutionalized racism in Austria. The Appellant notes that the report states that there is considerable evidence to suggest that the Austrian police have engaged in widespread discriminatory ethnic profiling over the past decade. She notes that the report states that there is the failure of law enforcement agencies routinely to extend the same level of protection to members of ethnic minorities when they are the victims of crime. The Appellant submits that the RPD overlooked the United States Department of State report because it inconveniently contradicted a conclusion that the RPD was determined to reach no matter what the contrary evidence. She notes from the report problems involving discrimination by police and justice authorities. She points out from the report that NGOs reported Africans living in the country experienced verbal harassment or were subject to violence in public. [12] Following a review of the evidence in the record, the RAD finds that the RPD did not err in its state protection analysis. It analysed and assessed the evidence and made well-reasoned findings. It gave adequate regard to the evidence in the record, considered the jurisprudence, and considered the Appellant's profile as a minor with Austrian citizenship and of African heritage. [13] The Appellant argues that Austria has not made a credible earnest attempt to provide protection for the African community; however the evidence does not support her contention. The United States Department of State reports that, in Austria, civilian authorities maintained effective control over the police and army, and the government had effective mechanisms to investigate and punish abuse and corruption. Also reported is that the criminal courts are responsible for investigating any violations of the law by the police and there were no reports of impunity involving the security forces during 2014. This evidence is reflective of Austria's effort and success in ensuring an effective, corruption and abuse free, police force. Although the report indicates that NGOs continued to criticize the police for allegedly targeting minorities for frequent identity checks, it also indicates that racial sensitivity training for police and other officials continued with NGO assistance. This evidence reflects Austria's continued commitment to improve its police force and curb unfair practices. This commitment is also reflected by Freedom House assigning Austria the highest scores in its freedom rating, civil liberties and political rights categories. Freedom House also indicates that Austrian residents are usually afforded equal protection under the law; however, immigration has fueled some resentment toward minorities and foreigners. [14] The RAD acknowledges, as did the RPD, that discrimination against minorities exists in Austria. Documentary evidence indicates that NGOs reported Africans living in the country experienced verbal harassment or were subject to violence in public. In some cases citizens stigmatized black Africans for perceived involvement in the drug trade or other illegal activities. However, also indicated is that the government continued training programs to combat racism and educate the police in cultural sensitivity. [15] With respect to Austria taking adequate measures to combat racial discrimination in order to combat all forms of such discrimination, documentary evidence indicates that the Austrian legal system provides for a whole range of legal instruments for law enforcement bodies and courts to effectively combat right-wing extremist, xenophobic, anti-Semitic and racist offences. Besides consequent prosecution, a range of preventive measures are being applied. The authorities give special attention to those groups within the right-wing extremist scene who seek more public awareness in the form of demonstrations or public events. Many pertinent events were prevented in advance or controlled within the legal boundaries in order to secure a safe course of the gatherings. This is further evidence of Austria's efforts and successes in providing effective policing and curbing racial discrimination. A reflection of Austria's success in dealing with racial discrimination is the absence of this as an issue of concern in Amnesty International's annual report on Austria for 2014/2015. The RAD finds that the Appellant's argument that Austria has not made a credible earnest attempt to provide protection to persons of African descent has no merit, as the evidence indicates otherwise. [16] Further, the RAD finds that the Appellant's argument that the RPD applied irrelevant and inaccurate evidence in reaching its conclusion also has no merit. The Appellant fails to point out the inaccurate and irrelevant evidence she alleges the RPD applied. Moreover, the RPD's reasons clearly indicate that it relied on the evidence in the National Documentation Packages for Nigeria and Austria dated 17 July 2015 and the documents the Appellant disclosed. The National Documentation Packages the RPD relied on, and that the RAD relies on, are the latest available packages. [17] The Appellant has submitted that the RPD mischaracterized her profile and did not take into consideration that she is a child of African descent. The RAD does not agree. The RPD accurately characterized the Appellant as a child with Austrian citizenship of African descent at risk of kidnapping and forced genital mutilation by her father. It not only considered her profile, it focused on it. For example, the RPD states that, while it acknowledges the shortcomings in the Austrian judicial system, when it comes to child abuse and genital mutilation, the United States Department of State report indicates that the police are willing and effective in applying the law. Furthermore, it addressed the issue of racial discrimination in Austria. It is clear that the RPD focused on the Appellant's profile, considering the risk she alleges. [18] The Appellant has submitted that the RPD's expectation of reporting to the police is unreasonable. The RAD disagrees. [19] It is important to note some state protection principles set out by the Courts. A refugee claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state. 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. Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the refugee claimant to approach the state for protection in situations where state protection might be reasonably forthcoming. 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. The refugee claimant'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 refugee claimant must have done to exhaust all courses of action open to them. In a functioning democracy, a refugee claimant 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. A refugee claimant 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 refugee claimant's interactions with the authorities. [20] The RPD noted that the Appellant's mother did not approach police in Austria because she heard from individuals in the African community that there is discrimination against Africans in Austria. She also indicated that she heard police would not help her because she does not speak German. However, the RAD finds, based on the documentary evidence, some of which is noted above, that state protection would have been reasonably forthcoming had the Appellant's mother reported her problem to police in Austria. The evidence establishes that Austria is a functioning democracy with the willingness and apparatus necessary to provide protection to its citizens. The RPD was not wrong in its view that had the Appellant's mother sought state protection in Austria, she would have received an adequate response. The RPD was not wrong to find that the Appellant's mother, and by extension the Appellant, failed to take all objectively reasonable efforts to exhaust all courses of action reasonably available to her. It was not wrong to find that the Appellant's subjective reluctance to engage the state had no objective basis. The RAD agrees with these findings. [21] The Appellant has also alleged that the RPD mischaracterized her profile by holding her to the standard of an adult (her mother) and based its determination on the actions and expectations of her mother. The Appellant's argument has no merit. In assessing the adequacy of state protection, the RPD must consider the steps taken by the refugee claimant to seek protection in their home country and the refugee claimant's interactions with the authorities in their home country. In the case of a minor, especially an infant as in this case, the Board must consider the steps taken by his or her parents or caregivers. The Appellant's mother in this case is the best possible witness to support the Appellant's claim for protection. She has cared for the Appellant since birth and initiated her claim for protection in Canada. The Board cannot ignore her experience in Austria with respect to the Appellant's allegations and the RPD was not wrong to consider her experience in Austria in the determination of the Appellant's claim. [22] The Appellant has alleged that the RPD mischaracterized the risk she faces in Austria. The RAD disagrees. As noted above, the RPD clearly set out the risk the Appellant alleges she faces in Austria and conducted an analysis of the evidence regarding the availability of state protection for Austrians with that particular risk profile. It considered the issue of racial discrimination in Austria. It noted the Austrian law that prohibits female genital mutilation and cutting. It noted that there were no reports of police or judicial reluctance to pursue such cases. It noted the government's continued efforts to monitor child abuse and prosecute offenders. The RPD correctly characterized the risk the Appellant alleges to face in Austria and correctly interpreted the evidence on the availability of state protection for those who face such a risk. [23] The Appellant has alleged that the RPD ignored evidence. The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record. Notwithstanding this presumption, the Appellant argues that the RPD made very selective usage of an Amnesty International (AI) report by relying on only two paragraphs of the 60 page report to support its conclusion while ignoring hundreds of paragraphs that contradict its conclusion. However, the Appellant only presented excerpts of two AI reports to the RPD and the RPD addressed those excerpts in its reasons. The RPD is unable to consider evidence that is not before it. Nonetheless, the RPD does acknowledge from the excerpts, information about institutional racism in the Austrian justice system and discriminatory practices in law enforcement structures. The RAD notes that the 60 page AI report the Appellant refers to is dated April 2009 while the AI report in the National Documentation Package is from 2015. As noted above, a reflection of Austria's success in dealing with racial discrimination is the absence of this as an issue of concern in AI's annual report on Austria from 2015. The RAD gives more weight to AI's 2015 report as it more accurately reflects the current situation in Austria. CONCLUSION [24] After reviewing all the evidence in the record the RAD has reached the same conclusion as the RPD. The RAD concurs with the RPD that the Appellant has failed to rebut the presumption of state protection. The RAD finds that the Appellant has adequate state protection available to her in Austria. The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [25] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella March 18, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :