MB9-30096

RAD File No. / No de dossier de la SAR : MB9-30096 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision November 23, 2020 Date de la décision Panel Anne Revil Tribunal Counsel for the person who is the subject of the appeal William Aguilar Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX is a citizen of the Dominican Republic. He arrived in Canada on XXXX XXXX, 2019, and claimed refugee protection, alleging that he risks being killed by members of a drug trafficking gang if he returns to his country. [2] The Refugee Protection Division (RPD) rejected his refugee protection claim on November 27, 2019, on the grounds that, while his allegations were credible, the documentation mentions that there is a system for protecting victims of organized crime in his country and that, by not going to the police, he had not sought his country's protection. [3] XXXX XXXX XXXX XXXX is appealing that decision and argues that he explained during the hearing why he did not go to the police, that is, because of the influence that drug traffickers have in his country and their collusion with the police. He states that the documentary evidence at Tab 7.3 of the National Documentation Package (NDP) on the Dominican Republic supports his statements. [4] The issue is therefore the following: Could XXXX XXXX XXXX XXXX receive protection from the Dominican state if he returned to his country? DETERMINATION [5] The appeal is allowed. The matter is referred to the RPD. ANALYSIS [6] The role of the Refugee Appeal Division (RAD) is to determine whether, as submitted by the appellant, the RPD made errors in its analysis. [7] In this case, the RAD is of the opinion that the RPD erred by concluding that XXXX XXXX XXXX XXXX could receive protection from the Dominican state, for the following reasons. [8] According to the case law, to be recognized as a refugee or person in need of protection, which is auxiliary protection, the refugee protection claimant must be unable to avail himself of the protection of his country of nationality. The onus is on the claimant to provide clear and convincing evidence that state protection is unavailable or that it was reasonable for him not to seek it. To determine whether the claimant took all reasonable steps, his particular situation and characteristics must be considered: "a proper state protection analysis must be individualized."1 Regarding the allegations [9] The RPD states in its reasons, in the second paragraph of the decision, that XXXX XXXX XXXX XXXX [translation] "alleges that he is wanted by the members of a gang of drug dealers. As a member of an assistance group, he allegedly tried to warn them about dealing drugs in the street. They were furious and tried to kill him. He claims that he fled his home and hid in XXXX XXXX before coming to Canada and claiming refugee protection." [10] The RPD subsequently states in its decision that it did not identify [translation] "any major implausibilities, fatal inconsistencies or inexplicable contradictions that could have led it to make a negative finding on the facts in this case," without clarifying the facts or the risk of harm that it found credible. Regarding the reasonableness of the failure to seek state protection [11] The RPD erred by concluding that XXXX XXXX XXXX XXXX could have availed himself of the protection of the Dominican state, for the following reasons. [12] XXXX XXXX XXXX XXXX is challenging the RPD's decision by pointing out that he stated that he could not request police assistance because the police have ties to organized drug crime and that he therefore could not avail himself of state protection. [13] In its assessment of whether such protection exists, the RPD stated that there is considerable documentation on state protection in the Dominican Republic, but it cited only Tab 7.2 of the NDP, specifically the passage on article 27 of the penal code establishing victim rights. [14] The RAD reviewed that document-the version in the RPD record and the one in the latest NDP-as well as the tab cited by the appellant, Tab 7.4 (not 7.3) of the NDP dated March 29, 2019. [15] It is important to recall that state protection must be analyzed at the operational level, not just the theoretical level. The fact that the penal code sets out victim rights does not mean that they are respected in practice and, accordingly, does not confirm the existence of state protection for victims of drug traffickers. [16] Furthermore, these legal provisions do not address XXXX XXXX XXXX XXXX concerns that it would be impossible for him to go to the police. [17] On this point, the RAD does not agree with the following RPD conclusion: [translation] "Since the claimant acknowledges the responsiveness of the police, the panel has no reason to believe that the police would not respond if they were called." [18] According to the documentation, the involvement of police in organized crime is well known and is part of the problem, trust in the police is low2 and police corruption is a serious problem.3 An older document cited by the appellant even states, "Sources quote the Public Prosecutor of the Santo Domingo National District as saying that police officers and soldiers have been involved in 90 percent of organized crimes committed in the Dominican Republic, particularly in 'large-scale' drug trafficking and contract killings (Diario Libre 18 Mar. 2015; Listín Diario 19 Mar. 2015)."4 [19] XXXX XXXX XXXX XXXX stated that the police would show up when they were called. He specified that they would not provide protection without financial compensation and that they could not protect people who report drug traffickers, which does not contradict the above-cited documentation. [20] The RAD concludes that, given the RPD's failure to provide more specific details about the facts that it found credible, the circumstances in which XXXX XXXX XXXX XXXX was allegedly threatened and the people who made the threats, it cannot assess whether, in light of the above-mentioned information, the victim protection system or any other measure in place in the Dominican Republic would be sufficient to protect XXXX XXXX XXXX XXXX from the risk of harm found credible by the RPD, even though the documentation is in line with the appellant's allegations concerning the absence of state protection. [21] Moreover, the RAD notes the following conclusion by the RPD: [translation] "Since the claimant acknowledges the responsiveness of the police, the panel has no reason to believe that the police would not respond if they were called. It thus concludes that the claimant's behaviour is not consistent with that of someone who fears for his life." This conclusion leads the RAD to question the RPD's finding regarding the credibility of XXXX XXXX XXXX XXXX allegations. What is more, that conclusion is not relevant to the analysis of state protection. [22] Consequently, the RPD erred by determining that since he could avail himself of the protection of the Dominican state, XXXX XXXX XXXX XXXX is not a refugee or a person in need of protection. [23] For these reasons, considering the assessment of the appellant's credibility and the assessment of state protection, the RAD is of the opinion that there is insufficient evidence on the record to make a decision on the refugee protection claim without hearing XXXX XXXX XXXX XXXX again in order to assess his credibility and, if necessary, state protection or the internal flight alternative. The RAD must therefore refer the matter to the RPD. CONCLUSION [24] Accordingly, the RAD allows the appeal and refers the matter to the RPD. (Signed) Anne Revil Anne Revil November 23, 2020 Date IRB translation Original language: French 1 Sanchez Mestre v. Canada (Citizenship and Immigration), 2015 FC 375. 2 National Documentation Package (NDP) on the Dominican Republic, July 31, 2020, Tab 7.2: Crime situation, including organized crime; state response, including effectiveness; state protection for witnesses and victims of crime (2017-June 2020). Immigration and Refugee Board of Canada. July 7, 2020. DOM200287.E. 3 NDP on the Dominican Republic, July 31, 2020, Tab 7.4: Dominican Republic. 2020 Crime and Safety Report. United States. Overseas Security Advisory Council. May 29, 2020. 4 Sources quote the Public Prosecutor of the Santo Domingo National District as saying that police officers and soldiers have been involved in 90 percent of organized crimes committed in the Dominican Republic, particularly in "large-scale" drug trafficking and contract killings (Diario Libre 18 Mar. 2015; Listín Diario 19 Mar. 2015). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-30096 RAD.25.02 (January 2020) Disponible en français 5 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 (January 2020) Disponible en français