TB8-07861

RAD File / Dossier de la SAR : TB8-07861 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 27, 2019 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person who is the subject of the appeal Clarence Fenton 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] This decision is about XXXX XXXX XXXX XXXX (the Appellant), who is a citizen of Antigua and Barbuda. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He alleges that he was a victim of threats by a criminal named XXXX XXXX, and makes his claim under s. 97 of the Immigration and Refugee Protection Act (IRPA) based on risk to life. The RPD found that his allegations lacked credibility and also that he failed to rebut the presumption that state protection is available to him. Based on my review of the Appellant's arguments, the RPD reasons and the record, I find that adequate state protection is available to him. DECISION [2] After considering his arguments and all of the evidence, I dismiss the appeal and find that the Appellant is not a Convention Refugee or a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. BACKGROUND [3] The Appellant, a 27-year-old man, claims that he was threatened by a man named XXXX XXXX because the Appellant was friends with XXXX XXXX ex-girlfriend XXXX. He alleges that XXXX XXXX threatened to kill him at a marketplace in St. John's, made threatening hand signs when he saw him on another occasion, and also told XXXX that he was going to kill him. The Appellant claims that he reported the threats to the police, and that the police told him that they would talk to him, although there was nothing they could do since XXXX XXXX hadn't actually done anything. When he ran into the police officer the following week, the officer told him that he had spoken to XXXX XXXX, who denied any threats, but that the Appellant should stay away from him since he was known to police. The Appellant states that because he knew there would be no help from the police, he saved money to travel to Canada where he could be safe. He made a refugee claim here on October 4, 2016. [4] The RPD heard his claim on February 14, 2018, and in its oral reasons dated the same day it found that his claim lacked credibility because of inconsistencies and omissions in his evidence, and that he did not rebut the presumption of state protection. It therefore rejected his claim for protection. ISSUES [5] The Appellant has now appealed to the Refugee Appeal Division (RAD). He has not provided new evidence. He requested an oral hearing, but has not provided new evidence, and I therefore have no basis to hold one under s.110(6) of the IRPA. He asks that the RAD find that the RPD erred and grant his claim or, in the alternative, send his claim back to the RPD for redetermination. He argues that the RPD erred in imposing a higher standard of proof by requiring proof that he would be persecuted; that it was microscopic and should have accepted his reasonable explanations for any inconsistencies; and that it should have accepted that the Appellant reported the threats to the police and that he was unable to obtain a report from them. [6] Because I find that the issue of state protection is determinative of the Appellant's claim, I will not address the RPD's credibility findings or the Appellant's arguments about these findings. 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, including the recording of the hearing. 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 or a person in need of protection 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 claimed that he unsuccessfully tried to get help from the police, he had failed to provide sufficient clear and convincing evidence to rebut the presumption of state protection in Antigua. It found that the alleged response of the police made sense, since no violence actually took place, and most of the claimed threats were by way of hand gestures. Further, the Appellant's allegations indicate that state protection is available against XXXX XXXX, since the Appellant testified and stated in his Basis of Claim (BOC) that XXXX XXXX had been arrested by the police for drugs. [11] The Appellant argues that the RPD erred because it refuses to accept that he reported the incident to the police but no arrest was made, and he requested a copy of the police report but it was unavailable. [12] Based on my review of the RPD reasons, the record, and the Appellant's arguments, I find that the RPD did not err in its finding regarding state protection. Presumption of State Protection and Contextual Approach [13] 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, his efforts to seek protection, the response of the authorities, and the country conditions. Personal situation of the Appellant [14] The Appellant is a man who alleges that he was subject to threats by XXXX XXXX. He does not raise any particular circumstances that make him vulnerable or would make it difficult for him to access state protection. Appellant's efforts to seek protection and response of the authorities [15] One of the factors that I must consider is whether the Appellant has approached the state for protection and whether he has exhausted all of his available courses of action. As discussed above, the Appellant claims that he reported the threats to the police but that they did not take any action except for talking to XXXX XXXX. Even if I accept that the report was made and this was the outcome, I find that the Appellant did not exhaust all of his available courses of action. As noted in his BOC, he did not follow up with the police formally, but only ran into the police officer who took his report when he was at the phone company with his aunt. He made no attempt to follow up with the police, such as asking to speak to a higher-ranked officer. Further, the Appellant claimed that there were additional threats by XXXX XXXX after the encounter with the police officer, but he did not attempt to follow up and make a further report. Identity of the persecutor [16] The alleged persecutor is a person known as XXXX XXXX. The Appellant testified that he did not know his real name. He provided little additional information about him except that he is known to the police and may have been arrested in relation to drugs. There is no allegation that he is connected to the police or the authorities. Country conditions evidence [17] The country conditions evidence suggests that Antigua does offer state protection to victims of crime. I find that the RPD erred in failing to address the country conditions evidence about state protection in Antigua and Barbuda, but that this can be remedied by the RAD. [18] There is a presumption that unless the state is in a state of complete breakdown, it is capable of providing protection to its citizens. This presumption can be rebutted by clear and convincing evidence of the state's inability to protect. The Appellant bears the burden of persuading the trier of fact that state protection is inadequate, and the burden of proof required to establish this is directly proportional to the level of democracy in the state in question. [19] The National Documentation Package (NDP) for Antigua and Barbuda states that it is a functioning democracy, with free and fair elections.2 It has a functional security force and civil authorities maintain effective control over security forces, which include the police; the government has taken steps to prosecute and punish those who have committed human rights abuses; and impunity was not a widespread problem.3 As a result, I find that the burden faced by the Appellant in establishing that state protection is inadequate is relatively heavy. [20] The Appellant's only evidence regarding the state's inability to protect him relates to his allegation that he made a report to the police and that they did not follow up except for speaking to XXXX XXXX. As discussed above, I have found that he has not taken all steps reasonable in the circumstances to pursue and follow up with the police. He did not formally follow up with the police, try to speak to a higher-ranking officer, or make another police report after alleged further threats by XXXX XXXX. [21] The Appellant argues that the RPD should have accepted that he reported the incident to the police but that a report was not available to him when he asked for documentation. I find that the RPD did not rely on or question the credibility of his allegations about the police on the basis that there was no corroborating police report, and that this issue is not relevant to its finding regarding his efforts to seek state protection. The RPD accepted his allegation that he made a report to the police, but found that even on the basis of the Appellant's own allegations, he had not established that he had exhausted all of his available courses of action regarding state protection, and I agree with this finding. [22] The Appellant stated in his BOC and testified that he believed that XXXX XXXX had been arrested, which suggests that the police are willing and able to take action against him. He cited no objective country conditions evidence regarding the inadequacy of state protection in Antigua. Based on this evidence, I find that the Appellant has not met his burden of providing clear and convincing evidence to rebut the presumption of state protection, and that this is determinative of his claim. CONCLUSION [23] On the basis of the findings outlined above, I dismiss the appeal and confirm the decision of the RPD that the Appellant is not a Convention Refugee or a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Cynthia Pay" Cynthia Pay June 27, 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 3, National Documentation Package (NDP) for Antigua (31 March 2017), Item 2.1. Antigua and Barbuda. Country Reports on Human Rights Practices for 2016. United States. Department of State. 3 March 2017. 3 NDP for Antigua (31 March 2017), Item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-07861 RAD.25.02 (April 04, 2019) Disponible en français 7 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