TC0-10725

RAD File / Dossier de la SAR : TC0-10725 Private Proceeding / Huis clos Reasons and Decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 22, 2021 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the person who is the subject of the appeal Alfonso Mejia-Arias 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 (Appellant) is a citizen of Ecuador. She appeals a decision of the Refugee Protection Division (RPD) dated September 4, 2020, dismissing her claim. These are my reasons for dismissing her appeal. [2] The Appellant fears persecution from government officials and the police in Ecuador. The Appellant was being harassed and threatened for organizing and participating in anti-government protests on the XXXX XXXX regarding XXXX XXXX XXXX. She came to Canada in XXXX 2016 and XXXX 2017 but returned to Ecuador both times thinking she would have no problems in Ecuador. She returned to Canada in XXXX 2017 and sought refugee protection. [3] The RPD had doubts about the credibility of the Appellant and determined that she failed to rebut the presumption of adequate state protection in Ecuador. [4] The Appellant argues the RPD failed to consider the totality of the evidence, was wrong in some of its factual findings, and submits that there is no adequate state protection for the Appellant in Ecuador. [5] I have carried out my own assessment of the evidence to determine if the RPD made the correct decision.1 While I find the RPD made some errors in its credibility findings, I find the RPD was correct in finding the Appellant failed to rebut the presumption of adequate state protection for her in Ecuador. I find the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [6] According to the subsection 110(4) of the Immigration and Refugee Protection Act (IRPA),2 I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.3 [8] The Appellant seeks the admission of a news article, "Ecuador: Police Officers Brutally attack a Citizen in Guayaquil."4 The article satisfies the legislative requirements of subsection 110(4) of the IRPA as it is dated after the RPD decision. I find it provides new evidence, appears to be from a credible online news source, and is relevant to the question of state protection. I allow the admission of the article. [9] I dismiss the Appellant's request for an oral hearing under subsection 110(6) of the IRPA. I find the new evidence I have admitted does not fit within the parameters of subsection 110(6) as it is not central to my decision. ANALYSIS The RPD made errors in its credibility findings [10] I agree with the Appellant that the RPD made errors in its factual findings which impacted its assessment of the Appellant's credibility. [11] First, the RPD focussed on omissions in the Appellant's Basis of Claim (BOC) Narrative. The RPD noted that the Appellant did not mention that she was actively involved with the XXXX protests, was helping leaders and was leading protests herself. When asked about this, the Appellant testified that she did not consider herself one of the leaders. The RPD found this explanation not reasonable given that she is an educated person, with counsel, and the police are searching for her because of her involvement.5 The RPD also found her vague in her testimony about her role in the protests, and concluded she had embellished her role in order to explain why she could not get state protection.6 [12] In her testimony, the Appellant said that she was not the leader, but rather that she was perceived as a leader. I find her testimony was generally consistent with her BOC regarding the role she played. She was not a leader in the XXXX movement, did not organize the protests, but did help out by attending protests, distributing information and contacting people she knew. I find the RPD erred by drawing a negative inference on this point. From my own assessment of the evidence and testimony, I find the Appellant was consistent that she was not a leader of the protests, but was perceived as such by other protesters and the authorities. [13] In line with the principles set out in Maldonado,7 I find the Appellant was generally credible in her testimony about her involvement with the XXXX protests, and her fear of harm by national authorities and police in Ecuador because of her participation in XXXX protests. In other words, I accept she has demonstrated a subjective fear because of her participation in XXXX protests. The Appellant has failed to rebut the presumption of state protection in Ecuador [14] I must now assess whether her fear is objectively well-founded. The issue of state protection goes to the objective portion of the fear of persecution. If Ecuador is able to protect the Appellant, then her fear is not, objectively speaking, well-founded. [15] The RPD reviewed the National Documentation Package (NDP) for Ecuador on the issue of state protection and concluded that the Appellant failed to rebut the presumption of state protection in Ecuador. [16] The Appellant submits that there is no adequate state protection for her in Ecuador. She argues that just because the state is in control of the territory of Ecuador, this does not necessarily mean that its citizens are protected. She states that convicting some perpetrators does not make the state in full control. She notes that it is unreasonable for her to seek state protection when the state is the agent of persecution. [17] In considering the adequacy of state protection for this particular Appellant, I note that she fears persecution or risk of harm from XXXX XXXX XXXX XXXX, the XXXX of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who sent her an email telling her to pay her outstanding loan. She also fears members of the police because of her participation in XXXX protests. [18] The Appellant failed to seek protection from the State authorities in relation to her fear of the police. I note that her father reported a crime to the Specialized Prosecution Office in XXXX on XXXX XXXX, 2020, when police and other agents on motorcycles followed the taxi he was in and broke the taxi window.8 The Appellant's mother reported to the Specialized Prosecution Office in XXXX on XXXX XXXX XXXX 2020 when the mother was harassed by XXXX XXXX and other police officers, asking about the Appellant.9 The mother also reported to the police on XXXX XXXX, 2020, that her bag, documents and money were stolen by someone on a motorcycle.10 These documents indicate to me that the Appellant's father and mother both filed complaints to the Specialized Prosecution Office in XXXX about the actions of Officer XXXX XXXX and other police, who the Appellant fears. There is no evidence that anything has happened to them or that they received any threats since they made these reports. This leads me to conclude that the mother and father were of the view that a complaint about police conduct to the national prosecuting authorities was a reasonable action to take. In other words, the mother and the father did avail themselves of state protection. [19] I have considered all of the objective documentary evidence submitted by the Appellant to the RPD. I note the following: * During the XXXX 2016 XXXX demonstrations, police used excessive force to disperse the group.11 * An article in El Universo dated XXXX XXXX, 2019, states that XXXX XXXX. of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Provincial Court of Justice overturned his conviction.12 * In the XXXX 2019 demonstrations, police used excessive force to disperse the XXXX and protestors.13 * In September 2020, police officers brutally attacked a citizen in Guayaquil.14 * An undated article talks about the political persecution of XXXX at the XXXX XXXX of Ecuador.15 [20] I accept the documents submitted by the Appellant confirm that there continue to be significant human rights issues in Ecuador, including reports of torture and abuse by the police. However, I find that this alone is insufficient to rebut the presumption of state protection in this case. [21] In addition, I find the objective documentation indicates that the state is making efforts to hold police who use excessive force to account. For example, a special prosecutorial unit was set up in 2010 to investigate and prosecute cases documented by a truth commission. While I agree with the Appellant that 68 extrajudicial executions between 1984 and 2008 is concerning, the fact that a special unit is making some headway in prosecuting individuals for these crimes indicates that the state is making efforts for accountability. The RPD highlights other successes mentioned in the NDP for Ecuador of March 31, 2020 in paragraphs 28 to 31 of its decision. For example, the administration is conducting better training programs for police on human rights, citizens can file complaints against the police to a number of places, including the the Public Prosecutor's office, and the Ombudsman.16 [22] I have reviewed the most recent NDP for Ecuador dated April 31, 2021. I find it by and large provides similar information as the NDP Package considered by the RPD. It confirms that Ecuador is a democratic country and not a broken or fragile state. Like many countries, it has issues with police corruption, police response to protests and demonstrations and with the police use of excessive force. Objective evidence indicates that Ecuador is making efforts to keep the police in check. The mere fact that the state's efforts are not always successful does not, on its own, rebut the presumption of state protection. [23] The Appellant is of the view that as the state is the agent of persecution, it is not reasonable to believe that the state can provide the Appellant protection. I find this proposition incorrect. The assessment of state protection requires a consideration of the objective documentation, and the particular circumstances of this case. Given the objective documentation I have reviewed and the fact that her parents reported police misconduct to the Specialized Prosecution Officer, I find the evidence leads me to conclude that there is adequate state protection in Ecuador. Here, the Appellant did not make any effort to file a report with the police, or more specifically, with other state actors who are involved in protection of citizens, such as the Attorney General and the Ombudsperson. [24] The Appellant is required to provide clear and convincing evidence of the state's inability to protect her. I find the Appellant has failed to rebut the presumption of state protection in Ecuador. CONCLUSION [25] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Madeleine Schwarz Madeleine Schwarz June 22, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Exhibit P-2, Appellant's Record, pp. 42-43. 5 Exhibit RPD-1, RPD Record, RPD Reasons, p. 6, para. 17. 6 Exhibit RPD-1, RPD Record, RPD Reasons, p. 7, para. 18. 7 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.) 8 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 124 - 125. 9 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 134 - 135. 10 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 132 - 133. 11 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 174 - 175. 12 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 172 - 173. 13 Exhibit RPD-1, RPD Record, Exhibit 6, pp. 161 - 164; Exhibit 7, pp. 178 - 179. 14 Exhibit P-2, Appellant's Record, Application for New Evidence, at pp. 42 - 43. 15 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 157 - 160. 16 Exhibit RPD-1, RPD Record, RPD Reasons, pp. 9 - 12, paras. 28 - 31, footnotes 20 - 30. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC0-10725 RAD.25.02 (May 19, 2021) 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 (May 19, 2021) Disponible en français