VB9-09630

RAD File / Dossier de la SAR : VB9-09630 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXa.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision January 4, 2021 Date de la décision Panel Paula Faber Tribunal Counsel for the person who is the subject of the appeal Karen Klouth 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 XXXX (a.k.a XXXX XXXX XXXX XXXX) (Appellant) is a citizen of Venezuela and Italy. He is appealing a decision of the Refugee Protection Division (RPD) made on November 21, 2019, rejecting his claim for refugee protection. [2] The Appellant is opposed to the current regime in Venezuela. He belonged to a pro-democracy group and participated in protests, demonstrations, and other events against the government. [3] He was arrested by members of the National Guard and threatened by people identifying themselves as colectivos. [4] The Appellant is a citizen of Italy through his mother. He decided to move to Europe because of the harassment and threats in Venezuela. He moved to Spain in 2015 and remained there until coming to Canada in 2018. [5] While in Spain, he received telephone threats where he was called a derogatory term used in Venezuela by sympathizers of the government to refer to people from the opposition. [6] The Appellant fears that if he moves to Italy, he will be targeted by pro-Maduro supporters operating in that country. [7] The RPD found that the Appellant failed to rebut the presumption of state protection in Italy and rejected his claim for refugee protection. [8] The Appellant argues that the RPD breached natural justice and procedural fairness because of the short length of the RPD hearing. It is argued that the RPD had pre-determined the outcome of the hearing. [9] The Appellant requests that the Refugee Appeal Division (RAD) allow the appeal and find that he is a Convention1 refugee or a person in need of protection. DETERMINATION [10] For the reasons that follow, 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, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act2 (IRPA). ANALYSIS [11] I have conducted an independent assessment of the evidence and arguments, and I find that the RPD's decision is correct. [12] Appellants and claimants must establish their refugee claims against each of their countries of nationality. In this case, the RPD was correct in determining that the Appellant had failed to rebut the presumption of state protection in Italy. [13] To expand upon this, the Appellant must show that he is a Convention refugee with respect to all countries of nationality. Section 96(a) of the IRPA3 specifically provides: 96 A Convention refugee is a person who ... (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries. [14] A refugee claimant must therefore demonstrate that he has a well-founded fear of persecution in all countries of nationality before he can be conferred refugee protection in Canada. Consequently, the RPD is not required to consider the fear of persecution or availability of protection in the second country of citizenship once it has been determined that the claimant does not have a well-founded fear of persecution in the first. Italian citizenship and claim against Italy [15] The Appellant's citizenship in Italy is established through his testimony, statements in his Basis of Claim (BOC) Form and a copy of his valid Italian passport.4 [16] The Appellant has argued that his case is complex because it involves two countries, Venezuela and Italy. While it is true that the Appellant is a citizen of two countries, I do not agree that his case is complex. [17] I find that the RPD did not err by not examining the Appellant's claim against Venezuela, as it was not required to do so after rejecting the claim against Italy. [18] The fact that the Appellant has never lived in Italy or even been to the country is not a relevant consideration. There is no dispute that the Appellant holds citizenship in that country, and he must therefore establish a claim against Italy. [19] The Appellant has alleged that there are groups in Italy with close connections to the Maduro government. He also alleges that there are Islamic terrorist cells and Venezuelan shock groups operating in Italy. Even if this is true, it does not mean that state protection is not available to the Appellant in Italy. No state offers perfect protection; a guarantee of protection for all citizens at all times is not to be expected. However, I find that state protection which is effective at the operation level is available to the Appellant in Italy. [20] In its decision, the RPD acknowledges that some of the objective documents indicate that there are problems with the state protection apparatus in Italy, and that crimes involving violence targeting members of minority groups are reported to be an ongoing human rights issue in the country.5 The RPD also acknowledges that while state protection may not be absolutely perfect, this does not mean that state protection is not available. I agree. [21] In his BOC, the Appellant states that he received phone threats while living in Spain, and that as a result he cannot move to Italy while Nicolas Maduro remains in power and can finance his attack and defense groups. I do not agree. [22] States are presumed to be capable of protecting their citizens except in situations where the country is in a state of complete breakdown. The responsibility to provide international protection only becomes engaged when national or state protection is unavailable to the claimant. [23] I find that the Appellant has failed to provide the requisite "clear and convincing" evidence of the state's inability to protect its citizens in order to rebut the presumption of state protection. [24] An Appellant from a democratic country such as Italy will have a heavy burden when attempting to show that he should not have been required to exhaust all recourses available to him before claiming refugee status. Objective documents - Italy [25] I have reviewed the country conditions reports contained in the most recent (May 29, 2020) National Documentation Package (NDP) for Italy. The documents referenced have not changed in a substantive way from the previous version of the NDP which was before the RPD. The documents outline that Italy is a highly developed and functioning democracy. [26] According to excerpts from the Italy Human Rights Practices Report:6 * The Italian Republic is a multiparty parliamentary democracy with a bicameral parliament consisting of the Chamber of Deputies and the Senate. The constitution vests executive authority in the Council of Ministers, headed by a prime minister whose official title is president of the Council of Ministers. The president of the Republic, who is the head of state, nominates the prime minister after consulting with political party leaders in parliament. Parliamentary elections in 2018 were considered free and fair. ... Civilian authorities maintained effective control over the security forces. * The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality. * The government investigated, prosecuted, and punished officials who committed human rights abuses. * An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for the press. * The constitution provides for the freedoms of peaceful assembly and association, and the government generally respected these rights. [27] According to "Italy. The Freedom in the World 2019" report:7 Italy's parliamentary system features competitive multiparty elections. Civil liberties are generally respected, though the judicial system is undermined by long trial delays, and problems like organized crime and corruption persist. The election of a populist government in 2018 raised concerns about the rights of migrants, asylum seekers, and ethnic minorities. [28] While there are reports of abuse of migrants, refugees, and stateless persons, this is largely in regard to the rescue of migrants at sea and the return of them to reception centers in Libya. This is not relevant in the Appellant's case as he is a citizen of Italy and not a refugee, migrant or stateless person. [29] The RPD did consider a media article which was disclosed by the Appellant with respect to an incident in July 2019, where the Consul General of Venezuela was denounced by Venezuelans in Italy after he tried to beat several demonstrators and supporters of the acting president of Venezuela, Juan Guaidó. There is no indication of any injuries as a result of this incident or whether or not the police or other Italian authorities were involved.8 I do not find that this one isolated incident establishes with clear and convincing evidence that state protection is not available to the Appellant in Italy. [30] A search of the NDP found no references to the targeting of anti-Maduro activists by pro-Maduro supporters or others in Italy. [31] Having considered the objective evidence, I find the Appellant has failed to rebut the presumption of state protection in Italy. No breach of natural justice [32] The Appellant has argued that because the duration of the hearing was short, the decision was issued by the RPD in haste without taking the time to study the testimony in detail. It is argued that the RPD was biased and had decided the outcome prior to hearing from the Appellant. I do not agree. [33] As the Appellant has pointed out that an allegation of bias against a tribunal is serious, and it must be supported by material evidence demonstrating conduct that derogates from the standard. [34] The Court has found that an allegation of bias must be supported by convincing evidence and cannot be made lightly.9 The threshold to establish bias is high. The party alleging bias must do more than "hint" that the outcome is tainted.10 [35] I find that there is no evidentiary foundation to support the Appellant's argument that the RPD demonstrated bias. [36] The fact that the RPD did not spend a long time questioning the Appellant during the hearing does not establish that the decision was predetermined. I have listened to an audio recording of the hearing. The RPD Member explained the issues at the beginning of the hearing and was clearly prepared and focused on what was determinative. That is the role of the RPD. [37] The Appellant was represented by Counsel before the RPD. The Appellant's Counsel was provided with an opportunity to ask questions on the determinative issues and submissions on the evidence. [38] The Appellant has provided a circular argument. He has argued on the one hand that the hearing was too short and the decision predetermined and on the other hand that the RPD decided the claim without taking time to study the testimony in detail. If the hearing was not lengthy, it would not take long for the RPD to study the testimony in detail. [39] The Refugee Protection Division Rules (RPD Rules) provide for an oral decision to be rendered at the hearing unless it is not practicable to do so.11 This does not mean that the oral evidence is not considered in detail when decisions are rendered from the bench. [40] The fact that the RPD reserved its decision in this case and provided it in writing rather than orally at the hearing is further demonstraion that the RPD did not make its decision in haste and took time to consider all of the evidence before it including the Appellant's testimony. [41] The Appellant's argument that the RPD was biased because the decision was issued without taking time to study the testimony in detail is without merit. The RPD listened to the Appellant's testimony and was prepared for the hearing having clearly reviewed the documents within the RPD record including the objective evidence. The Appellant's testimony, statements in the BOC and the objective evidence are all referenced in the RPD decision. The Appellant has failed to establish that the RPD decision was predetermined and that the RAD was biased. CONCLUSION [42] For the reasons stated above, I find that the Appellant has failed to rebut the presumption that he would receive adequate state protection from the authorities in Italy. Having considered all of the evidence, I find that state protection is available to the Appellant at an operational level. [43] I therefore conclude that there is no serious possibility that the Appellant would be persecuted in Italy or, on a balance of probabilities, that he would be at risk of torture, a threat to life or a risk of cruel and unusual treatment or punishment in Italy. [44] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) Paula Faber Paula Faber January 4, 2021 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 111(1)(a) . 3 IRPA, section 96(a). 4 Exhibit RPD-1, RPD Record, Italian passport, at pp. 61-65. 5 National Documentation Package (NDP) for Italy (May 29, 2020), item 2.1: ?Italy. Country Reports on Human Rights Practices for 2019, March 11, 2020. 6 Ibid. 7 NDP for Italy (May 29, 2020), item 2.3: ?Italy. Freedom in the World 2019, 2019. 8 Exhibit RPD-1, RPD Record, SuNoticiero article (translated), at p. 239. 9 Fouda v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1176. 10 Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423. 11 Refugee Protection Division Rules, SOR/2012-256. (8) A Division member must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-09630 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français