TB5-05588

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 : TB5-05588 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 12, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Ecuador, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to substitute that decision with a finding that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be sent back to the RPD for re-determination by a different panel. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he is a gay man and fears discrimination and worse in Ecuador, due to the masculine and machismo culture of the country. The Appellant's family are staunch Christians who believe that homosexuality is immoral, criminal, and contrary to the culture of Ecuador. [4] The Appellant hid his sexual orientation, but one day in 2014 was seen by two co-workers when the Appellant kissed his same sex friend. The Appellant was beaten and threatened by the co-workers. The Appellant did not report the beating to his employers or to the police because he feared having his lifestyle exposed even further. [5] The Appellant applied to Canada for a visa which was issued on December 4, 2014 and a short time later, the Appellant received the visa (on December 22, 2014). On XXXX XXXX, 2015, he flew to Canada. On February 27, 2015 the Appellant applied for protection at an inland office. [6] The Appellant's application for refugee protection was heard on April 28, 2015 with a negative decision being rendered in writing on May 5, 2015.The Appellant submits that the RPD erred in its assessment of state protection in Ecuador. ANALYSIS Role of the RAD [7] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] 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. [55] 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] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [9] The Appellant argues that the documentary evidence which was before the RPD establishes that, for homosexuals in Ecuador, such as the Appellant, the level of state protection fails to meet the necessary standard of adequacy. The Appellant refers specifically to a document2 which tells the story of Jorge, an Ecuadorian who was subjected to coercive measures in order to "fix" his "misguided" gender and sexuality. There are scores of allegations of abuse at these "gender re-alignment" clinics and the Ecuadorian Ministry of Health has attempted, in a somewhat futile effort, to shut these clinics down. Most homosexuals who end up in these clinics are taken there against their will by being drugged, tricked, or dragged there.3 Although the Ministry of Health has promised to regulate these private clinics and to shut down the offending ones, many still operate and forcible conversion therapy efforts likely continue with impunity in dozens of Ecuador's private and often isolated rehab centres.4 [10] The Appellant argues that a survey of LGBT (Lesbian, Gay, Bi-sexual, Transgendered) people in Ecuador reports that 60% of those surveyed have experienced discrimination and only 33% reported that experience to the prosecutor. [11] The Appellant argues that the RPD wrote that the Ecuadorian government was making serious efforts to provide protection however, a state's efforts are not particularly material. The appellant argues that the documentary evidence cited5 establishes that, regardless of the efforts made, there remains a failure of state protection for homosexuals. [12] The RAD notes the following: [13] In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim (Camacho6). This is so even where the protective services of the state have gaps or deficiencies (Salazar Santos7). It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system (Marquez Alvarez8, Romero Castaneda9). [14] In this case, the Appellant states10 that he did not report the only incident that he has alleged actually happened to him. He said that he had been beaten by two co-workers who saw him kiss his boyfriend. The Appellant said that he did not report this because he knew it would openly identify him as gay and that would only make his life worse. But the RAD refers to the above principle, in law, regarding state protection, and notes that the Appellant did not test the availability of that protection. It is true that there are many incidents of discrimination against LGBT people in Ecuador, and some of them, depending on their individual circumstances, may even suffer some sort of persecution. Surely those who have been subjected to the ill and illegal treatment of the so called "torture clinics" have so suffered; however, this Appellant is not one of those people. Until he was caught kissing his partner in public, he never suffered any persecution according to his narrative and testimony. The appellant did apparently suffer some teasing and perhaps even some discrimination due to his being perceived by his school mates as different, but the Appellant left school and lived an otherwise normal life, had housing, a job, education, health care and suffered nothing until his assault in 2014. He chose not to report the incident to the police and has not provided a good enough reason for that failure. [15] A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection (Ward11). However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward12). [16] The documents13 show that the state has closed down at least 18 of these "torture clinics" since 2012. These clinics are underground, often isolated and difficult to find, but the state has found at least 18 and shut them down. Further, the state is generally responsive to the concerns raised by the LGBT community. In one complaint, a politician who made disparaging remarks was fined and banned from politics for a period of time. It is not clear in the documentation whether or not state protection in Ecuador would meet the standard required; however, there is no indication in the documents to suggest that reporting a physical assault to the police would result in a risk to the Appellant's life. There is no visible reason to the RAD for the Appellant's failure to test state protection. He very well may have been surprised at the results of his complaint had he made one. [17] The Appellant also fears his family. He fears they may ostracize him and perhaps even become violent towards him should they find out that he is homosexual. That, the RAD finds, is speculative and does not preclude the Appellant from returning to Ecuador. He does not need to live with his parents or tell them of his orientation. Should his family find out and subsequently persecute him, he has the ability as an educated adult to seek out the protection of the state which is something he should have done before leaving Ecuador. [18] The Appellant has argued that "actions, not good intentions, prove that protection from persecution is available..."14. The documents cited above by the RAD clearly indicate that the government is offering protection by way of closing those clinics that violate the law, and punishing people-including a Presidential candidate in the 2013 elections-who spread disparaging remarks about LGBT community members. [19] The documents cited are mixed. They tell a story of people who report: violence against them, discrimination in the workplace, the healthcare system and the educational system; yet this Appellant is well educated (university), held a good job and has not alleged any abuse from these illegal clinics where the clinicians attempt to torture the sexual orientation out of "patients" who are often there by force. [20] The RAD recognized that there is a lot of discrimination in Ecuador against homosexuals; however, this Appellant has not suffered persecution. He has been assaulted once according to his testimony, but failed to report it or to ask the state for protection. [21] The RAD must ask itself whether the failure to seek protection in this case is fatal to the claim. In making that decision, the RAD looks at all of the documentation presented. The statistics are very telling. "INEC (Ecuadorian Institute on Statistics and the Census) conducted a survey of 2,805 LGBT persons (the first such national study conducted in the country), which showed that 71 percent of respondents had experienced some form of discrimination (including rejection and violence) from within their own family. The survey also showed that 44 percent had faced discrimination in the workplace, 40 percent in education, and 34 percent in health care. Furthermore, 66 percent reported experiencing some form of violence in their interactions with the general public. LGBT groups claimed that police and prosecutors did not thoroughly investigate deaths of LGBT individuals, including when there was suspicion that the killing was because of sexual orientation or gender identity. " [22] The RPD did not find that the Appellant was not a homosexual, but only that he failed to seek state protection and therefore failed to rebut the existence of adequate state protection. Given the evidence on file in support of the Appellant's sexual orientation, the RAD therefore accepts that the Appellant is in fact a homosexual man from Ecuador and must make a decision based on that fact. [23] Much of the documentary evidence is contradictory. In one item,15 the RAD reads that the state has closed down as many as 18 of the clinics which are violating the law regarding the mistreatment of homosexuals. In another document,16 the RAD reads that scores of these clinics continue to operate with impunity throughout Ecuador. Yet another document tells of how a candidate for President is punished by the electoral system for making disparaging remarks about LGBT people.17 [24] The most telling document18 the RAD has read-which stands out amongst the others-was quoted by the Appellant in his Memorandum and is taken from the Board's own National Documentation Package.19 The statistical fact that 71% of those interviewed-in what amounts to a statistically accurate sampling of 2,805 members of the LGBT community-have experienced some sort of discrimination, including family rejection and violence, 44 % had faced discrimination in the workplace, 40% in education and 34% in health care. Further, 66% have reported violence against them when dealing with the public. These figures speak loudly to the Appellant's statement of the machismo mentality in Ecuador. [25] The Appellant is a member of a particular social group as a homosexual and therefore has a nexus to the Convention. [26] As the I.R.P.A. specifies that the Appellant must have a nexus to one of the Convention grounds in order to be considered under section 96) of the IRPA and then also have a well-founded fear, it remains only for him to rebut the existence of state protection. The Act states: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. [27] The test is whether or not there is more than a mere possibility that the person will face persecution should he return to his home country. The test is not "on a balance of probability" which is a far greater burden to prove. In this case, the RAD finds that there is more than a mere possibility that the Appellant would face persecution in Ecuador should he return and try to live openly as a gay man. [28] The panel made reasonable inferences from the documents and came to its independent decision. The RAD does not find that the panel necessarily erred in making the conclusion that it made; however, the RAD disagrees with that conclusion after conducting its own analysis of the evidence. For that reason, the RPD decision will not stand. Disposition [29] The RAD has found that the RPD decision will not stand. The RAD will replace the decision of the RPD with its own, and finds that the Appellant is a Convention refugee. CONCLUSION [30] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe August 12, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 2 Exhibit P-2, Appellant's Record, pp. 40-41 3 Ibid., p. 42 4 Ibid., p. 43 5 Exhibit P-2, Appellant's Record, pp. 39-84 6 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 7 Santos, Marco Antonio Salazar v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 8 Alvarez, Guillermo Marquez v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010, 2010 FC 197. 9 Castaneda, Manuel Alejandro Romero v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010, 2010 FC 393. 10 Exhibit RPD-1, RPD's Record, Exhibit 2, p. 22, para. 9 11 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724. 12 Ibid. 13 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Ecuador (30 January, 2015), item 2.1 14 Exhibit P-2, Appellant's Record, Memorandum, p. 99, para 10 15 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Ecuador (30 January, 2015), item 2.1 16 Exhibit P-2, Appellant's Record, p. 43 17 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP, for Ecuador (30 January, 2015) , item 2.1 18 Ibid., item 2.1, p.99, para 8. 19 Exhibit P-2, Appellant's Record, p. 84 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014)