MB6-02720

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 : MB6-02720 MB6-02721 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Ottawa, Ontario Appel instruit à Date of decision August 31, 2017 Date de la décision Panel Me Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal Me Aylin Berberian 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 [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX1, a female citizen of both Syria and Spain, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX2, a male citizen of Spain, appeal the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. The male Appellant is the adult son of the female Appellant. [2] The Appellants request to submit new evidence and to have an oral hearing. The Appellants request that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute it by its own, finding that they are "Convention refugees". [3] The Minister did not intervene in the Appeal. DECISION [4] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellants are neither "Convention refugees" under section 96 of IRPA, nor "persons in need of protection" under section 97 of IRPA. [5] The appeal is dismissed. BACKGROUND [6] The Appellants allege that if they are returned to Spain, they will suffer persecution because they are Muslim. They state that the general public and the Spanish authorities discriminate against Muslims in the realms of housing, employment, education and access to state protection, due to a rising wave of Islamophobia. When they fled to Spain from Syria, they claim they were unable to find an apartment or a job, and the male Appellant suffered verbal abuse and manhandling at school. After suffering two physical assaults in public, the Appellants allege they approached the police, but were unable to access protection: the police would not launch an investigation without more information. Having stayed for one month in Spain and finding it intolerable, the Appellants fled to Canada. [7] The RPD determined that the Appellants had failed to establish through clear and convincing evidence that the Spanish police refused to provide adequate protection. Moreover, the RPD found that the documentary evidence did not support a finding that Spanish citizens were denied their rights by reason of their religion or Arab origins. Finally, the RPD found that the discriminatory treatment alleged by the Appellants did not amount to persecution. As a result, the RPD found that the Appellants were neither "Convention refugees" nor "persons in need of protection". [8] The Appellants submit that the RPD erred by improperly assessing the evidence. In particular, the Appellants argue that the documentary evidence describes discrimination against Muslim citizens of Spain that clearly amounts to persecution. They submit that they were not required to report the failure of the police to provide them adequate protection. They argue that protection under s. 97 of IRPA was not given due consideration. [9] For these reasons, the Appellants request that the RAD allow the appeal and find that they are "Convention refugees" or "persons in need of protection". DECISION ON WHETHER TO ADMIT NEW EVIDENCE [10] In light of the RPD's negative findings, the Appellant submitted three articles as new evidence on appeal. I find that the articles presented by the Appellant are new evidence within the meaning of s. 110(4) of IRPA. The articles are admitted as Exhibits A-1 to A-3: A-1 Anti-Islam hate crimes jumped over 11-fold in Spain in 2015: Federation; 3 A-2 Cases of Islamophobia in Spain increased sixfold in 2015; 4 and A-3 Islamophobia in Spain: 2015 National Report. 5 [11] The test for admissibility of new evidence is provided in s. 110(4) of IRPA, which states that the person who is the subject of the appeal (here, the Appellants) may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In addition, the jurisprudence requires the evidence to be new, credible and relevant. 6 [12] The RPD issued its decision on 15 April 2016. The three articles concern and quote from reports on islamophobia in Spain that were either released in April 2016, or that remained unpublished at that time. 7 Although one of the three articles was created the day before the rejection of the Appellants' claim, the Appellants could not reasonably have been expected in the circumstances to have presented information that was so newly published, particularly since only one week elapsed between their hearing and the RPD decision. The RAD finds the three items admissible under s. 110(4) of IRPA. [13] With respect to the jurisprudential criteria that the additional evidence be new, credible and relevant, these documents provide new information about the frequency and nature of anti-Islam incidents in Spain. Two of the sources are internet news sites that have satisfactory credibility, while the third is an overview from the author of a substantive report. The articles are sufficiently credible. They are also directly relevant to the objective basis for the Appellants' fear. [14] The Appellants' request to adduce new evidence is granted. DECISION ON WHETHER TO HOLD AN ORAL HEARING [15] The general rule is that the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD.8 In my view, it is neither necessary nor possible to hold a hearing in this case. The Appellants argue that the determinative issue in this case is credibility. 9 I cannot agree. I do not read the RPD to have made a negative credibility finding. 10 Rather, the RPD made a finding of mixed fact and law that the discrimination suffered by the Appellants did not amount to persecution. The new evidence that I have accepted raises no issue with respect to the credibility of the Appellants. As a result, it does not meet the requirement of s. 110(6)(a) of IRPA. [16] The Appellants' request for an oral hearing is denied. SCOPE OF THE RAD APPEAL [17] The RAD is required to consider carefully the decision of the RPD and to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. The standard of review for questions of law is correctness. The standard of review for findings of fact and findings of mixed fact and law is also correctness, where those findings raise no issue of credibility of oral evidence.11 In this case, the determinative issues are questions of mixed fact and law that do not touch the credibility of oral evidence. The standard of review is correctness. [18] Having made its own analysis of the record, the RAD may either confirm the decision of the RPD, or set it aside and substitute its own decision. The RAD must provide a final determination unless it cannot do so without hearing the oral evidence presented to the RPD. Only in cases where it cannot make a final determination, the RAD may refer the matter back to the RPD for re-determination.12 ANALYSIS [19] I have listened to the audio recording of the hearing before the RPD, analyzed the RPD Record, and considered all the arguments of the Appellants. The determinative issue in this matter is state protection, and the distinction between discrimination and persecution is secondary. The documentary evidence supports the allegations of the Appellants that they experienced discrimination in housing, employment and education. However, they face two significant hurdles in proving the well-foundedness of their claim. [20] The first is that they did not rebut the presumption that the Spanish state offers adequate protection. This is so, both because the documentary evidence shows robust protections and significant effort on the part of the state to address discrimination against Muslims, and because the Appellants themselves did so little to seek the protection they required. Given the documentary evidence that the government generally takes steps to discipline or prosecute law enforcement personnel who neglect their responsibilities or abuse their powers, 13 the Appellants' one approach to the authorities was insufficient to dislodge the presumption of adequate state protection. Any local failure to provide effective policing does not amount to a lack of state protection unless it is part of a broader pattern of refusal to protect. 14 The Appellants did not exhaust all of the recourses available to them in Spain before claiming refugee status in Canada, as required by the jurisprudence. 15 [21] The second hurdle is that, even cumulatively, the discrimination suffered by the Appellants does not amount to persecution. My reasons follow. Discrimination against Muslims [22] Ethnic minorities in Spain are subjected to discrimination in access to housing, education, employment and health care, and they undergo police identity checks based on ethnic profiling.16 Muslims and people of Arab origin are among those who suffer these forms of discrimination. Moreover, there can be no doubt that islamophobia is present and growing in Spain. Although the reported magnitude of the problem varies by source, a review of the documentation clearly confirms this fact. For example, the Spanish Federation of Islamic Religious Entities reported 534 attacks targeting the Muslim community in 2015, including online abuse, compared to 48 anti-Islam incidents in 2014. 17 The Civic Platform against Islamophobia reported 278 incidents in 2015, a 567% increase over 2014. 18 Even Spain's Interior Ministry recorded an increase in hate crimes against Muslims, from 63 in 2014, to 70 cases in 2015. 19 These 70 cases represented five percent of the total reported hate crimes in that year. 20 Among the crimes allegedly targeting the Muslim population in 2015 were online abuse (21.8%), vandalism and opposition to mosques (9.3%), threats, assault and, in one case, murder. Notably, 19.4% of islamophobia was directed against women for wearing the hijab. 21 It is suggested that there are at least two contributors to the large discrepancy between civil society and government figures: first, victims are reluctant to approach the police and file a complaint; and second, attacks on Muslim property are allegedly miscategorised as vandalism rather than hate crimes. 22 The Movement against Intolerance estimates that 80 percent of hate crimes in Spain go unreported. 23 One other way to appreciate this information may be that as Muslims in Spain grow in their knowledge of their rights and the assistance available, especially through civil society, the reporting rates are rising significantly. Adequate State Protection [23] Despite these challenges, I find that the Government of Spain does provide adequate protection to its Muslim citizens. The government is in effective control of its territory, with military, police and civil authority in place, and it makes serious efforts to protect the Islamic faith community. For example, several provisions of the Penal Code criminalize racism, including: refusal to provide services on the basis of ethnic group, race or national origin (Articles 511 and 512); and incitement to discrimination, hatred or violence against members of a group based on ethnicity, race or national origin (Article 510). Racial motivation is an aggravating circumstance in the Penal Code (Article 22.6). Groups promoting a hateful ideology are prohibited (Article 515).24 Moreover, teams of specialized state attorneys prosecute hate crimes, resulting in arrests and trials. [24] A training program for the identification and registration of racist and xenophobe incidents was first given in 2012, reaching nearly 2,700 members of law enforcement across the country. This specialized training was made permanent and has resulted in the adoption of a comprehensive manual for training police and security forces in the identification of racist or xenophobe incidents. Among the topics specifically addressed in the training and manual is victims' reluctance to report hate crimes and strategies to encourage their cooperation with police. 25 [25] Apart from the criminal law, several laws touch on anti-discrimination in the realms of work, health and education. 26 In addition, a Cooperation Agreement with the Islamic community specifically requires employers to reach an agreement with employees to accommodate their right to religious observance, including Friday prayers and religious holidays.27 [26] The Government of Spain emphasizes that it also places great importance on the role of civil society in helping to combat racism and xenophobia, and that it finances and makes extensive use of data collected by non-governmental organizations, as well as funding successful litigation against racism and xenophobia by civil society actors. 28 [27] While civil society and international observers have leveled criticisms at the various legislation and initiatives, the state is making significant efforts to protect Muslims. These efforts are effecting change by countering islamophobic behaviour at the individual and systemic levels. I acknowledge that the measures have not resulted in perfect protection for Muslims in Spain. However, the law does not require protection in Spain to be perfect: only adequate, and I find that it is. 29 The Appellants state that they attempted to report their difficulties at one police station and were rebuffed because they could not identify their assailants. I find that they were required to exhaust other recourses, such as attempting to file their report at a different police post or making a complaint to the ombud about the alleged refusal to protect them. The Appellants have not satisfied the RAD on a balance of probabilities that the protection offered by Spain is inadequate. [28] Since adequate state protection is a bar to protection under both ss. 96 and 97 of IRPA, this issue is determinative of the appeal. Nonetheless, for the sake of clarity, I will deal with one additional argument of the Appellants regarding the distinction between discrimination and persecution, which may be difficult to appreciate. Discrimination not amounting to Persecution [29] Based on the record before it, the RPD found that the discrimination alleged by the Appellants did not amount to persecution. With the benefit of more recent information, I find the RPD's analysis requires augmentation here. The documentary evidence and the female Appellant's testimony suggest that her personal choice to wear a hijab in observance of her Islamic faith may be an aggravating factor in discriminatory behaviour against her. Arguably, this is the mirror image of the harm contemplated by the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution, which explains that women's fears may arise from "failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin," including their choices about the visibility of their hair or the type of clothing they wear.30 The irony here is that when the female Appellant migrated to Spain from Syria, she faced verbal abuse, strangers threw stones at her, and someone tried to remove her head covering by force, all because she chose to dress modestly. [30] Although the female Appellant in particular has been the target of deplorable discrimination, I am not convinced that it amounts to persecution. The Federal Court has found that even in some instances where the refugee claimant has been physically assaulted, this does not necessarily amount to persecution, since persecution requires evidence that the conduct is sustained or systemic.31 Here, such evidence is lacking. In at least one instance, other Spaniards came to the Appellants' defence when they faced discrimination in public. The incidents described by the Appellants over the course of their 30 days in Spain cannot be fairly described as sustained or systemic. Even when considered cumulatively, their experience does not meet the threshold of persistence and injury inherent in the definition of persecution. The Appellants also did not present clear and convincing evidence that others similarly situated suffered sustained or systemic harm.32 Nor can I conclude on this record that prospectively, they face a serious possibility of persistent abuse. [31] For these reasons, I find that the RPD came to the correct conclusion. With the benefit of the new evidence adduced by the Appellants, as well as the most recent National Documentation Package, I have made an independent analysis of "the essential question whether the claimant's basic human rights are in fundamental jeopardy" in Spain. 33 On the evidence in this case, the answer to this essential question is no. On a balance of probabilities, the regrettable discrimination to which Muslims are subject in Spain does not amount to persecution. The Appellants do not need refugee protection in Canada. CONCLUSION [32] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellants are neither "Convention refugees" under section 96 of IRPA, nor "persons in need of protection" under section 97 of IRPA. [33] The appeal is dismissed. Christina Harrison Baird Me Christina Harrison Baird August 31, 2017 Date /ag 1 Hereinafter "the female Appellant". 2 Hereinafter "the male Appellant". 3 Appellants' Record, Tab 6, pages 36-37. Article dated 14 April 2016, available at: http://www.presstv.com/Detail/2016/04/13/460521/Islamophobia-antiIslam-attacks-Spain-Muslims-abuse-aggression-Europe. Hereinafter "Exhibit A-1". 4 Appellants' Record, Tab 6, pages 38-40. Article dated 30 April 2016, available at: http://archyworldys.com/cases-of-islamophobia-in-spain-increased-sixfold-in-2015/. Hereinafter "Exhibit A-2". 5 Appellants' Record, Tab 6, pages 41-43. Article by Alfonso Casani Herranz dated 25 April 2016, available at: http://twistislamophobia.org/en/2016/04/25/islamophobia-in-spain-2015-national-report/. Hereinafter "Exhibit A-3". 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44 to 49. 7 Alfonso Casani Herranz (2016): Islamophobia in Spain: National Report 2015, in: Enes Bayrakli & Farid Hafez, European Islamophobia Report 2015, Istanbul, SETA, 2016. Available at: http://www.islamophobiaeurope.com/reports/2015/en/EIR_2015_SPAIN.pdf . 8 Section 110(3) of IRPA. 9 Memorandum of Argument, para. 24. 10 RPD Reasons, paras. 13-14. 11 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 37, 48, 78 and 103. 12 Section 111 of IRPA; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at para. 103. 13 National Documentation Package on Spain, dated 30 June 2017, Tab 2.1, United States. Department of State. Spain: Country Reports on Human Rights Practices for 2016, 3 March 2017, pages 1 and 2. 14 Mejia v. Canada (Minister of Citizenship and Immigration), 2004 FC 925, para. 6. 15 Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, para. 46. 16 National Documentation Package on Spain, dated 30 June 2017, Tab 2.6, United Nations. Human Rights Committee. Concluding observations on the sixth periodic report of Spain, 14 August 2015, CCPR/C/ESP/CO/6, paras. 8 and 9. 17 Exhibit A-1, page 36. 18 Exhibit A-2, page 38. 19 Exhibit A-1, page 36. 20 National Documentation Package on Spain, dated 30 June 2017, Tab 2.1, United States. Department of State. Spain: Country Reports on Human Rights Practices for 2016, 3 March 2017, page 17. 21 Exhibit A-2, page 39. 22 Exhibit A-1, page 36. 23 National Documentation Package on Spain, dated 30 June 2017, Tab 2.1, United States. Department of State. Spain: Country Reports on Human Rights Practices for 2016, 3 March 2017, page 17. 24 National Documentation Package on Spain, dated 30 June 2015, Tab 13.1, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Mutuma Ruteere - Addendum : Visit to Spain, A/HRC/23/56/Add.2, 6 June 2013, page 5, paras. 14-15. 25 Ibidem, Tab 13.3, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Mutuma Ruteere - Addendum : Mission to Spain: comments by the State on the report of the Special Rapporteur, A/HRC/23/56/Add.3, 28 May 2013, page 4, paras. 13-14. 26 Ibidem, Tab 13.1, Special Rapporteur, page 5, para. 14. 27 Ibidem, Tab 2.8, European Commission, Spain 2016. Country Report. Non-Discrimination, page 44. 28 Ibidem, Tab 13.3, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Mutuma Ruteere - Addendum : Mission to Spain: comments by the State on the report of the Special Rapporteur, A/HRC/23/56/Add.3, 28 May 2013, page 4, para. 9. 29 Canada (Minister of Employment and Immigration) v. Villafranca, 1992 CanLII 8569 (FCA), para. 7. 30 Immigration and Refugee Board of Canada, Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, 13 November 1996, section A.I.4. 31 Biro v. Minister of Citizenship & Immigration, 2012 FC 1120, paras. 18 and 19. 32 Chan v. Canada (MEI), [1995] 3 S.C.R. 593, at para. 69. 33 Idem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02720/ MB6-02721 11 RAD.25.02 (2014.09.11) Disponible en français