TB5-01031

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 : TB5-01031 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 (a.k.a. XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 22, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha A. Green Barrister and Solicitor 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 and Decision [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Jamaica, Antigua and Barbuda, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that she is a Convention refugee or a person in need of protection, or refer back to the RPD to a differently constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she cannot return to Antigua and Barbuda or Jamaica because she fears persecution due to her sexual orientation. She alleges that she is lesbian. [4] The Appellant's application for refugee protection was heard on December 19, 2014. In a written decision of January 8, 2015, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found that the Appellant does not face a risk of persecution in Jamaica or Antigua and Barbuda due to her sexual orientation and that she has not rebutted the presumption of state protection. The Appellant submits that the RPD: 1. erred in its state protection findings; and 2. erred in making its plausibility finding. ANALYSIS Role of the RAD [5] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, 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". [6] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [7] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD Err in its assessment of State Protection? [8] The RPD found that irrespective of any negative credibility findings, the Appellant does not face a risk of persecution in Antigua and Barbuda due to her alleged sexual orientation. The RPD reasoned that, although there are laws which criminalize same-sex conduct, those laws are rarely enforced. The Appellant submits that the RPD erred in its assessment of state protection and that it ignored relevant information and relied on selective excerpts of the objective evidence. The Appellant argues that, even if there is evidence that legislation which outlaws homosexuality is rarely enforced, it does not mean that individuals who suffer violence due to their sexual orientation will necessarily receive actual protection from the state. The Appellant argues that the RPD failed to consider significant evidence on the record which establishes that, in addition to being illegal, homosexuality is abhorred in Antigua and Barbuda and that homosexuals cannot live openly and freely or safely. [9] The RAD finds that this appeal can be disposed of by considering whether the Appellant would be persecuted on the basis of her sexual orientation in Antigua and Barbuda and the adequacy of state protection in Antigua and Barbuda in light of all the evidence. The RAD finds there is sufficient evidence in the record to allow the RAD to determine these issues. For the purposes of this analysis, the RAD is assuming that the Appellant is a lesbian and that she would live openly as a lesbian. [10] The issue of state protection requires undertaking a contextual approach in determining whether the refugee claimant has rebutted the presumption of state protection. Some of the many factors which ought to be considered include: 1. The nature of the human rights violation; 2. The profile of the alleged human rights abuser; 3. The efforts that the victim took to seek protection from authorities; 4. The response of the authorities to requests for their assistance; and 5. The available documentary evidence.3 Nature of Human Rights Violations [11] In this regard, it is apparent that the RPD considered the nature of the human rights violation in the context of the adequacy of state protection for sexual orientation. The Appellant alleges that she was bullied, threatened and harassed due to her sexual orientation. She also alleges that she and her lesbian partner were attacked by three men. The Appellant alleges in her Basis of Claim (BoC) that she was "almost raped" and was threatened with harm if they did not end their relationship. In her testimony, she alleges she added that she and her partner ended up in hospital as a result of the attack and that the police attended and took a report of the incident. [12] The RAD's review of the Appellant's testimony in this regard reveals that the Appellant's testimony concerning the attack on XXXX XXXX, 2014 was vague and lacking in details. The Appellant was questioned by the RPD why she omitted to include in her BoC that the she and her partner ended up in hospital as a result of the attack and that the police attended and took a report. The Appellant's explanation was that she forgot to include it in her BoC. The RAD is not persuaded by the Appellant's explanation. The RAD finds that this allegation is a significant event which is central to her allegations that she is at risk of harm in Antigua and Barbuda. Her failure to include this significant event in her BoC and her insufficient explanation for doing so undermines her allegations that she was attacked. [13] The RAD notes that the Appellant has not tendered persuasive corroborative evidence of alleged attack. Although she alleges a report was taken by the police, she made no effort to obtain a copy of the report from police. She explained that she was afraid that, if she went to the police, her sexual orientation would become common knowledge. However, in response to questions from the RPD, the Appellant acknowledged that since being in Canada she has not made any efforts to obtain the police record. The Appellant is represented by competent counsel. The RAD finds the police report is reasonably available to her, and the importance of tending this document to support her allegations is evident. [14] The Appellant has tendered a letter from the XXXX of XXXX XXXX XXXX4 and other documents which detail the situation for the LGBLT community in Jamaica; however, no such documents were tendered in relation to Antigua and Barbuda. The Appellant also tendered a letter5 from a childhood friend from Jamaica as support for her claim. However, the letter offers very little information on the Appellant's situation in Antigua and Barbuda. The letter offers general comments about the incident which led to the Appellant's decision to leave Antigua and Barbuda but does not provide any specific details of the incident. [15] The RAD finds that the allegations made by the Appellant and the evidence tendered by her amount to allegations of discrimination and harassment which do not rise to the level of persecution. There is insufficient persuasive evidence in the record that the Appellant was persecuted for her sexual orientation. Rather, the evidence tendered by the Appellant tends to support allegations of harassment and discrimination. [16] The RAD finds there is insufficient persuasive evidence in the record that the Appellant's life would be placed at risk due to her sexual orientation or that her fundamental rights would be denied in Antigua and Barbuda if she returns and lives openly as a lesbian. Profile of Abuser [17] The RAD notes that the Appellant alleges that she was bullied and threatened by a group of individuals and further that she was physically attacked by unknown assailants. There is no evidence in the record and none was raised by the Appellant in this appeal that suggests that the abusers are in a position of power or have close ties to the police or other authorities and that, because of this, state protection would not be forthcoming. Although homosexuality is illegal in Antigua and Barbuda and the Appellant alleges her sexual orientation has become known to the police and others in Antigua and Barbuda, she has not alleged any mistreatment at the hands of the police or other authorities due to her sexual orientation or for any other reason. Efforts taken by the Appellant to seek protection [18] The Appellant submits that the RPD erred by failing to address her testimony that she was aware of other members of the LGBT community who were not provided state protection. The Appellant argues that it was not sensible for her to go to the police for assistance in light of what other people experienced. [19] The RAD is not persuaded by the Appellant's argument in this regard. The RAD has reviewed the audio recording of the Appellant's testimony in this regard and finds that her testimony was vague and lacking in details. The Appellant was unable to provide details of the alleged attack or the failure of the state protection in those incidents. As such, little weight can be given to her testimony in this regard. [20] Further, while the Appellant initially alleged in her BoC that she was unable to go to the police and report the abuse and threats she suffered, she testified to the contrary. In her testimony, she alleged that, following the physical attack by a group of unknown assailants, she and her partner received treatment in the hospital. The police attended the hospital and took a report of the incident but did nothing more. Although the Appellant has argued it was not sensible for her to report the abuse to the police, she testified that was exactly what she did. However, the Appellant testified that she did not attempt to contact the police after she reported the incident to them. [21] The RAD finds that the Appellant made insufficient effort to seek state protection. As noted by the RPD, the documentary evidence suggests that the Appellant could have made complaints about police inaction to higher authorities who investigate police inaction and misconduct. The US Department of State reports that the police force has in place complaint mechanisms should individuals feel that they are not being treated fairly by particular officers, and therefore the actions of an individual officer can be overcome by either reporting to another office or police station or by taking the complaint to a higher authority.6 [22] In light of the failure to access the state resources available to her and her reluctance to engage the state following the alleged incidents of abuse, the RAD finds that the Appellant has not taken the necessary steps to access state protection. The response of the authorities to requests for their assistance [23] The RAD finds the Appellant has not provided sufficient evidence to establish that the police were unable or refused to provide her with adequate protection. The Appellant has testified that the police took a report and did no more. However, the RAD notes that the Appellant testified that she left the country shortly after the attack and that she never made any efforts to contact the police following the report to find out the status of their investigation. [24] Regardless, local failures to provide effective policing do not amount to a lack of state protection, unless such failures are part of a broader pattern of the state's inability or refusal to extend protection.7 While there is some evidence in the record that some police treat homosexuals contemptuously and do not take their complaints seriously, the RAD finds that the documentary evidence does not reflect a broader pattern of state inability or refusal to extend protection to the Appellant. Furthermore, the RAD notes that evidence suggests that the police would have provided state protection. The available documentary evidence [25] The RPD found that Antigua and Barbuda has a functioning multi-party democracy. The Appellant submits that the RPD's reliance on the existence of a democracy in Antigua and Barbuda to find that state protection would be reasonably forthcoming was unreasonable. The Appellant argues that the jurisprudence makes it clear that the fact that the country is a democracy is not a guarantee of state protection, and it is not enough to consider whether a country has a parliamentary democracy and respects basic standards of human rights. [26] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD did not solely rely on the existence of a democracy to find that state protection would be reasonable forthcoming. Rather, the RPD considered it as one of many factors to determine if state protection was reasonable forthcoming. The documentary evidence describes Antigua and Barbuda as multiparty, parliamentary democracy.8 The law ensures due process, including public trial, and the court system generally enforces these provisions.9 The constitution prohibits arbitrary arrest and detention, and the government generally observes these prohibitions.10 It is also reported that the security forces in the country do not commit human rights abuses. The U.S. Department of State Report lists very few human rights concerns in the country.11 [27] Furthermore, the RAD notes that the existence of a democracy is an important factor in determining the burden of proof. The (evidentiary) burden of proof is directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the Appellant must have done to exhaust all courses of action open to her.12 However, the RAD finds that, while the amount of evidence required to rebut the presumption of protection may be less for countries that are in transition (emerging democracies), the standard of proof does not vary based on the level of democracy in the country in question.13 [28] The RPD found while the anti-same-sex law does exist on the books in Antigua and Barbuda, it is not in practice or enforced, and that law in and of itself does not establish that the state is not willing to protect the Appellant should she become the victim of societal discrimination and violence. [29] The Appellant submits that the RPD erred by equating the fact that the laws which supposedly punish same-sex relationships are not actually enforced with the actual protection available to individuals who fall victim to violence due to their sexual orientation. The Appellant argues that her fear did not rest as much on the enforcement of the law's punishing same-sex relationships but rather on the lack of response from the police. [30] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD's finding did not equate non-enforcement of same-sex legislation with state protection. Rather, the RAD found that the existence of the legislation does not in and of itself equate to an absence of state protection. While it is true that there is ample evidence in the record of discrimination and harassment on the basis of sexual orientation, there is a lack of persuasive evidence that the Appellant would be prosecuted for violations of laws which prohibit same-sex conduct. The RAD recognizes that, even if the evidence speaks of some harm that would qualify as serious, the RAD must consider whether there is a serious possibility that the harm will actually come to pass. A statute which outlaws the Appellant's conduct may be in existence, and it may provide for unconscionably severe punishment for that conduct, but this does not necessarily mean there is a serious possibility that the punishment will be inflicted on the Appellant. The Supreme Court has emphasized that, in a determination as to whether the claimant's fear is objectively well founded, the relevant factors include the laws in the claimant's homeland, together with the manner in which they are applied. In this connection, the Court cited paragraph 43 of the UNHCR Handbook.14 Enforcement measures may vary from area to area within a country, and if this is the case, "the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority".15 A pattern of non-enforcement might imply that there is less than a serious possibility.16 [31] While the evidence in the record establishes that there are laws which prohibit same-sex conduct, the record does not provide persuasive evidence of the enforcement of that legislation. The RAD is supported in this finding by a recent Federal Court decision in Antrobus.17 [32] The RPD found that the objective evidence in the record shows that members of the LGBT community are assisted by the state. The RPD noted in its reasons: [15] The evidence also shows that should an LGBT individual become the victim of such crimes they are assisted by the state. In fact MESH representatives encourage LGBT individuals to report cases of threat and violence to the police.18 I do not believe an LGBT organization would encourage individual to seek the assistance of police if they believed they would be treated unfairly or put themselves in danger. The evidence does show that there have been instances were reports made to the police were not taken seriously, however, an openly gay police officer and representative from MESH stated that the treatment received by the police depends of the officer at the desk. This again tells me that the treatment reported is not systemic or standard practice. As a gay police officer speaking on behalf of an LGBT organization in Antigua and Barbuda I do place a lot of weight of the representatives' comments to the research directorate. [16] Furthermore, the US Department of State reports that the police force has in place complaint mechanisms should individuals feel that they are not being treated fairly by particular officers and therefore the actions of an individual officer can be overcome by either reporting to another office or police station or by taking the complaint to a higher authority.19 Evidence also shows that officers who use physical violence against LGBT individuals are held accountable. The MESH representative said "that police officers who use physical violence against LGBT people may lose their jobs" citing a case whereby a police officer physically assaulted an LGBT person, was reported, and subsequently lost his job.20 In light of this evidence I find that the police are held accountable when they do not provide the appropriate forms of protection to LGBT individuals. [33] The Appellant submits that this finding was unreasonable because there are reported instances of some members of the LGBT community that do not report crimes out of fear and that there have been instances where enforcement officials sometimes discriminate and use excessive force against members of the LGBT community. The Appellant further argues that the RPD was selective in its analysis of the evidence. While the RPD did not cite each individual piece of evidence cited by the Appellant in support of his appeal, the RAD finds there is no requirement that the RPD refer to each document in assessing state protection.21 However, the RAD finds that the RPD has fairly considered the evidence, including that which did not support the presumption of state protection. There is insufficient evidence in the record which suggests that an individual's sexual orientation would preclude the availability of state protection for crimes committed against them. [34] The Appellant further argues that the RPD speculated as to the reasons why the Antigua-based LGBT rights group Meeting Emotional and Social Needs Holistically (MESH) encourages its members to report incidents of abuse to police. The Appellant argues that the RPD has no insight into the motivation behind the organization's position. [35] The RAD is not persuaded by the Appellant's argument in this regard. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole, even if that evidence is uncontradicted.22 The RAD agrees with the RPD that, while some members of the LGBT community may face discrimination at the hands of some officers, it makes little sense that the very organization created to protect the interests of the LGBT community would knowingly encourage their members to seek the assistance of police if they believed they would be placed at risk by doing so. [36] In light of the foregoing, the RAD agrees with the RPD that it is reasonable to expect that persons who commit assaults against individuals, regardless of their sexual orientation, would be dealt with in accordance with those laws. [37] The responsibility to provide international protection only arises when protection is unavailable to refugee claimants in their country of nationality.23 In considering the Appellant's refugee claim, the RPD was required to presume that Antigua and Barbuda is capable of protecting its citizens; it was for the Appellant to rebut that presumption with clear and convincing evidence of the state's inability to protect.24 In situations where protection might reasonably be forthcoming, refugee claimants are required to approach their own state for protection.25 [38] A refugee claimant from a democratic state must do more than simply show that he went to see some members of the police, without success.26 The RAD finds on the evidence adduced by the Appellant before the RPD, and based on her arguments before the RPD and the RAD, the Appellant has not rebutted the presumption of adequate state protection. Disposition [39] The RAD finds that the Appellant's arguments on state protection fail. CONCLUSION [40] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "L. Favreau" L. Favreau April 22, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Gonzalez Torres, Luis Felipe v. M.C.I. (F.C., no. IMM-1351-09), Zinn, March 1, 2010; 2010 FC 234. Reported: Gonzalez Torres v. M.C.I., [2011] 2 F.C.R. 480 (F.C.) at para. 37. 4 Exhibit RPD-1, p. 86. 5 Exhibit RPD-1, letter from Heather Manning, p. 120. 6 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Jamaica, item 2.1; and Exhibit 4, NDP for Antigua and Barbuda, item 2.1. 7 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000; [2000] 4 F.C. 3 (T.D.). 8 RPD's Record, Exhibit 4, Item 2.1. 9 Ibid. 10 Ibid. 11 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 7. 12 M.C.I. v. Kadenko, Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: M.C.I. v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.), at 536. See also Alassouli, Yousf v. M.C.I. (F.C., no. IMM-6451-10), de Montigny, August 16, 2011; 2011 FC 998. 13 Garcia Guevara, Ma De Los Angel v. M.C.I., (F.C., no. IMM-5522-11), de Montigny, February 13, 2012; 2012 FC 195; Shaka, Abdul Shema v. M.C.I. (F.C., no. IMM-4141-11), Rennie, February 21, 2012; 2012 FC 235. 14 Chan v. M.E.I., [1995] 3 S.C.R. 593; affirming Chan v. M.E.I., [1993] 3 F.C. 675 (C.A.), per Major J., at 664-5 and 666-7. 15 Ibid., at 658. 16 Valentin, Stephan v. M.E.I. (F.C.A., no. A-256-90), Pratte, Marceau, Desjardins, June 21, 1991; [1991] 3 F.C. 390 (C.A.), at 394; and Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994, at 3-4 (re exit). 17 Antrobus, Enasio Leslie v. M.C.I. (F.C., no. IMM-2174-11), Pinard, January 6, 2012; 2012 FC 3. 18 RPD's Record, Exhibit 4, NDP for Antigua and Barbuda (14 March 2014), item 6.1. 19 Ibid. 20 Ibid. 21 De Toro, Martha Sofia Sernas v. M.C.I. (F.C., no. IMM-5635-11), Near, February 22 2012; 2012 FC 245, para. 25. 22 Giron, Luis Fernando Soto v. M.E.I. (F.C.A., no. A-387-89), Mahoney, MacGuigan, Linden, May 28, 1992 ; (1992), 143 N.R. 238 (F.C.A.) 152; Alizadeh, Satar v. M.E.I. (F.C.A., no. A-26-90), Stone, Desjardins, Décary, January 11, 1993. 23 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 24 Ward, pp. 724-726. 25 Ward, p. 724. 26 M.C.I. v. Kadenko , Ninal (F.C.A., no. A-388-95), Hugessen, Décary, Chevalier, October 15, 1996. Reported: Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th), 532 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-01031