TB7-07360

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 : TB7-07360 TB7-07361 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 XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 16, 2017 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Belinda Bozinovski 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 FOR DECISION [1] XXXX XXXX XXXX XXXX (the "PA") and his common law spouse XXXX XXXX XXXX XXXX, citizens of Dominican Republic, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted new evidence in support of this appeal. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellants alleged before the RPD that they have a well-founded fear of persecution at the hands of drug traffickers in the Dominican Republic. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellants' application for refugee protection was heard on November 29, 2016 and December 20, 2016. A negative decision was rendered in writing on March 21, 2017. The RPD found that the Appellants were unable to rebut the presumption of adequate state protection, with trustworthy and credible evidence. [4] 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 Appellants are persons in need of protection. Appellants' Issues [5] The Appellants submit that the RPD erred: a) When the RPD made an erroneous finding of adequate state protection; and b) When the RPD found that a delay in leaving by both Appellants and a delay in claiming by the PC were indicative of a lack of subjective fear. ANALYSIS The Role of the RAD [6] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [7] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [8] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,6 with no deference accorded to the RPD.7 [9] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [10] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [11] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [12] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [13] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [14] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [15] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection. The Arguments State Protection [16] Counsel for the Appellants (counsel) argues that the RPD erred in its assessment of the adequacy of state protection in the Dominican Republic. Counsel argues that the panel failed to conduct a fulsome and proper assessment of the documentation presented by the Appellants in support of their contention that it would be unreasonable for the Appellants to approach the state for protection. [17] The panel found that the failure to approach the state was determinative in the panel's decision that the Appellants could not rebut the presumption of state protection without first testing state protection. [18] Generally, the panel's reasoning would be correct; however, in this particular case, the panel cited Ward8 in which the Supreme Court decision established that a claimant is obligated to approach the state for protection if "... protection 'might reasonably have been forthcoming.'" or, if it is objectively reasonable for the claimant to have sought protection. However, a claimant is not required to risk their life seeking protection of a state, merely to demonstrate that ineffectiveness. The panel goes forward stating that in this case, state protection has not been shown to be ineffective to the claimants (Appellants). [19] Counsel argues that the Appellants did not approach the state because law enforcement and the legal system in the Dominican Republic is corrupt due to the fact that organized criminals/drug traffickers are able to bribe and buy their protection. Counsel argues that the panel did not find that the Appellants were not credible, which suggests than the panel accepted that the persons feared by the Appellants were involved in organized crime/drug trafficking. [20] While the panel cited much from Ward9 and other case law related to state protection principles, the panel barely mentioned that the Appellants had disclosed numerous documents in support of their claim that it was unsafe for them to approach the state for protection. [21] I have read the Reasons and Decision and do find them to be inadequate in this regard. [22] Counsel argues that the Appellants disclosed many articles, including many in the Board's National Documentation Package (NDP) for Dominican Republic (DR), which speak to the serious issue of corruption in the security forces and throughout the political and legal system. [23] Documents such as an "Insight Crime" article10 titled "Police involved in 90% of Dominican Republic Organized Crime Cases" quotes a top level prosecutor in the DR who said that the military and police are involved in 90% of organized crime cases, including but not limited to drug trafficking and contract killings. [24] Counsel argues that other articles11 including many more than footnoted below all point to the massive corruption of police and the legal system in the DR. Counsel argues that the panel failed to address any of this material in the Reasons and Decision. I concur with counsel. [25] The above noted documentary evidence goes to the heart of the decision by the panel regarding the adequacy of state protection. Counsel cites Meza Varela12 in which the Court said, "The Board did not provide any analysis of the operational adequacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While the state's efforts are indeed relevant to an assessment of state protection, they are neither determinative nor sufficient..." [26] Counsel argues that in this case, as in Meza Varela, the panel has failed to properly assess the operational adequacy of state resources in the DR. [27] Counsel further argues that the panel is obligated to consider on record those pieces of evidence which directly contradict the panel's ultimate findings. Counsel cites Zheng13 in support of this premise, in which Justice Cullen wrote: Although the Board is not required to refer to every piece of evidence that was before it, when there is evidence which directly contradicts their findings, it must at least, acknowledge it...[if] there [is) overwhelming evidence which contradicts the Board's finding, it must be considered on record. If the Board fails to do so, it will be found to have ignored evidence and erred in law. [28] I find that the panel has erred in law when the panel failed to consider the overwhelming documentary evidence presented by the Appellants, on record. Delays and Re-Availment [29] Counsel argues that the panel's finding that the delay in leaving the DR, by both Appellants, was evidence of a lack of subjective fear. The Appellants explained to the panel that they went into hiding in order to find a means to escape the DR. In hiding for between 12 and 18 months, the PA attempted once to escape through Panama; however, that attempt failed. The female Appellant explained that during the "delay", they were also concerned with her three children and their safety. [30] Once able, the PA managed to escape to Canada while his spouse took an additional few months in order to also escape to Canada. However, she was forced to leave her children behind. [31] The female Appellant returned to the DR in an attempt to bring her three children back to Canada. The panel rejected this explanation as the panel found it "troublesome that she would risk going back to DR despite her alleged fear of returning even if her reason for going back was to try to bring her children with her to Canada." [32] Without going into all of the argument counsel puts forth on this issue, I find these explanations to be very reasonable. [33] The PA was a hairdresser. This is not the type of work which would make a person wealthy and wages in general are very minimal in the DR. It is quite reasonable that it would take time for the Appellants to raise the necessary funds to get them to Canada. The DR is an island and that presents certain difficulties in departing it with no money. This explanation is reasonable. [34] The female Appellant is the mother of three children, the oldest at the time of this appeal is 17 years old, the youngest is 5 years old. I find it absolutely reasonable to expect a mother of these young children to risk everything in an attempt to ensure the safety of those children. Even though her attempt was unsuccessful, I would expect any mother would do the same. I find her explanation to be perfectly reasonable. [35] As criminality is not a ground under section 96 of the IRPA, I must consider section 97 in this case. 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [36] In this particular case, these Appellants are being targeted by drug dealers because the Appellants are presumed to be potential witnesses in regards to a multiple murder committed by the drug dealers. This is a very personalized risk not generally faced by a broad section of the general population. As the DR is relatively small, and the drug dealers are wealthy with great capacity to use local authorities for help, I find that these Appellants would face that risk to their lives anywhere they go in the DR. [37] After a fulsome and independent analysis of the evidence adduced, I find that these Appellants have rebutted the presumption of state protection with credible and trustworthy evidence. I find that these Appellants are persons in need of protection in accordance to section 97(1) of the IRPA. Disposition [38] The RAD has found that the RPD decision cannot stand. CONCLUSION [39] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are persons in need of protection. (signed) "David Lowe" David Lowe August 16, 2017 Date 1 Exhibit P-2, Appellant's Record at pp. 19-42. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14 - 18. 5 Huruglica, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 9 Ibid. 10 Exhibit P-2, Appellants' Record, exhibit B at pp. 92-93. 11 Exhibit P-2, Appellants' Record, exhibit B at pp. 96-99, exhibit D, National Documentation Package (NDP) for Dominican Republic, 30 November 2016 at pp. 194-204, exhibit E at pp. 206, 207, 209, 215, 226-227; NDP item 2.7, exhibit E at pp. 232, 243, 246, NDP item 7.2, exhibit E at pp. 247-249, and NDP item 7.4. 12 Meza Varela, Evelin Yolani v. M.C.I. (F.C., no. IMM-1915-11), Mosley, November 25, 2011, 2011 FC 1364. 13 Zheng v. Canada (MCI) (1995) FCJ No. 140. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-07360 TB7-07361