TC0-00604

RAD File / Dossier de la SAR : TC0-00604 TC0-00605 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 6, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the persons who are the subject of the appeal Maureen Silcoff Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX ("the Principal Appellant") and her minor daughter, XXXX XXXX XXXX ("the Minor Appellant"), are citizens of Antigua and Barbuda. They fear persecution from the Principal Appellant's former partner. The Refugee Protection Division ("RPD") rejected their claims for refugee protection. The RPD accepted that the Principal Appellant had experienced domestic violence from her former partner, including ongoing threats to her life. However, the RPD found that the presumption of state protection had not been rebutted. The Appellants dispute the RPD's finding on the state protection issue. [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is allowed. I have independently reviewed the evidence and conclude that there is clear and convincing evidence of the state's inability or unwillingness to protect victims of domestic violence in Antigua and Barbuda. I determine that adequate state protection would not be available to the Appellants. I therefore set aside the RPD's negative determination and substitute a positive decision, finding that the Appellants are Convention refugees. BACKGROUND [3] The Principal Appellant met her former partner in XXXX 2016. The relationship progressed quickly. A few months after meeting, he moved into the Appellants' home and the Principal Appellant discovered she was pregnant. It seems that upon learning of the pregnancy, her partner's behaviour changed. He became verbally abusive at first, and then physically abusive. In 2017, he physically and sexually assaulted the Principal Appellant on three occasions, resulting in her hospitalization each time. After the third incident, the Principal Appellant contacted her cousin, who helped her leave the home and provided her a safe place to stay. However, the Principal Appellant's partner searched for her, calling her friends and family members, demanding that she return home. He threatened to kill her. The Principal Appellant sought to leave Antigua and Barbuda. She obtained a flight to leave the country with the Minor Appellant, whom she feared was also at risk from her partner. In XXXX 2017, the Appellants arrived in Canada. They sought assistance from various community organizations and initiated a claim for refugee protection a few months after their arrival. [4] The RPD heard their claim on December 10, 2019. In a written decision, dated December 18, 2019, the RPD rejected the claims. The RPD found the Appellants' evidence to be credible. However, the Appellants had not reported the matter to police in Antigua and Barbuda. The Principal Appellant believed this would have been a futile exercise in her country. She also explained that her partner had friends in the police. The RPD was not satisfied with this explanation. Though the protection offered was not always perfect, the panel considered that authorities were making serious efforts to protect citizens. As Antigua and Barbuda is a democratic country, the RPD believed the burden to displace the presumption of the availability of state protection was correspondingly high. The RPD found that the Appellants had not taken all reasonable steps in their circumstances to seek state protection before coming to Canada. State protection was the determinative issue, and the claims were rejected on this basis. Role of the Refugee Appeal Division (RAD) [5] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 I see no reason, in the present case, to show deference to the RPD's findings. I have therefore applied a correctness standard throughout this decision. Admissibility of New Evidence [6] The Appellants' Record did not contain any new evidence, however, further written submissions and documents were provided on August 18, 2020. The new evidence consists of a statutory declaration from the Principal Appellant and screenshots from her Instagram account.2 In short, it seems the Principal Appellant's former partner has continued to contact her, harassing her and threatening to kill her. This time, he has used Instagram to do this, as he contacted her on this platform on XXXX XXXX, 2020. The former partner refuses to accept that the Principal Appellant is in a new relationship, and that another man is taking a fatherly role in the upbringing of their child. [7] I have admitted the new evidence. I have weighed the relevant factors under rule 29 of the Refugee Appeal Division Rules3. The documents provide new information about the former partner's continued threats and intention to harm the Appellants. The evidence is relevant and probative to the main issue in this appeal. The profile of the agent of persecution and his continued intention to harm the Appellants are factors that may be considered in the state protection analysis. As this set of communications did not occur until May 2020, the evidence could not have been provided at the time the appeal was perfected. I am also satisfied that the new evidence meets the requirements of subsection 110(4) of the IRPA. The evidence arose after the rejection of the claim. It is sufficiently credible, relevant, and new. [8] The Appellants have not requested an oral hearing, and none is warranted in this appeal. ANALYSIS [9] The sole issue in this appeal is whether the RPD erred in its state protection analysis. I have reviewed the evidence and reached a different conclusion. [10] The RPD treated the Principal Appellant's failure to approach police as fatal to her claim. The panel stated that if protection might reasonably be forthcoming, a refugee claimant is required to approach the state for protection. The RPD was not persuaded by the Principal Appellant's explanation about her friend's advice and how she had not received any assistance when she attempted to seek protection in a similar situation. Considering the relatively high burden in a democratic country like Antigua and Barbuda, the RPD was not satisfied that there was clear and convincing evidence to displace the presumption of state protection. [11] The Appellants take issue with a few aspects of the RPD's reasons. They say that the RPD applied the wrong test for state protection, as the RPD referred to Antigua and Barbuda's "serious efforts" to protect its citizens. The Appellants emphasize that the test is not about serious efforts, but rather about whether adequate protection materializes on the ground. Given the RPD's very brief analysis of the issue, the Appellants argue it is not possible to conclude that the RPD properly applied the test. On a related note, the Appellants submit that the RPD failed to provide transparent reasons for rejecting the claim. According to the Appellants, the RPD did not assess the pertinent evidence on state protection for victims of domestic violence. The Appellants highlight the various pieces of evidence that support their view that police do not provide effective protection. They stress that their failure to approach the state is not fatal to their claim, as claimants need not approach the state for protection if protection would not reasonably be forthcoming. [12] I have reviewed the evidence and agree with the Appellants. Though I am not persuaded that the RPD applied the wrong test, there was evidence supporting the Appellants' position on the issue of state protection, which the RPD did not address. I am satisfied that the evidence highlighted by the Appellants constitutes clear and convincing evidence of the state's inability or unwillingness to protect the Appellants. Jurisprudence on state protection [13] It may be helpful to begin with a review of the jurisprudence on state protection. Absent a complete breakdown of the state apparatus, there is a presumption that a state is both willing and able to protect its citizens. This presumption may be rebutted if the Appellants can present clear and convincing evidence of the state's inability to protect.4 In assessing whether the presumption has been rebutted, the jurisprudence indicates that a contextual approach is required. A number of factors ought to be considered, including: 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.5 [14] The failure to approach police for protection is sometimes fatal to a claim for refugee protection. However, it is not a strict legal requirement. As the jurisprudence indicates, the fact of whether a claimant sought state protection goes to whether they have provided the clear and convincing evidence needed to displace the presumption of state protection.6 The Appellants are only required to show that they took all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken, and their interactions with the authorities.7 [15] In relation to the standard for protection, the jurisprudence recognizes that state protection need not be 'perfect,' as no government can guarantee the protection of all its citizens at all times. The protection offered need only be adequate.8 [16] Finally, as the RPD correctly pointed out, the amount of proof required to rebut the presumption of state protection is directly proportional to the level of democracy in the state. The more democratic a state's institutions, the more the Appellants must have done to exhaust the courses of action available to them.9 [17] Considering the above, the key challenge for the Appellants in this case was to demonstrate with clear and convincing evidence the state's inability to protect, in light of the relatively high burden in a democratic state like Antigua and Barbuda, and in light of their decision not to take any measures to seek protection from the state. However, as explained below, this was not an insurmountable problem. Documentary evidence on state protection in domestic violence contexts [18] There is little question that Antigua and Barbuda is making serious efforts to address domestic violence. The country passed domestic violence legislation in 2015, which prohibited domestic violence, provided for penalties, and included the possibility to apply for protection orders.10 There was a sentencing range of 10 years to life imprisonment for the rape of a woman. The government provided domestic violence programs. A crisis hotline and an awareness campaign by the Directorate of Gender Affairs ("DOGA") had increased the number of reports of rape. The government's efforts included training for law enforcement officers, healthcare professionals, counselors, and social workers.11 A sexual offences unit had been established within the police force, and there was a sexual assault referral centre. Legal aid was available for domestic violence victims.12 The DOGA offered counselling to victims as well as an advocacy caseworker to accompany victims to the hospital, police, and to court.13 The government had plans to establish a specialized family court covering domestic violence as well as childcare and protection, among other matters.14 [19] Despite the state's efforts, however, the preponderance of the evidence showed that perpetrators of domestic violence enjoyed impunity. Violence against women continued to be a serious problem. Sources consulted in an Immigration and Refugee Board of Canada Response to Information Request ("RIR"), including a source from the DOGA, indicated that domestic violence was very common, and that it was normalized in the country. There was a cultural belief that domestic violence was a private matter. Sources gave the view that police responses to domestic violence were not effective. Delays in responding to complaints, a lack of resources, and the lack of priority to these cases were cited as problems. An organization, Women Against Rape ("WAR"), stated that police officers treated domestic violence victims with a dismissive attitude. Another organization indicated that law enforcement officials blamed victims and treated them as if they did something to deserve the violence.15 A November 2019 letter from WAR stated that there was no evidence of improvement in police responses.16 [20] The most important evidence to consider was a report authored by Rawwida Baksh ("the Baksh report"), which was published in December 2017. The Baksh report collected information from various sources, including victims, perpetrators, and state actors, among others. The sample size of victims - only eight women - was rather small, but their accounts are nonetheless informative.17 Not a single one of the victims benefited from meaningful protection, despite reporting their situations to police. The police often did not take their reports seriously. They provided either no assistance, took the side of the perpetrators, or did not follow up. In two cases where the perpetrators were later imprisoned for sexual abuse, the first was imprisoned for only a couple of days, and the other case was dismissed due to a lack of evidence.18 Even the perpetrators interviewed in the Baksh report described rather lenient treatment when incidents were reported to police. In one instance, the perpetrator, who was a police officer, received only a warning from his supervisor, describing that he was glad that his supervisor did not make a big deal of the situation.19 [21] Several stakeholders, including state actors, gave the view that the implementation of domestic violence laws in the country was either delayed or lacking. This included representatives from the Office of the Police Commissioner and Her Majesty's Prison.20 Interestingly, out of 15 stakeholders interviewed as to whether the government was meeting its obligations to address gender based violence, only one responded with a categorical yes. Most other respondents gave the view that the government was not meetings its obligations or merely that the government was trying.21 One police officer, who formed part of a focus group in St. Mary's Parish, responded that they had a three strikes rule: the perpetrator would be warned twice, and only on the third occasion would an arrest take place. Stakeholders gave the view that the police's response to gender based violence was "not adequate," and that there was still a belief among all ranks of the police force that they should not interfere in "husband and wife business."22 The RAD's assessment of state protection in Antigua and Barbuda [22] In my view, the Appellants' failure to report their situation to police should not be fatal to their claims. They can properly rely on the experiences of other victims of domestic violence in Antigua and Barbuda as part of the clear and convincing evidence of the state's inability to protect. In fact, the Chairperson's Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution23 ("Gender Guidelines") speak to the challenges in assessing state protection in cases of gender-related persecution. The Gender Guidelines specifically ask decision-makers to consider alternative forms of evidence of the state's inability to protect, including the testimony of women in similar situations where there was a failure of state protection. This type of evidence, contained in the Baksh report, formed part of the evidentiary record, but the RPD did not address it at all. [23] There are a number of factors to consider here. Gender based violence is normalized in Antigua and Barbuda, and there is evidence that police are dismissive of such complaints. The consensus amongst victims was that their perpetrators enjoyed impunity. None of the victims interviewed in the Baksh report were able to obtain adequate protection. Even police officers and perpetrators admitted to failures in state protection. The Principal Appellant cited the situation of her friend, who went through a similar experience, as the reason for her decision not to report the matter to police. She also indicated that her former partner had friends in the police force. [24] The former partner has been extremely violent towards the Principal Appellant, and he appears to be highly motivated to continue his search for the Appellants. The pursuit has been relentless. He has gone to the homes of the Appellants' family members and friends. He has contacted the Principal Appellant and threatened her through social media. His interest in pursuing the Principal Appellant has not dwindled. I cannot say it was objectively unreasonable for the Appellants to flee the country before seeking a resolution through local police. Especially having reviewed the evidence about the experiences of similarly situated women, it is difficult to say that state protection would have been reasonably forthcoming under these circumstances. [25] Considering the social and cultural factors mentioned above, the available documentary evidence, the experiences of similarly situated women, and the particular profile of the Appellants' agent of persecution, I am satisfied that the Appellants' failure to seek state protection is not fatal to their claim. The Appellants have presented clear and convincing evidence of the state's inability or unwillingness to protect them. I determine that adequate state protection would not be available for them in Antigua and Barbuda. CONCLUSION [26] For the above reasons, I disagree with the RPD's decision. There is no valid reason to doubt the credibility of the Appellants' allegations, which the RPD accepted. The threat from the Principal Appellant's former partner persists, and it extends to both the Principal Appellant and the Minor Appellant. State protection would not be forthcoming in this situation. Antigua and Barbuda is a small country with a population of less than 100,000 people. Given the small size and population of the country, there is no viable internal flight alternative. I find that the Appellants each have a well-founded fear of persecution on account of their membership in a particular social group. I therefore set aside the RPD's decision and substitute a positive determination. The Appellants are Convention refugees. [27] The appeal is allowed, pursuant to paragraph 111(1)(b) of the IRPA. (signed) M. Oh M. Oh January 6, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 2 Exhibit P-3, Response to COVID-19 communiqué, dated August 18, 2020. 3 Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 4 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94 (CanLII), [2008] 4 FCR 636, at para. 38. 5 Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234 (CanLII) at para. 37. 6 Aurelien v. Canada (Citizenship and Immigration), 2013 FC 707 (CanLII), at paras. 7-9; Majoros v. Canada (Citizenship and Immigration), 2013 FC 421 (CanLII), at paras. 10-11; see also Muntyan v. Canada (Citizenship and Immigration), 2013 FC 422 (CanLII), at paras. 9-10. 7 Peralta v. Canada (Minister of Citizenship and Immigration), 2002 FCT 989 (CanLII), at para. 18. 8 Ortiz v. Canada (Minister of Citizenship and Immigration), 2006 FC 1365 (CanLII) at para. 53. 9 Canada (Citizenship and Immigration) v. Kadenko, 1996 CanLII 3981 (FCA); see also Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171, at paras 45-46. 10 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package ("NDP") for Antigua and Barbuda (May 31, 2019), items 5.5 and 2.1. 11 Ibid., item 2.1. 12 Ibid., item 5.6. 13 Ibid., item 5.1. 14 Ibid., item 5.6. 15 Ibid. item 5.1. 16 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 182. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Antigua and Barbuda (May 31, 2019), item 5.4, at section 5.3.3. 18 Ibid. 19 Ibid., item 5.4, at section 5.4.3. 20 Ibid., item 5.4., at section 5.5.5. 21 Ibid., item 5.4, at section 5.5.6. 22 Ibid. 23 Chairperson's Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, Update, Guideline issued by the Chairperson Pursuant to Section 65 (3) of the Immigration Act, IRB, Ottawa, March 1993; Update November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-00604 TC0-00605 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