TB8-19455

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 : TB8-19455; TB8-19456; TB8-19457; TB8-19458 Private Proceeding / Huis clos REASONS AND DECISION  MOTIFS ET DÉCISION Person who is the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 29, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Kolesnik Orr Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The principal appellant, XXXX XXXX, and her minor daughters, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX, who are citizens of Italy and Nigeria, are alleging a fear of racial discrimination and xenophobia in Italy. They are also alleging that they fear being persecuted in Nigeria for refusing to have the minor daughters excised and for opposing the will of the principal appellant's father.1 [2] The Refugee Protection Division (RPD) found that the appellants, referred to at the time as the claimants, had failed to rebut the presumption of the Italian authorities' ability to protect them from the problems encountered in that country.2 [3] In their memorandum, the appellants submit that the RPD violated the principles of natural justice, erred in law in its analysis of their credibility and erred in law by not taking into account in its analysis of state protection their past personal experiences interacting with Italian authorities.3 The Refugee Appeal Division dismisses the appeal. [4] After conducting my own analysis of the record, I conclude that the determinative issue is whether or not the appellants rebutted the presumption that the Italian authorities are capable of protecting them. I also conclude that, on this issue, the RPD did not commit the alleged errors. ANALYSIS OF THE APPEAL [5] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns the RPD's assessment of credibility in situations where it enjoys a meaningful advantage.4 That said, the RAD's role is not to carry out a de novo consideration of the refugee protection claims, but rather to determine whether, as submitted by the appellant, the RPD erred.5 [6] After conducting my own analysis of the record, I find that the RPD did not enjoy a particular advantage and that the correctness standard of review must be applied. A. The principles of state protection [7] Absent a complete breakdown of state apparatus, it should be assumed that the state is capable of protecting a claimant, as international protection comes into play only when a claimant has no other recourse available.6 [8] To rebut this presumption, a person who claims refugee protection must present clear and convincing evidence of a state's inability to provide them adequate protection. In situations where protection might be provided, a person claiming refugee protection is required to approach their own state for protection.7 [9] The more democratic the state's institutions, the more a person claiming refugee protection must have done to exhaust all courses of action open to them, which means that, in a functioning democracy, a person claiming refugee protection will have a heavy burden when attempting to show that they should not have been required to exhaust all of the reasonable recourses available to them domestically.8 B. The appellants' specific situation [10] When analyzing whether adequate state protection exists in a given country, many factors must be taken into consideration: - the nature of the human rights violation; - the profile of the alleged agents of persecution; - the efforts made by the victims to seek protection from authorities; - the response of the authorities to requests for their assistance; and - the available documentary evidence. The appellants' testimony and arguments [11] In their Basis of Claim Forms, the appellants state that because of their racial identity, in Italy they encountered discrimination and xenophobia in several areas: when searching for employment, at work, in interactions with police officers and at school.9 [12] In their memorandum, the appellants first submit that the RPD violated the principles of natural justice by referring to a single example involving two different questions, without considering that it was contradictory.10 In my opinion, this is not a question of procedural fairness, but rather a question of assessment of evidence. I will return to this issue later. [13] They then submit that the RPD erred in law in its analysis of their credibility when it found that they had not submitted sufficient evidence as to why they were refused social assistance on two occasions. This is because the RPD never questioned their credibility and because there is a principle of assuming the truthfulness of sworn testimony. Consequently, there was no reason to require that they corroborate their testimony by submitting other evidence.11 In my opinion, even if one accepts that social assistance was not granted to the appellants on two occasions, this is not a determinative issue. The determinative issue remains whether or not they rebutted the presumption that the Italian authorities are capable of protecting them. I will return to this issue later. [14] Lastly, they submit that the RPD erred in law by not taking into account in its analysis of state protection their past personal experiences in their interactions with the authorities in Italy.12 This effectively relates to the determinative issue in this appeal, namely, whether or not the presumption that the Italian authorities are capable of protecting the appellants was rebutted. [15] During the hearing, the RPD indicated that it would consider whether, in Italy, adequate protection could be provided to the appellants at an operational level and in light of their circumstances.13 [16] During the hearing, the appellants testified about the racial discrimination problems they encountered at school. They stated that, in class, two of the girls were separated from the other students, that they were told they smelled bad. On two occasions, the principal appellant complained about this situation to the school authorities and also met with the teachers. However, she did not recall whether the police were informed of the situation, which is contrary to what is written in a letter submitted as evidence. She explained that she did not say anything to the police officers because she did not think of doing so and because, in the past, she had had bad experiences with them, in particular because she was asked to identify herself and present her documents.14 One of the girls testified that, at school, they treated her and her sister very, very poorly because they were black. She also stated that they mocked her because her mother came to the school to complain about the situation.15 [17] During the hearing, the principal appellant testified that, at work, she was not able to get a promotion, they told her she smelled bad and they gave her damaged clothing; she complained about the situation to her director, but with no results. She also stated that, in 2014, she stopped working at the plant because it relocated and she then started to sell things in train stations, for example. She also stated that she applied for financial assistance but did not receive anything, either when she was a resident or a citizen, and that they told her to go back to her country if she did not know how to adapt to life in Italy. Lastly, she stated that, if she had to return to live in Italy, she would feel very, very bad, that she would go crazy, so to speak.16 [18] In his written submissions presented to the RPD, the appellants' counsel submits that they experienced a number of difficult moments of discrimination. This caused the girls to have difficulty concentrating at school and to stop attending. He also submits that the principal appellant and her husband experienced racial discrimination at work and that the principal appellant was arrested by the police, who wanted to verify her identity and documents, a situation that was not experienced by white people. After referring to situations involving Africans who, in Italy, were assaulted, including a Nigerian asylum seeker who was killed, he finally submits that the appellants cannot return to Italy because they fear discrimination.17 The Refugee Protection Division decision [19] In its reasons for decision, the RPD presented the appellants' testimony regarding what they experienced in Italy.18 It then found that, on the one hand, some of the problems they experienced in Italy constituted discrimination, but not persecution, and that, on the other hand, with respect to the problems that constituted persecution, they had not objectively established that adequate protection from the Italian authorities would not be provided to them at the operational level.19 After reiterating the principles of state protection, the RPD found that the presumption of the state's ability to protect its citizens applied in Italy.20 It then found that the principal appellant's personal reluctance to take the steps required to request protection from the Italian authorities was not based on objective evidence.21 Lastly, it found that, in light of the circumstances of the appellants' situation in Italy and the fact that there are problems in this country with regard to racial discrimination, the documentary evidence established that there are recourses that provide adequate protection at the operational level to persons experiencing such problems.22 My own analysis of the record [20] It is well established that the person claiming refugee protection has both an evidentiary and legal burden to rebut the presumption of state protection. The claimant must demonstrate, through clear and convincing evidence, that state protection is inadequate. As the Federal Court recently wrote, this involves demonstrating either that the person claiming refugee protection sought state protection but it was not forthcoming, or that they did not try to obtain it because of a well-founded fear that it would not be provided.23 [21] In the case at hand, the appellants did not use the various recourses that exist for people who, in Italy, are victims of various types of racial discrimination or xenophobia. According to the RPD's detailed and nuanced analysis, which did not disregard the difficulties that still exist in Italy, the documentary evidence does not however corroborate the appellants' reluctance to the option of using these recourses that were nevertheless available to them. [22] As for the arguments presented on appeal, I find that they also do not establish that the Italian authorities could not offer them adequate protection. Regarding the arguments concerning the assessment of evidence, they target only a minute part of the overall analysis of the documentary evidence conducted by the RPD. As for the arguments that seek to demonstrate that the RPD did not take into account their past personal experiences in their interactions with the Italian authorities, according to my own analysis of the record, they are simply unfounded. [23] After conducting my own analysis of the record as a whole, I conclude that the appellants did not submit clear and convincing evidence of the Italian authorities' inability to provide them adequate protection from the problems they encountered in that country, of which they are citizens. Consequently, they did not rebut the presumption in this regard. CONCLUSION [24] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX and her minor daughters, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX, are neither refugees under section 96 nor persons in need of protection within the meaning of section 97 of the Immigration and Refugee Protection Act. [25] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette October 29, 2019 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 30 to 71 of the RPD record. 2 RPD reasons and decision, July 19, 2018, pages 3 to 29 of the RPD record. 3 Appellants' memorandum, pages 25 to 32 of the appeal record received on September 7, 2018. 4 Canada (Citizenship and Immigration) v. Huruglica, A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 5 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. 6 Kerdikoshvili v. Canada (Minister of Citizenship and Immigration), No. IMM-4989-16, Strickland, June 6, 2017; 2017 FC 555, paragraph 7 citing the Supreme Court of Canada decision in Ward. 7 Ibid., paragraph 7 citing the Federal Court of Appeal decisions in Villafranca and Carrillo. 8 Ibid., paragraph 9 citing the Federal Court of Appeal decisions in Kadendo and Hinzman. 9 Principal appellant's BOC Form, pages 40 and 44 of the RPD record. 10 Appellants' memorandum, pages 27 and 28 of the appeal record. 11 Ibid., pages 28 and 29 of the appeal record. 12 Ibid., pages 29 to 32 of the appeal record. 13 Transcript of the hearing before the RPD on January 9, 2018, page 13. 14 Ibid., pages 27 to 38. 15 Transcript of the hearing before the RPD on January 23, 2018, pages 28 to 31. 16 Ibid., pages 7 to 14, 23 and 27. 17 Written submissions, pages 259 to 264 of the RPD record. 18 RPD reasons and decision, paragraphs 3 to 14, pages 4 to 7 of the RPD record. 19 Ibid., paragraph 21, page 8 of the RPD record. 20 Ibid., paragraphs 24 to 27, pages 9, 10 and 11 of the RPD record. 21 Ibid., paragraphs 28 and 29, pages 11 and 12 of the RPD record. 22 Ibid., paragraphs 30 to 80, pages 12 to 26 of the RPD record. 23 Pava v. Canada (Minister of Citizenship and Immigration), No. IMM-2115-18, Pentney, September 26, 2019; 2019 FC 1239, paragraphe 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB8-19455; TB8-19456; TB8-19457; TB8-19458 8 RAD.25.02 (2014.09.11) Disponible en français