TB5-10641

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 : TB5-10641 TB5-10642 TB5-10643 TB5-10644 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXX XXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 9, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Steven Morris 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 (the Appellant), his spouse, XXXX XXXX XXXX XXXX XXXX, and their children, XXXX XXXX and XXXX XXXX, all citizens of Brazil, are appealing the decisions of the Refugee Protection Division (RPD) denying their claims for refugee protection. No new evidence has been submitted in support of their appeals, nor are the Appellants requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. They are, however, asking the RAD to set the determination aside and remit the matter for reconsideration by a differently constituted panel of the RPD. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. BACKGROUND [3] The Appellant alleges that they have experienced some traumatic events in their lives, but in particular the last two, which allegedly led to their departure from Brazil. The first one took place on XXXX XXXX, 2014 when leaving a shopping mall; four bandits surrounded the car in front of them as they were leaving. This car accelerated in reverse in order to escape, which caused a cumulative effect on the cars behind. The Appellants were able to flee, however they heard about the episode in the newspaper. [4] On XXXX XXXX, 2014, the Appellant was coming home, when he witnessed an assault on a nearby street. A neighbour was approached by two robbers, who killed him with a single shot. Since the Appellant observed the incident, the perpetrators motioned for him to remain at the scene, however he fled immediately. The following day, however, the Appellant was approached by the perpetrator, who identified himself as a member of the PCC gang. He was threatened that if the Appellant went to the police, he and his family would be killed. Moreover, according to the Appellant, the perpetrator was aware of where the Appellant lived, worked and the whereabouts of his family members. [5] The Appellant said nothing to the police. However, out of fear, his wife went to the police on XXXX XXXX, 2014, and they told her they would investigate. However, on XXXX XXXX, 2014 she received a threatening phone call, in which it was revealed that she had been to the police. The caller identified himself as being a member of the PCC group, and indicated that the police were in collusion. That same night, the Appellant woke up with the sound of breaking glass from the balcony door of their apartment. A rock had been thrown and the door was shattered. This incident led to the Appellants' decision to leave Brazil. They sold their apartment at the end of XXXX 2014, went to live with the Appellant's in-laws, and the Appellant left his employment as a XXXX, where he had worked for 12 years. They remained in Brazil until XXXX 2014, however the Appellant's in-laws began to experience harassment. In fact, they decided to move to Germany where the Appellant's sister-in-law resides. The Appellant chose Canada due to the English language and his skills as a XXXX which he understood could be validated in Ontario. The Appellant attempted to obtain permanent residency status within the "skilled labour category", however, he was unable to do so, and hence applied for asylum. ROLE OF THE RAD [6] Counsel has made no submissions in this regard. However, a recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. 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." APPELLANT'S SUBMISSIONS * Did the RPD err in its findings that there is no nexus to any of the Convention refugee grounds? * Did the RPD err in its findings that there is a viable Internal Flight Alternative (IFA)? Nexus [7] The RPD noted that the Appellant alleges that he fears harm at the hands of the PCC group as he witnessed a crime. The RPD did not accept, as counsel submitted, that the agents of persecution were the state, as it found that rogue police officers with possible connections to the PCC did not translate into fear of the state by the Appellants. In fact, the RPD found that the Appellants were victims of crime and there was no evidence that the police had contacted the Appellants or had been involved in the incident in which a stone was thrown through their windows. The RPD noted that the police had wanted the Appellant to provide information on what he had witnessed, he refused to do so, and the investigation was therefore closed. The RPD considered the jurisprudence from the Federal Court with respect to individuals who are victims of crime, corruption or vendettas, and noted in general that these individuals do not establish a link between their fears of persecution and one of the Convention grounds in the definition of Convention refugee, namely, race, religion, political opinion, nationality, and membership in a particular social group. The RPD concluded that in the particular circumstances of this claim, the Appellants had not established a nexus. [8] The Appellant argues that after he witnessed a violent homicide, and subsequently his wife reported the same to state authorities, this caused him and his family to be targeted. He argues that they were simply exercising their political/civic/social duties in reporting to the authorities. It is submitted that this type of act constitutes an expression of political opinion in that this reporting of the act alone resulted in their persecution. Moreover, it is argued that the only way the PCC group could have obtained knowledge regarding the fact that his wife had reported the incident to the police, was through the state officials themselves contacting the PCC group and advising them of same. [9] Furthermore, it is argued that "membership in a particular social group" is relevant within a "family context" in that his wife and family are targeted as a result of the Appellant's actions, regardless of nexus. [10] On this latter issue, the Federal Court has provided guidance with respect to this issue. It is clear from the jurisprudence that: ...derivative refugee claims based on family group cannot be sustained when the primary victim of persecution does not come within the definition of a Convention refugee. (Asghar, Imran Mohammad v. M.C.I. (F.C., no. IMM-8239-04), Blanchard, May 31, 2005; 2005 FC 768, and Zaidi, Syed Tabish Raza v. M.C.I. (F.C., no. IMM-8779-04), Martineau, August 9, 2005; 2005 FC 1080. ... Any claim based on the family as a particular social group is premised upon a finding that the principal claimant in that family has established a nexus already; as the RPD rejected the idea that small business owners targeted by Los Zetas are a particular social group, the family-based claims must fail. Ramirez Aburto, Williams v. M.C.I. (F.C., no. IMM-7680-10 and no. IMM-7683-10), Near, September 6, 2011; 2011 FC 1049... ...While family relationship may constitute a "particular social group," it is equally well-established that the mere fact a claimant is targeted because of his family ties is not sufficient to bring the persecutory treatment within that category. The primary victim must be persecuted on a valid Convention ground. Bakhtiari, Ashor v. M.C.I. (F.C., no. IMM-1446-12), de Montigny, December 6, 2013; 2013 FC 1229. [11] The RAD must, therefore, examine if the Appellant (male claimant) has established a link to any of the five Convention grounds. The RAD concurs with the RPD that there is no such nexus. In addition to the jurisprudence cited by the RPD, the RAD has also taken guidance from the Federal Court in Diaz, Wendy Graciela v. M.C.I. (F.C.T.D., no. IMM-3270-02), Rouleau, May 7, 2003; 2003 FCT 561. The facts of this claim were as follows: The claimant had witnessed the kidnapping of her godmother's children by three officers of the Criminal Investigations Department. The Court found that the CRDD was justified in determining that, having been the witness of a criminal act, she was the victim of criminal behaviour and that this fear of being persecuted by criminals did not fall under one of the five grounds set out in the definition of Convention refugee. The Court noted that the case law has recognized on numerous occasions that acts do not become acts of persecution simply because the person who committed them is a government official. The Court further determined that it was open to the panel to find, in preferring the documentary evidence to the claimant's testimony, that the perpetrators of the crime had not acted on behalf of the State but were malevolent officers who had not acted on behalf of the State. (emphasis in original) [12] The RAD finds that the agents of persecution are criminals and the police were not participants in the criminal acts of threats and intimidation. [13] The Federal Court stated in Garcia v. Canada (Minister of Citizenship and Immigration) 1999-03-04 IMM-1792-98): ...the applicant claims to fear persecution due to political opinion imputed to him because he witnessed murders committed by DIC agents and went to the office of the Committee for Human Rights to report what he had seen. The Honourable Judge stated the following: ...The proper test identified in the case law regarding political opinion is the authorities" perception resulting from the applicant's activities.1 In the case at bar, the question is whether there was any evidence on which the Refugee Division might have found that political opinion could have been imputed to a witness to a crime. Although I sympathize with the applicant's situation, a careful reading of the documentary evidence does not lead me to such a finding. In fact, the documentary evidence refers to several human rights violations and to the danger human rights advocates and activists may face. However, nowhere was I able to read that political opinion could be imputed merely as a result of witnessing and reporting a crime." [14] In Palomares,2 the learned Judge stated: ...It is my view that these elements of proof do not suffice to establish the nexus which is required for refugee status. While denouncing corruption can be a political act, not every brush with corruption amounts to a political act or is perceived by the corrupt as a political act. The risk to which the applicant is exposed arises from her status as a witness to a crime. Even if members of the state apparatus are involved, the fact of making a complaint does not necessarily involve political action, nor does it mean that the complaint will be seen by them as political action. [15] Upon review of the transcript of the proceedings, the RAD finds that there was no evidence to persuade it that the actions by the PCC against the Appellant were anything but criminal, and there is no evidence that the police participated in any threats against the Appellant and even if a corrupt police official informed the PCC of the complaint filed, that does not create a nexus. Moreover, there is no evidence that the police perceived the actions of the Appellant as an expression of political opinion. Although the Appellant's wife went to the police, she was unable to provide accurate information as she was not the witness to the crime. Moreover, neither she nor her husband had initiated any action, which would in any way be construed as political opinion in the broadest sense. Accordingly, the RAD finds that the conclusions by the RPD are absent of any error and we therefore concur with the RPD that the Appellants have not established a nexus to any of the five Convention refugee grounds. Internal Flight Alternative (IFA) [16] The RPD after finding no nexus to this claim, went on to consider the claim under section 97 of IRPA and the viability of an internal flight alternative to Rio de Janeiro. [17] The RPD cited the Federal court jurisprudence, utilizing the two-prong test as set out in Rasaratnam3 and Thirunavukkarasu.4 First-Prong [18] In essence, the first-prong addresses whether or not the Appellants would be at risk in the named IFA, and if the perpetrator(s) would be motivated to seek them out. The RPD noted the large population of Rio de Janeiro, and although it acknowledged that crime is a problem, also noted that the government of Brazil is actively addressing this criminal issue. [19] The RPD also acknowledged that corruption continues to be a problem among the Brazilian police force and that some police officers have been implicated in organized crime and drug trafficking. However, it also noted that the documentary evidence indicates that the police are actively pursuing both criminals and corrupt police. [20] In response to counsel's submissions that the PCC group would locate the Appellants, as there is no time limit for murder, the RPD noted that the Appellants remained in Brazil for five months, two kms from where they had encountered problems, the Appellant continued to work, with no problems following the XXXX XXXX, 2014 threats without incident. It also noted that the Appellant did not file a police report to indicate his witnessing of a crime and his wife was told that the investigation was closed. The RPD found no evidence to suggest that the PCC would actively continue to pursue him and there was nothing in the documentary evidence to suggest that the Appellant would have to inform the police of their new address. [21] Moreover, in terms of state protection, the RPD noted that the Appellant did not himself approach the police for protection, and when his wife filed a report, and when she could provide only limited information on what actually occurred, he was encouraged to do so, however he did not carry through. Moreover, the RPD indicated that although the perpetrator allegedly was in collusion with a particular police officer, this did not mean that every police officer in Brazil is corrupt. [22] The RPD examined both the favourable and unfavourable evidence with respect to this criminal organization who at least as of several years ago, were able to organize attacks against the police and other institutions. However, it also examined the documentation indicating that the Brazilian government and police demonstrated an ability and willingness to respond to the threats posed by the PCC. [23] The RPD also examined the issue of witness protection and found that there is a program in Brazil that has been in operation since 1996 run by NGOs with federal and state government fundings and that the government has invested 13 million Brazilian Reals into the program. [24] It is submitted by the Appellant that the PCC's presence is throughout Brazil, as is the prevalence of corruption and therefore, Rio de Janeiro or any other city in Brazil is not a viable alternative. Moreover, it is argued that there is no evidence to suggest that the Appellants would not be targeted given the seriousness of the crime the Appellant witnessed. [25] The RAD notes the documentary evidence with respect to the witness protection program. The Brazilian Legal Framework for Investigation, Prosecution and Trial of Transnational Organized Crime, presented at the 134th International Training Course of the UN Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) (UN n.d.a), the Police Chief and Deputy Director of the Special Division for Combating Crime in Brazil indicates that witness protection can be requested by a witness, by a victim, by the Department of Justice, by the police, or by public agencies or entities defending human rights (Costa Dec. 2007, 73). A decision on the granting of protection is made by the judge responsible for the criminal process (ibid.). The report further indicates that arrangements such as change of residence, change of identity and monthly financial support are available to any beneficiary of the program (ibid.). Two sources state that the program also offers social, psychological, medical and other assistance to protected individuals (ibid.; Conectas and GAJOP n.d., 6). The report of the Amarribo Brasil, a civil society organization aiming to fight corruption (Amarribo Brasil n.d.), and the UN Convention Against Corruption (UNCAC) coalition indicates that the law protecting witnesses extends the protection to spouses, descendants and relatives (Amarribo Brasil and the UNCAC Coalition May 2012, 7).5 [26] The Constitution of Brazil, ratified in 1988, gave special attention to oversight of the police. Since Brazil had a history of dictatorship during the 60's and 70's, the new Constitution designated the Public Ministry to serve as "ombudsman." This institution is usually translated as the prosecution, but has many other functions related to the defense of civil rights and collective interests, one of them being the external control of the police. [27] The Brazilian Public Ministry has oversight authority over the two police agencies in Brazil: the Military Police, in charge of preventive patrol; and the Civil Police, in charge of the investigation of crimes. Each state has a different organization for the Public Ministry. In the Federal District of Brasília (Brazil's capital), the Public Ministry has four offices related to police oversight: the Police Oversight Office, the Torture Prosecution Office, the Military Prosecution Office, and the Misdemeanor Prosecutors. The Police Oversight Office, composed of three Prosecutors and administrative staff, has the function of coordinating oversight related to the activities of the Civil Police. They receive citizen complaints and conduct independent misconduct investigations, prosecute civil police officers for crimes and administrative punishment, sue the Civil Police Department, oversee the Internal Affairs investigations, and make policy recommendations. They also visit Police Stations and Prisons to inspect conditions, and oversee the effectiveness of Civil Police investigations. Periodic reports are generated to inform the public of complaint statistics, investigations, and convictions related to police misconduct cases. [28] The Public Ministry has engaged prosecutors, police officers and the community to ensure that the police respect civil rights. [29] In 2007 the Police Oversight Office, in collaboration with community members, developed a booklet, "Citizen Police Project" which discusses the rights and responsibilities of citizens in dealing with police officers, as well as complaint procedures. The Military Police, the Judiciary and the Bar Associations supported the project. The booklet has been used in an advertising campaign to reduce incidents of the abuse of authority, unnecessary street clashes between citizens and officers, and increase accountability of the police. Prosecutors gave lectures for police officers and for students in schools in at risk neighborhoods. The lectures focused on the respect of the civil rights of citizens by police officers, to include illegal arrests, force issues, the right of citizens to ask for officers' names, and the right to file a misconduct complaint and receive information about the outcome of the case [30] In June 2008, a Police Oversight Congress was held in Brasília to discuss new strategies by the Public Ministry. The conference included international lecturers Philip Eure (OPC of Washington, DC), Richard Rosenthal (Independent Monitor of the City & County of Denver, CO), and a video lecture by Merrick Bobb (Police Assessment Resource Center, CA). The conference produced the "Letter of Brasília," with proposals to improve the Public Ministry´s activities in police oversight throughout Brazil. Soon afterwards, the National Association of General Attorneys of Brazil created a special commission to study how to improve the Public Ministry's performance. After a preliminary report of this commission, the National Counsel of the Public Ministry ordered the Attorney General to create procedures to compel all criminal prosecutors to regularly engage in police oversight activities, such as periodic visits to police stations, public reporting, and developing procedures to receive complaints against police officers. 3. Effectiveness of State Protection6 3.1 Police According to Freedom House, violence and corruption remains an "entrenched problem" in the police force (2012). A professor at the International Relations Institute of the Pontifical Catholic University of Rio de Janeiro, who is also the Research Director of the Igarape Institute, a think tank in Rio de Janeiro, states that "very little" is done by the police in practice to protect citizens from criminal agents or groups (Professor 2 Oct.2012). He further points out that "in all Brazilian states the military and civilian police are known to have some elements that are connected to criminal organizations - be they trafficking groups, militia, gambling outfits, racketeers or others" (ibid.). 6/16 Crime situation, including organized crime; police and state response, including effectiveness:7 For instance, Amnesty International reports that, between January and September 2010, 240 people were killed across the capital and greater São Paulo by people linked to police death squads and criminal gangs (AI 2011). Sources state that death squads are often formed by law enforcement officers (ibid.; UN 28 May 2010, para. 30). According to the report of the UN Special Rapporteur, the goal of the death squads is generally to kill for profit (ibid.). Amnesty International indicates that death squads are "often contracted by local businesses to threaten, torture and kill petty thieves" (AI 2011). Sources report that a former city councillor, who denounced death squads in Pernambuco and Paraiba states for many years, was shot to death in 2009 (ibid. 27 Jan. 2009; UN 28 May 2010, para. 32). The report of the UN Special Rapporteur provides another example of a colonel who was killed in 2008 because he began an investigation into death squads in São Paulo that reportedly involved more than 50 military police officers (ibid., para. 33). However, the UN Special Rapporteur reports that, in 2009, the Pernambuco government announced that approximately 400 people were imprisoned for their participation in death squads (ibid., para. 31). The government of Paraiba also launched an investigation of a death squad responsible for 300 murders (Latin American Herald Tribune 7 Jan. 2010). In São Paulo, 14 members of a death squad were arrested for their links to 12 murders (UN 28 May 2010, para. 33).8 [31] The RAD finds that there was insufficient evidence to persuade it that the perpetrators would be motivated to pursue the Appellant in the named IFA. Furthermore, the RAD finds that there was insufficient evidence to suggest that the actions of the perpetrator, who was allegedly in collusion with the police, was anything but a rogue police officer and therefore the RAD finds that the Appellant's argument that this would translate into pursuit is without merit. Finally, in considering any potential risk to the Appellants, the RAD concurs with the RPD that the documentary evidence indicates a witness protection program, which does not appear to be disputed by the Appellant. Finally, the RAD has also conducted an independent assessment of the documentary evidence, and while acknowledging the prevalence of criminality, does not find that there is a serious risk of harm to the Appellants, on a balance of probabilities, if they were to return to Brazil and reside in Rio de Janeiro. [32] The RAD after listening to the audio recording of the proceedings, and conducting an independent assessment, finds that the first prong of the IFA test has been properly considered. The RAD is satisfied that there is no serious possibility of persecution in the part of the country in which the IFA is located. Second Prong [33] Having reviewed the audio recording of the proceedings, the RAD concurs with the RPD that the Appellants provided no other impediments to relocating to the named IFA location. [34] The RAD finds that the Appellant is well-educated and a professional who would have no difficulty in obtaining employment. As stated by the RPD, there is nothing in the documentation which places a demand on the Appellant to reveal his new address or the schools which his children are attending. Moreover, the RAD notes that the Appellants had the resources to come to Canada and in fact chose Canada for linguistic reasons and that his professional skills were transferable. The RAD finds that the RPD correctly assessed the second prong of the IFA test, and found that it would not be objectively unreasonable for the Appellants to relocate in Rio de Janeiro. CONCLUSION [35] After conducting an independent assessment of the entire record, the RAD finds that the Appellants have not established a nexus to any of the Convention refugee grounds, and with respect to their claim under section 97 of the Act, there is a viable internal flight alternative for them in Rio de Janeiro. Accordingly, the RAD finds that the Appellants are not Convention refugees or persons in need of protection. [36] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara December 9, 2015 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 2 Palomares v. Canada (Citizen and Immigration 2000-06-02 IMM-933-99). 3 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 4 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 5 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Brazil (version 17 July 2015), item 7.2. 6 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Brazil (version 17 July 2015), item 7.2. 7 Exhibit RPD-1, RPD Record, NDP for Brazil (version 17 July 2015), item 7.2, code: BRA104224.E. 8 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Brazil (version 17 July 2015), item 7.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10641 TB5-10642 TB5-10643 TB5-10644