Date: 20170421

Docket: IMM-4313-16

Citation: 2017 FC 384

[ENGLISH TRANSLATION]

Montréal, Quebec, April 21, 2017

PRESENT: The Honourable Mr. Justice Shore

REASONS FOR JUDGMENT AND JUDGMENT

I.                    Nature of the Matter

[1]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA], against a decision by the Immigration and Refugee Board’s Refugee Appeal Division [RAD] on September 1, 2016, in which the RAD confirmed the decision rendered by the Refugee Protection Division [RPD] on October 8, 2015, dismissing the applicant’s refugee claim filed under section 96 and subsection 97(1) of the IRPA.

II.                 Facts

[2]               The applicant is a 40-year-old citizen of India and has been a permanent resident of Italy since 1995.

[3]               After his arrival in Italy, he operated and owned a pizzeria near Milan. Eventually, the mafia allegedly demanded money and assaulted him in his restaurant in February 2014.

[4]               He reportedly asked the local police for help but was told that he had to either adapt to Italy or return to India. He later went to police headquarters to meet with the authorities, but this attempt was also unsuccessful.

[5]               He left Italy for India in March 2014, but was unable to recover a parcel of land that his uncle refused to give him; the applicant was allegedly intimidated during this dispute.

[6]               He subsequently returned to Italy on March 22, 2014; his problems with the mafia resumed, and it took control of his restaurant in March 2015.

[7]               He left Italy again in April 2015. After his departure, his brother-in-law was in a car accident, and the applicant claims that he was in fact the target.

[8]               The applicant arrived in Canada in May 2015 and claimed refugee protection on July 10, 2015.

III.               Decision

A.                 RPD decision – October 8, 2015

[9]               First, the Panel stated that it was satisfied with applicant’s identity. Mr. Singh explained that he had worked for a long time to save enough money to open a restaurant. After the restaurant opened, the mafia allegedly showed an interest and wanted to take his earnings. The situation became such that the applicant left Italy for Canada.

[10]           The Panel found that although the situation was regrettable, the applicant had not rebutted the presumption that he could avail himself of the protection of the Italian State, a democratic country. The applicant allegedly filed a complaint with the local police on one occasion, without success. He also reportedly tried to approach a higher authority by going to police headquarters.

[11]           The Panel held that, while the documentary evidence established the existence of organized crime in Italy and a certain level of racism and discrimination against foreign nationals, the applicant’s attempts to seek assistance were insufficient to establish that he could not avail himself of state protection.

B.                 RAD decision – September 1, 2016

[12]           The RAD first established that it must, according to Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 [Huruglica], analyze the RPD’s decisions according to the correctness standard, except for questions of credibility for which the RAD considers that it must show deference.

[13]           The RAD then recalled that following the principles in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 [Ward], the more democratic a state is, the heavier the burden of rebutting the presumption of protection. In the view of the RAD, the documentary evidence showed that Italy is a democratic country [TRANSLATION] “that has functional judicial institutions and effective legal remedies against criminal offences and discrimination.” It then noted that Italy has put a great deal of effort into fighting the mafia. Thus, according to the RAP, the RDP did not err in finding that the applicant [TRANSLATION] “had made insufficient efforts to seek protection in Italy.” Since the applicant did not file a formal complaint, he failed to rebut the presumption of state protection.

IV.              Issues

[14]           This case raises the following issues:

1.      Did the RAD err in fact and in law by failing to refer to all the evidence in the record?

2.      Did the RAD err in fact and in law in its findings with respect to state protection?

3.      Did the RAD err in fact and in law by finding that the applicant was subject to exclusion under article 1E of the Convention?

[15]           These are questions of mixed fact and law subject to the reasonableness standard (Huruglica, supra, at paras 32–35).

V.                 Relevant provisions

[16]           The following provisions of the IRPA apply:

VI.              Analysis

[17]           For the following reasons, the application for judicial review is dismissed.

A.                 Reference to evidence in the record

[18]           The applicant argues that the RAD erred in fact and in law because it failed to explain why it did not consider a portion of the documentary evidence, including a report on the long delays for investigations on abuses within law enforcement, as well as the major discrimination faced by foreign nationals.

[19]           The respondent submits that, contrary to the applicant’s suggestion, the RAD was not required to comment on all the passages in the contradictory documentary evidence, and there is a presumption that it has done so. Furthermore, the respondent argues that the evidence to which the applicant is referring concerns the time to complete investigations on police abuse, as well as discrimination against foreign nationals. With respect to timeliness, the Federal Court has already ruled that it must not impose an effective standard of protection on other countries that is not always met in Canada (Smirnov v. Canada (Secretary of State), 1994 CanLII 3545, [1995] 1 FCR 780 (FCTD)). With respect to the discrimination, the RAD reportedly referred to it expressly in its reasons.

[20]           The Court notes that the RAD makes specific reference to the documentation in the record (RAD decision at paras 28, 30 and 34). The RAD is not required to comment on each statement in the objective evidence contained in a record. Therefore, the Court finds that, on this aspect, the RAD did not commit a reviewable error.

B.                 State protection

[21]           The applicant submits that the RAD failed to assess the level of discrimination and available remedies, or to consider that the applicant had approached the police, without success. It found that the applicant could obtain assistance from the authorities without considering the evidence in the record which showed otherwise.

[22]           The respondent also argues that the RAD’s finding with respect to state protection is reasonable. Indeed, jurisprudence of the Federal Court of Appeal teaches that a refugee claimant “must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful.” (Canada (Citizenship and Immigration) v. Kadendo, 1996 CanLII 3981 (FCA), [1996] FJC No 1376 (C.A.) (QL)).

[23]           In Ward, the Supreme Court established that state protection must be sought in the country of origin where such protection could have reasonably been provided. Furthermore, in Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171, the Federal Court of Appeal recalled, at para 57, that “a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status”. Also, in Flores Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, the Federal Court of Appeal reiterated at para 30 that “a claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate.”

[24]           The RAD had to determine whether the applicant had availed himself of protection from Italy after he was targeted by the mafia. Given that Italy is a democratic country in the European Union, the applicant’s burden to prove that he sought state protection and that said state had failed to meet this responsibility was heavy. In this sense, given that the applicant failed to file a formal complaint with the police and considering the objective documentation concerning the relative effectiveness of legal remedies against criminal offences, as well as efforts to fight the mafia, it was reasonable for the RAD to find that the applicant had failed to meet his burden of proof.

[25]           Therefore, the Court finds that the RAD, with respect to its findings regarding state protection, did not make a reviewable error.

C.                 Exclusion under article 1E of the Convention

[26]           The applicant argues that the RAD erred in law by finding exclusion because he believes that his exclusion under article 1E of the Convention should not apply since he would be at risk if he returned to Italy, as the police will not protect him from the mafia. He sought protection from the state but was unsuccessful. This is therefore inadequate for the applicant.

[27]           The respondent, for his part, argues that the RAD correctly concluded that the applicant was excluded under article 1E. In Zeng v. Canada (Citizenship and Immigration), 2010 FCA 118, at para 28, Layden-Stevenson J. summarized the determination of applicability of article 1E as follows: “Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded.” In the case at hand, the applicant admitted that he is a permanent resident of Italy and, therefore, would be excluded. Thus, when an exclusion clause applies, the RAD would not have to rule on inclusion in the country for which refugee status is being claimed.

[28]           Section 4 of the first article of the Convention relating to the Status of Refugees (1952), which is the basis of section 98 of the IRPA, states the following: “This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.” This provision is therefore applicable to the applicant, since he is a permanent resident of Italy.

[29]           The Court finds that it was therefore reasonable for the RAD in finding the applicant’s exclusion.

VII.            Conclusion

[30]           The application for judicial review is dismissed.

JUDGMENT in IMM-4313-16

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question of general importance to be certified.

“Michel M.J. Shore” 

FEDERAL COURT

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