VB4-00750

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 : VB4-00750 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Vancouver, BC Appel instruit à Date of decision June 17, 2014 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) N/A Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Marin Debruyn Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada (the "appellant" or the "Minister") appeals the February 18, 2014 determination of the Refugee Protection Division (the "RPD") to grant refugee protection to XXXX XXXX XXXX (the "respondent"), a citizen of Jamaica. The claim was heard on February 4, 2014 with an oral decision being rendered by the RPD on that date. The RPD determined that the respondent was a person in need of protection pursuant to subsection 97(1) of the Immigration and Refugee Protection Act ("IRPA" or the "Act").1 DETERMINATION [2] Pursuant to subsection 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and refers the matter to the RPD for redetermination by a differently constituted panel. The appeal is allowed. BACKGROUND [3] The Minister/appellant did not intervene before the RPD. On March 4, 2014, the Minister filed a Notice of Appeal with respect to the determination of the RPD. The Minister's Appellant's Record (AR)2 was filed on March 20, 2014. [4] The respondent had counsel before the RPD but does not at the RAD. The respondent has not filed a Response to an Appeal and has not otherwise participated in this appeal. [5] No transcript of the proceedings before the RPD has been included in the AR. The Minister has not made any specific references to portions of the RPD testimony or submissions by way of time-code references to the compact disc (CD) of the RPD hearing which forms part of the RPD Record (RPDR)3 and is found at the back of that Exhibit. [6] The Minister does not seek to present "new" evidence to the RAD pursuant to subsection 110(4) of IRPA but does seek a hearing before the RAD under subsection 110(6) of the Act.4 Basis of Claim [7] The 30-year-old male respondent, a national of Jamaica, left that country for Canada in XXXX 2012 in order to work. Here, he met a woman in XXXX 2012 with whom he began a relationship. She is a citizen of Canada. The respondent alleged that, when this woman's previous partner, who is also the father of the woman's young Canadian child, learned that the respondent had begun a relationship with the woman, he began to make a series of voicemail threats from Jamaica that the respondent would be killed if he returned to that country. RPD Decision [8] In a brief, one and a half page oral decision5 the RPD determined that the respondent was a person in need of protection. The RPD Member also found that adequate state protection would not be available for the respondent in his country. GROUNDS OF APPEAL [9] In this appeal, the Minister submits that the RPD's determination was not reasonable inasmuch as it lacked justification, transparency and intelligibility. The Minister submits, inter alia, that the reasons provided by the RPD are insufficiently articulated so as to be clear, that findings of fact central to a determination on state protection were not made and that the RPD applied the wrong standard of proof when determining that the respondent was a person in need of protection.6 REMEDY SOUGHT [10] The Minister seeks an order that the RAD set aside the determination of the RPD and substitute its own determination that the respondent is neither a Convention refugee nor a person in need of protection. [11] Alternatively, the Minister seeks an order that the claim be referred to the RPD for a redetermination. STANDARD OF REVIEW [12] The Minister submits that the appropriate standard of review the RAD should apply in assessing the determination of the RPD is reasonableness. [13] When considering such standards with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada in Dunsmuir7 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [14] In what is, to my knowledge, the first Federal Court review of a RAD decision regarding the appropriate standard of review to be applied by the RAD, Justice Shore on May 26, 2014 in Iyamuremye8 confirmed that, with respect to findings of fact and of mixed fact and law, the standard of review to be applied by the RAD in assessing the determinations of the RPD is reasonableness. The standard regarding matters of law is correctness. [15] To the extent that the Minister has raised the issue of the reasonableness of the RPD determination, reasonability is concerned with the justification, transparency and intelligibility of the decision-making process as well as whether the decision falls within a range of possible, acceptable outcomes, defensible in respect of the facts and law.9 In my opinion, there is no substantive reason why the RAD should not apply a similar definition of reasonableness. ANALYSIS OF THE MERITS OF THE APPEAL [16] The RPD found that the respondent had established that he is a citizen of Jamaica. The Minister has not appealed that finding. [17] In concluding that the respondent was a person in need of protection, the RPD Member made the following findings with respect to the credibility of the respondent's allegations:10 I found the claimant's testimony to be very vague, very difficult to follow and none of the contradictions that arose from the declaration of the immigration officer were explained to my satisfaction by the claimant. However, there was a witness who came to testify and this is the claimant's girlfriend and she was very credible. She was clear. She was straightforward and she explained to me everything that happened and she explained to me why she fears for you, sir. She fears for your safety, for her own safety and for her son's safety; however, she's Canadian and the son also so I'm not going to evaluate their fear. They are Canadian. I have to evaluate your fear. She was able to explain me some of the contradictions between the written version of both of your interviews and some of the contradictions with your testimony this morning. Some contradictions were not explained. For example, did she call the police? Did she not? Did you call the police? What I have to determine, sir, is if you are in danger if you return to your country and I have to consider the whole of the evidence. Yes, there are contradictions in your evidence but overall I find that, and this is because of your girlfriend's testimony, I find that the whole allegations are credible as a whole. [18] And later, the Member found:11 So what I believe, I believe that you are in a relationship with a woman who was before in a relationship with a violent man. This violent man is in Jamaica. He's a Jamaican citizen. I believe that. I believe that he has threatened her not to have another boyfriend and he has threatened you because you take care of his child. So I think this is sufficient for me to believe that you are in danger if you return to your country. [19] With respect to the question of state protection the Member concluded:12 Also I have considered the documentary evidence. In your country police is corrupt. There is little protection in case of domestic violence; in case of honour crimes. The prevalence of violence in your country is very high and at the same time for as little time as I've been able to see you, you look a very naive person so this will increase the danger for you if you return to your country I don't feel that you would be able to protect yourself and because of the documentary evidence I don't think that the police would even be interested in helping you. [20] The above extracts from the RPD oral decision constitute the Member's reasoning in coming to the conclusion that the respondent was a person in need of protection. When analyzed applying the standard of reasonableness, I find the Member's decision to be generally problematic. I find that the decision does not meet the test set out in Dunsmuir of being justified, transparent and intelligible. As discussed in the following, this is particularly so with respect to the RPD's handling of the question of whether or not the respondent had successfully rebutted the presumption of adequate state protection should he return to Jamaica. [21] In the reasons, the Member found that there were a number of contradictions between what the respondent had told to Canadian immigration officials at the time of his initial interviews and his testimony before the RPD. The Member then found that these contradictions were resolved through the testimony of the witness, the respondent's Canadian girlfriend. However, in her reasons the Member never specifically identifies the contradictions in any way, nor does she describe how, or in what fashion, these contradictions were resolved through the testimony of the witness. In trying to understand the process by which the RPD apparently overcame the significant credibility issues of the respondent she initially mentioned, it is impossible to understand how that might of transpired without knowing what those contradictions were. The decision is not transparent in that respect. This also makes it impossible to know if the resultant resolution of the contradictions was justified. [22] The Minister takes specific issue with the RPD's treatment of the question of state protection. I find that the Minister's submission in this regard has merit and is determinative of this appeal. [23] When considering state protection,13 in her brief seven-line treatment of the question I find that the RPD Member makes a series of conclusive declarations without any real or adequate consideration of the evidence available to her. The Member states that she "considered the documentary evidence" but otherwise makes no reference whatever to any particular document before categorically stating that the police in Jamaica are corrupt. She then makes reference to very little protection with respect to "domestic violence; in case of honor crimes". She notes a high level of violence in Jamaica, that the respondent looks like a very naïve person, that the Member does not think he would be able to protect himself and that the police would not even be interested in helping him. [24] In the Minister's AR, the Minister points out14 specific references to be found in the May 3, 2013 National Document Package (NDP) regarding Jamaica which had been disclosed to the RPD.15 The Minister notes that the RPD does not refer to any specific documents when coming to the conclusion that the police are corrupt: Item 7.1 of the NDP refers to police corruption but it states this in the context of international drug smuggling. It also states that there has been progress in combating corruption. Through strong leadership, democratic institutions, and support from the United States and other international partners, Jamaica continued to make slow but steady progress in combating narcotics trafficking, corruption and organized crime in 2012. Item 7.8 of the NDP indicates that the police have a functioning anti-corruption office. Finally, the Anti-corruption Branch continued to make headway in weeding out unsuitable officers. A total of 66 persons were arrested and charged, including 39 sworn officers and 27 civilian support staff. [25] The Minister also submits, reasonably in my view, that the country condition reports concerning domestic violence contained in section 5 of the NDP do not consider the factual context of this particular claim in that the documentary evidence considers violence arising between spouses (almost entirely males against their female partners) and not with a jealous former spouse pursuing a subsequent partner of his previous partner. Also, I could find no reference in the documentary record to the "honour crimes" referred to by the RPD. [26] Greatly contributing to what I find to be a lack of transparency in the Member's state protection conclusion is the unresolved question of whether or not the respondent or his girlfriend ever, in fact, made any efforts to seek state protection from authorities in Jamaica. In that regard I have reviewed the RPD Record and listened to the CD of the entirety of the RPD proceedings. [27] In his interview with Canada Border Services Agency (CBSA),16 the respondent stated that, after receiving threatening voicemails, he contacted the police in Jamaica on one occasion, sometime in XXXX 2013. He told the CBSA Officer (the "Officer") that the police said they would "warn the guy" and that they did. He said that he did not follow up on this call but that he told his girlfriend to do so. He stated that she phoned sometime in XXXX 2013 and that the police warned the man again. [28] The girlfriend was also interviewed by CBSA.17 She was asked if the respondent had received any threats from Jamaica and she responded, "I am not sure. Jamaica is not very safe." She was then asked if she had ever called the Jamaican police on his behalf to which she responded, "No why would I?" She then advised the Officer that her former boyfriend had made telephone threats against the respondent because of his involvement with the girlfriend and her child. The Officer then went back to continue his interview with the respondent and advised him that the girlfriend had said she had never called the Jamaican police and asked why the respondent stated that she had. The respondent said, "She did call." [29] In his RPD testimony, the respondent told the Member that he had never phoned the Jamaican police himself but that his girlfriend had done so. [30] The girlfriend then testified that she took her son to see his natural father in Jamaica in XXXX 2012. This was before she became involved with the respondent. She found the man in Jamaica to be very different from the kind man she had been previously been involved with in Canada. The man was now very abusive, beating the woman and threatening the child, both in public and in his house. On one occasion, when he attacked her in the street in front of police officers, they did nothing because they were off-duty. [31] The girlfriend also mentioned that, when both she and the respondent were taken into custody in Canada (because a neighbor had heard them arguing and called the police), she told the police about the calls she had been receiving from the man in Jamaica but that they advised her there was nothing they could do inasmuch as he was still in that country. Coincidentally, this was the event that brought the respondent to the attention of the immigration authorities, directly leading to his application for refugee protection. [32] Importantly, the Member asked the girlfriend whether she had ever contacted the police in Jamaica with respect to the threatening phone calls. She responded by stating that she had never done so. She was also asked if she knew why the respondent had told the CBSA Officer that she had. She could not explain why he might have told this to the Officer but, perhaps, the Officer was mistaken in his declaration. After being confronted with these inconsistencies and contradictions, the girlfriend then testified that she had called a friend in Jamaica who works for the police about the phone calls who subsequently advised her that he had gone to visit the man who had been harassing her and the respondent and warned him to stop bothering them. The Member properly noted that the witness had not come up with that evidence until after the contradictions noted above were brought to the witness' attention. [33] In dealing with this issue the Member concluded: I have to evaluate your fear. She was able to explain me some of the contradictions between the written version of both of your interviews and some of the contradictions with your testimony this morning. Some contradictions were not explained. For example, did she call the police? Did she not? Did you call the police? (RAD emphasis) [34] Thus it is clear that the Member never did make a finding as to whether or not the respondent or anyone on his behalf made any inquiries of Jamaican authorities as to whether the appellant could expect any assistance from them upon his return to that country. The Minister submits that, "She is required to make a finding of fact or at least a more thorough analysis of this point as it is central to a determination of state protection."18 [35] I agree with the Minister and find that the RPD's failure to come to a credibility conclusion, one way or the other, with respect to attempts to seek state protection or to try to ascertain its capabilities in Jamaica, fatally undercuts the Member's ultimate conclusion on that material issue rendering the decision unreasonable. In coming to this conclusion, I note the following principles which should come into play when the RPD assesses the question of state protection. [36] To rebut the presumption of state protection, a claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens, absent an admission by the national's state of its inability to protect that national.19 A claimant who alleges that state protection is inadequate must persuade the Immigration and Refugee Board (IRB) that the evidence establishes that the state protection is inadequate. The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the IRB, on a balance of probabilities, that the state protection is inadequate.20 A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.21 The appropriate test for determining a state's capacity to protect its citizens is the same whether the claim for refugee protection is made under section 96 or section 97 of IRPA.22 [37] As stated by the Supreme Court of Canada in the seminal case of Ward in 1993,23 a claimant is required to approach his state for protection in situations in which protection might reasonably be forthcoming: .... The claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities: otherwise, the claimant need not literally approach the state. [38] In the absence of a compelling explanation, where the state is a functioning democracy having a willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim.24 This is so even where the protective services of the state have gaps or deficiencies.25 It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system.26 [39] Jamaica is a functioning democracy with institutionalized authorities such as police and a military. This is not a case where the state itself could be called "a failed state" nor is it the alleged agent of persecution or harm. There is no evidence that the mere attempt to seek state protection would put the respondent at any appreciable risk solely or primarily because of such an effort. [40] The question of whether or not the respondent or his girlfriend contacted police in Jamaica is a matter of credibility which should lead to a finding of fact by the RPD. An assessment of the reasonability of that finding would call for considerable deference by the RAD given that the RPD had the benefit of hearing the direct evidence of both witnesses. [41] However, the problem in this case is the RPD Member's failure to make such a finding. Not having done so in my view puts the RPD in a position where it cannot properly assess the issue of state protection in light of the principles noted above. I find that the RPD's resultant finding with respect to a lack of state protection is therefore unjustified, lacking transparency and intelligibility. Determinations regarding state protection are to be assessed on the basis of reasonableness.27 [42] I have also considered whether or not the direction by the Supreme Court of Canada set out in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board)28 might provide a vehicle to repair the above noted deficiencies of the RPD decision so as to, nonetheless, uphold the RPD's ultimate determination. I find that that authority is of no assistance in doing so in this case. As stated recently by Justice Rennie in the Federal Court decision of Pathmanathan:29 [27] The essence of Newfoundland Nurses is that adequacy of reasons is not a stand-alone basis for overturning a decision. Rather, "the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes". Reasonableness, not perfection, is the standard. [28] Newfoundland Nurses does not authorize a court to rewrite the decision which was based on erroneous reasoning. The reviewing court may look to the record in assessing whether a decision is reasonable and a reviewing court may fill in gaps or inferences reasonably arising and supported by the record. Newfoundland Nurses is a case about the standard of review. It is not an invitation to the supervising court to re-cast the reasons given, to change the factual foundation on which it is based, or to speculate as to what the outcome would have been had the decision maker properly assessed the evidence. [43] I have reviewed the Record of the RPD and listened to the CD of that Division's proceedings. In my assessment, given that the problem in this case is a failure to make a critical credibility finding (rather than making an allegedly erroneous finding), the RAD cannot, looking at the Record, make that determination itself. Such credibility matters require a finder of fact to hear direct evidence rather than rely on either a transcript or a CD. [44] Taking all of the above into account, I find the RPD determination to be unreasonable. REMEDY [45] In my assessment, this matter requires a redetermination before the RPD by a differently constituted panel. [46] The Minister sought a hearing before the RAD pursuant to subsection 110(6) of the Act. However, the Minister did not seek to present any new documentary evidence to the RAD under subsection 110(4). Subsection 110(6) provides that the RAD may hold a hearing where there is documentary evidence that, inter alia, raises a serious issue with respect to the credibility of the appellant. There is no such documentary evidence in this case and therefore no RAD hearing may be held. [47] Subsection 111(1)(c) of IRPA provides that the RAD may refer a matter to the RPD for redetermination. Subsection 111(2)(b) provides that the RAD may only make such a referral where it cannot either confirm the RPD determination or substitute a RAD determination for that of the RPD "without hearing evidence that was presented to the Refugee Protection Division". In order for the RAD to make a finding with regard to efforts to seek state protection would clearly require the RAD to hear virtually the same evidence heard by the RPD. [48] For the above-noted reasons, the matter must be referred to the RPD. CONCLUSION [49] Based on all of the foregoing, the RAD sets aside the determination of the RPD and refers the matter of the claim of XXXX XXXX XXXX to the RPD for redetermination by a differently constituted panel. (signed) "Philip MacAulay" Philip MacAulay June 17, 2014 Date 1 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 2 Refugee Appeal Division (RAD) Exhibit 2, Appellant's Record (AR). 3 RAD Exhibit 3, RPD Record (RPDR). 4 RAD Exhibit 2, AR, p. 6. 5 RAD Exhibit 3, RPDR, pp. 3-4. 6 RAD Exhibit 2, AR, pp. 8-9. 7 Dunsmuir v. New Brunswick, 2008 SCC 9. 8 Iyamuremye v. Canada (Minister of Citizenship and Immigration), (2014) FC 494. 9 Dunsmuir v New Brunswick, 2008 SCC 9 at para 47. 10 RAD Exhibit 3, RPDR, p. 3. 11 RAD Exhibit 3, RPDR, p. 4. 12 RAD Exhibit 3, RPDR, p. 4. 13 RAD Exhibit 3, RPDR, p. 4, lines 11-17. 14 RPD Exhibit 2, AR, pp. 8-9. 15 RAD Exhibit 3, RPDR, pp. 60-70. 16 RAD Exhibit 3, RPDR, pp. 17-19. 17 RAD Exhibit 3, RPDR, pp. 23-24. 18 RAD Exhibit 2, AR, p. 8. 19 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724. 20 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, paras. 20, 24, 30. 21 Judge v. Canada (Minister of Citizenship and Immigration) 2004 FC 1089; Martinez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1050. Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 1126 and Camacho v. Canada (Minister of Citizenship and Immigration), 2007 FC 830. 22 Arellano v. Canada (Minister of Citizenship and Immigration), 2006 FC 1265. 23 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724. 24 Camacho v. Canada(Citizenship and Immigration), 2007 FC 830. 25 Salazar v. Canada(Citizenship and Immigration), 2007 FC 793. 26 Marquez Alvarez v. Canada(Citizenship and Immigration), 2010 FC 197; Castaneda v. Canada(Citizenship and Immigration), 2010 FC 393. Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para 38; Orellana Ortega v Canada (Citizenship and Immigration), 2012 FC 611 at para 7 27 Vargas v. Canada (Citizenship and Immigration) 2014 FC 484, at para. 9; Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para 38 and Orellana Ortega v Canada (Citizenship and Immigration), 2012 FC 611, at para 7. 28 Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62. 29 Pathmanathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 353. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-00750