TC0-07322

RAD File / Dossier de la SAR : TC0-07322 TC0-07323 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 23, 2021 Date de la décision Panel Cheryl Braden Tribunal Counsel for the persons who are the subject of the appeal Robin Edoh Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. [2] Taneshelle XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (the Appellants) are citizens of Jamaica. They are both minors. They allege a fear of persecution and harm in Jamaica as a result of their family relationship with their adult half-brother, who is gay, and their mother, who has supported their half-brother despite his sexual orientation. [3] The Appellants' half-brother and mother came to Canada from Jamaica in XXXX 2018 and XXXX 2019, respectively. The Appellants initially remained in Jamaica until their mother arranged for them to travel to Canada on XXXX XXXX XXXX 2019. All four family members made refugee claims in Canada, which were heard before the Refugee Protection Division (RPD) on January 28, 2020. On March 2, 2020, the RPD allowed the claims of the Appellants' half-brother and mother, finding that they had each established a serious possibility of persecution in Jamaica, him on the grounds of his sexual orientation and her on the basis of the domestic violence that she had suffered as a result of her support for her son. However, the panel rejected the Appellants' claims on the basis that they did not establish that they would face a risk of harm that amounts to persecution if they returned to Jamaica. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. NEW EVIDENCE The Appellants' affidavit is rejected as new evidence [5] The Appellants have indicated in their record that they are not seeking to rely on any new evidence; however, they have submitted a joint affidavit in which they provide a summary of their claims. Insofar as it reiterates the information already before the RPD and provides copies of portions of the RPD record as exhibits, the affidavit is not new evidence. I note however that the affidavit also makes numerous references to threats of serious harm or death from students at their school in Jamaica that are not contained in the RPD record, and were not part of their testimony before the RPD, contrary to the assertions in the affidavit.1 [6] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.3 [8] The threats described in the affidavit were said to have occurred prior to the RPD hearing, and there are no submissions to explain why evidence about these threats could not have been provided to the RPD before it rendered its decision. I find that the Appellants are attempting to supplement the record and provide additional information in order to refute the findings of the RPD. It is established in jurisprudence that the purpose of new evidence at the Refugee Appeal Division (RAD) is not to provide an opportunity for claimants to supplement a deficient record before the RPD. As stated by the Federal Court: ...the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning [of] deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD."4 [9] While the Appellants are minors, they were represented by a designated representative and by counsel before the RPD, and I find that they had a full opportunity to present their evidence to the RPD. [10] For those reasons, the affidavit of the Appellants is rejected as new evidence. No Oral Hearing [11] The Appellants have requested an oral hearing. Subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) provides that the RAD may hold an oral hearing if new evidence is accepted that raises a serious credibility issue with respect to the Appellant, is central to the decision with respect to the refugee claim, and if accepted, would justify allowing or rejecting the claim. In this case, no new evidence has been accepted, thus the RAD will proceed without an oral hearing. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.5 [13] The Appellants relied on their mother's narrative before the RPD, which indicated that they left Jamaica to join their mother in Canada as they were "experiencing hatred and name calling in the community and schools".6 At the hearing, they were questioned about their allegations and testified that they were afraid to stay in Jamaica because people in school and in the community were saying bad things about their mother, calling them names, laughing at them, and talking about them behind their backs. [14] The RPD found that while the Appellants were credible about their fears, the harm that they fear does not amount to persecution. The panel acknowledged that bullying and verbal harassment are damaging to children but found that they do not amount to persecution. The panel further found no evidence that the Appellants were abused by their father or his family, as their mother had been, or that they would be at risk of such harm. [15] The Appellants argue broadly on appeal that the RPD's decision is "replete with errors of law and fact", however they do not specify the nature or location of these errors. I find that the Appellants have failed to comply with RAD Rules 3(3)(g)(i) and (ii), which requires that they provide a memorandum that includes full and detailed submissions regarding the errors that are the grounds of the appeal and the location of such errors in the decision or hearing recording. The Federal Court has confirmed that the onus is on a refugee claimant to prove his or her claim and to establish that the RPD erred in a way that justifies the intervention of the RAD, and that it is not the role of the RAD to engage in a search for errors in the RPD's decision in the absence of guidance from the Appellants.7 [16] The Appellants have provided two arguments that are somewhat more specific. First, they argue that the RPD erred by "failing to take into consideration reasonable explanations offered by the claimants in describing their ordeals and encounters with co-students and the community that led to their escape from Jamaica". I do not find the meaning of this argument to be clear. I note that the RPD did accept that the Appellants' allegations of harassment and bullying were credible, however it found that they did not amount to persecution as defined in refugee law. [17] Second, the Appellants argue that the RPD erred "when it failed to place weight and trust on the documentary evidence before it".8 I do not find any indication that the panel failed to accept the documentary evidence before it. I have reviewed both the objective evidence in the National Documentation Package for Jamaica, as well as that which was provided by the Appellants. The evidence outlines risks to persons of diverse sexual orientations, which the panel accepted, however it does not establish that family members of such individuals face a serious possibility of persecution by virtue of their family association. [18] Having conducted my own independent analysis of the Appellants' claims along with the evidence in the record and the arguments made by the Appellants on appeal, I find that the RPD correctly concluded that the Appellants have not established that they face a serious possibility of persecution, or a section 97 risk on a balance of probabilities, if they return to Jamaica. [19] The Federal Court has established that harassment or mistreatment must result in serious harm in order to be considered tantamount to persecution. The distinction between harassment and persecution is based on the persistence and seriousness of the harm inflicted, seriousness being equated to the key denial of a core human right.9 [20] At the hearing, the Appellants described that they faced verbal harassment and bullying at school. The Appellants and their mother all testified that the Appellants' fears were based on name calling and gossip at school and in public.10 The Appellant XXXX also testified that: I was scared to stay in Jamaica because they were talking bad things about my mom and they, like, they were sending threats and everything.11 The nature of these threats was not specified, and I do not find that it is clear from XXXX testimony whether the threats were directed to the Appellants themselves, or to their mother. I note however that the Appellants did not mention any threats in their narrative, while it does describe that their mother faced threats as the mother of a gay child, and that no submissions were made before the RPD that the Appellants had a fear of serious harm relating to threats made to them personally. [21] The onus is on the Appellants to establish their claims. I do not find that they have met their burden to establish that the harassment that they face in Jamaica is tantamount to persecution. While it is true that the cumulative effects of harassment may reach the threshold of persecution even in cases where the individual instances of harassment do not, I do not find that the Appellants have established that they face serious harm that can be equated to the denial of a core human right. While they were uncomfortable at school and in public due to gossip and name calling, they do not allege that they were denied the right to go to school, or that they would otherwise face serious harm as a result of the harassment that they experienced. [22] For those reasons, I find that the Appellants have failed to establish that they would face a serious possibility of persecution, or section 97 harm on a balance of probabilities, should they return to Jamaica. CONCLUSION [23] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Cheryl Braden Cheryl Braden February 23, 2021 Date 1 Exhibit P-2, Appellants' Record, p. 17-19. 2 Subsection 110(4), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 Abdullahi v. Canada (Citizenship and Immigration), 2016 FC 260 (CanLII), at para. 14. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Exhibit RPD-1, RPD Record, Exhibit 2.1, pp. 18 and 24- 25. 7 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321 (CanLII). 8 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 121, at para. 4. 9 Sefa v. Canada (Citizenship and Immigration), 2010 FC 1190 (CanLII). 10 Transcript of January 28, 2020 RPD Hearing, pp. 56 -58 and 63-64. 11 Ibid., p. 60, line 40- 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-07322 TC0-07323 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