TB8-30389

RAD File / Dossier de la SAR: TB8-30389 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 23, 2021 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Allison Pyper Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for granting the appeal of XXXX XXXX (the Appellant) and recognizing him as a person in need of protection. [2] The Appellant is a citizen of Jamaica. He alleges a fear of persecution and risk to his life from the Gwalla's Crew gang. In XXXX 2013, he alleges that this gang murdered his cousin. The Appellant alleges that he and his brother spoke out about the murderers and were working with the Jamaican police. In XXXX 2014, he alleges that two members of the gang physically attacked his brother and son. He alleges that both gang members died in a shoot out with police. In XXXX 2014, he left for Canada as a XXXX XXXX XXXX. He alleges that his family have continued to receive threats and that the gang is pursuing him as a police informant. [3] The Refugee Protection Division (RPD) rejected the Appellant's claim, finding him not credible for the following reasons: (1) One of the police letters does not include the Jamaican Constabulary crest and it is not genuine; (2) He alleged in his original Basis of Claim (BOC) that the gang told him they would kill him, while he alleged in testimony that the gang never spoke to him directly; (3) The letter from his son does not mention the XXXX 2014 attack; and (4) He delayed claiming and did not regularise his status despite being at risk of removal. [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD was correct to identify an anomaly on the face of the Appellant's police report. As explained later on in these Reasons, the Refugee Appeal Division (RAD) sought a research report on Jamaican police letters, but no information could be found. I have reviewed the new evidence on appeal from the Appellant's previous lawyer and I find that it is sufficient to resolve the authenticity concerns. I also draw no adverse inference based on the inconsistency with the first BOC. The Appellant is unable to read and this document was prepared without Counsel. I agree with Counsel that the Appellant's son's letter should be assessed for what it does say, rather than for what it does not. The RPD was correct to identify the delay in claiming as a credibility concern, but this is not determinative. Having independently assessed the entire Record, I find that the Appellant has credibly established that he is a police informant, that he personally faces a risk to his life on return to Jamaica, and that he is a person in need of protection. DECISION [5] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. THE RAD'S DISCLOSURE OF A RESPONSE TO INFORMATION REPORT [6] On July 17, 2020, the RAD submitted the following research request to the Immigration and Refugee Board's (IRB) Research Directorate: Documents issued by the Jamaica Constabulary Force, including letters confirming investigations undertaken; appearance of reports and letters and whether reports and letters are written on letterhead, including samples or templates from the Jamaica Constabulary Force, particularly the Morant Bay station; whether the Jamaica Constabulary Force crest is included on all official reports and letters; authority to write letters on letterhead, including whether sergeants have authority to write such letters on official letterhead (2016-October 2020) [7] This request was completed by the IRB's Research Directorate on October 22, 2020. The response is contained in the Response to Information Report (RIR) JAM200308.E, as follows: Information on documents issued by the Jamaica Constabulary Force could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. ... Sources Consulted Oral sources: Jamaica - Jamaica Constabulary Force. Internet sites, including: Amnesty International; ecoi.net; Factiva; The Gleaner; Inter-American Development Bank; INTERPOL; Jamaica - Jamaica Constabulary Force, Jamaican High Commission in Ottawa, Ministry of Justice, Ministry of National Security; Jamaicans for Justice; Jamaica Observer; Organization of American States; UN - Refworld; US - US Embassy in Jamaica, Overseas Security Advisory Council.2 [8] On November 27, 2020, the RAD disclosed this RIR to Counsel, setting the response deadline for December 11, 2020.3 Counsel submitted two extension requests, which the RAD granted. However, no response was received by Counsel. Prior to the signing of these Reasons, the RAD registry contacted Counsel and confirmed that no submissions would be provided. [9] Absent any submissions from Counsel, I find that the Research Directorate's inability to locate any information on documents issued by the Jamaica Constabulary Force does not weigh against or in favour of the credibility of the Appellant's police documents. NEW EVIDENCE IS PARTIALLY ADMITTED BUT NO HEARING IS REQUIRED [10] The Appellant's claim was rejected in reasons delivered by the RPD from the bench on October 16, 2018. On appeal, he has provided the following proposed new evidence: a. An email from his previous Counsel, setting out a conversation he had personally with the Jamaican police force; and b. A police letter accompanied by the Jamaican Constabulary crest and signed by a detective divisional inspector.4 [11] According to subsection 110(4) of the IRPA,5 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. Could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. [12] If the evidence meets one or more of these requirements, I must decide under Singh if it is new, credible, and relevant before I can accept it.6 [13] According to subsection 110(6) of the IRPA,7 I may only hold an oral hearing where the accepted new evidence: i. Raises a serious issue with respect to the Appellant's credibility; and ii. Is central to the decision of the claim; and iii. If accepted, justifies allowing or rejecting the claim. [14] I find that the new evidence is partially admissible but that it does not require a hearing. As I am granting the appeal and the underlying claim, I find that a hearing is not necessary. The evidence is partially admissible but does not require a hearing The evidence is admissible under 110(4) [15] The Appellant's new evidence is in response to the RPD's concerns about the authenticity of a police letter that he summitted into evidence.8 I find that the evidence in Items (a) and (b) was not reasonably available at the time of the RPD decision. During the first hearing in September 2018, the RPD correctly canvassed the problem on the face of the police letter - the missing the Jamaican Constabulary crest.9 At the second hearing on October 16, 2018, the Appellant's previous Counsel explained that the Appellant was unable to obtain further evidence addressing the RPD's concern with this letter because the Police Officer who had written it was on leave.10 On this same date, the claim was denied in a bench decision. In new evidence before the RAD, the Appellant's previous Counsel explains that she spoke with this Police Officer directly by telephone after the denial of the claim, in either late XXXX or early XXXX 2018.11 She states that the police officer advised her that "he was not able to provide his letter on letterhead as he does not have the authority to do so."12 I confirm that the Officer's letter lists his position as 'acting.'13 Having reviewed all the evidence, I accept that Counsel's email and the new police letter were not reasonably available until after the RPD decision. On the date of the decision, the Officer remained on leave and he was not available to assist the Appellant by providing new evidence or speaking with his Counsel. This evidence is admissible under 110(4). The evidence in Item (a) is not credible and it is not admissible [16] Item (a) is a police letter which bears the Jamaican Constabulary crest, and it is signed by a detective divisional inspector.14 The contents are identical to the police letter in evidence before the RPD.15 However, the letter also has the same date as the original letter. This is a serious credibility concern. Once the letter was issued on proper letterhead and signed by an officer with the appropriate level of authority, it should have been given a new date. Backdating the letter significantly undermines its reliability. I have carefully considered the Appellant's explanation for the old date on the letter. In his affidavit, he explains that he requested that the date remain the same because he "did not want to alter the original evidence, including the date that had been entered as part of my record."16 The Appellant is mistaken that having a different date on the new letter would create an inconsistency with the evidence before the RPD. A recent date which reflects when the signature was applied to the letter enhances, rather than undermines, its credibility. I find that Item (a) is not credible with regard to its source and the circumstances under which it came into existence and that it is not admissible on appeal. The evidence in Item (b) is new, relevant, credible, and it is admissible [17] I find that the evidence in Item (b) is new, relevant, and credible. It was not in existence at the time of the RPD decision and is therefore new. It is also relevant to the claim as it assists in establishing the authenticity of the initial police letter in evidence before the RPD. Finally, I find that it is credible, on a balance of probabilities. The email is clearly correspondence between previous Counsel and current Counsel. I am mindful that both parties to this email are licensed barristers and solicitors under the Law Society of Ontario and that they are officers of the court who are bound by a duty of candour before the Board.17 I accept as credible previous Counsel's evidence about her conversation with the Jamaican police force. I admit Item (b) into evidence. ANALYSIS The Appellant is credible, on a balance of probabilities The Appellant's police documents are credible, on a balance of probabilities [18] The Appellant submitted two police letters to the RPD: (1) A XXXX XXXX XXXX 2015 letter on letterhead which bears the Jamaican Constabulary crest; and (2) A XXXX XXXX XXXX 2016 letter on letterhead which does not bear the Jamaican Constabulary crest.18 During the first hearing, the RPD correctly asked the Appellant to explain why the second letter is missing the Jamaican Constabulary crest. He explained that he does not know. The RPD found that the first police letter is genuine, but it rejected the Appellant's explanation for the missing crest on the second letter and found that it is a fraudulent document.19 Counsel argues that the RPD erred by "completely disregarding [this letter] on the basis of a minute, irrelevant detail."20 I disagree. The RPD was correct to identify the missing crest as a concern. This is neither minute nor irrelevant. However, I agree with Counsel that the new evidence on appeal to the RAD sufficiently resolves this authenticity concern. [19] The RPD did not identify any objective evidence in the Record to support its finding that genuine police letters should bear the Jamaican Constabulary crest. Instead, it relied on the discrepancy between the two letters in evidence, finding that their dissimilarity is not reasonable. Counsel argues that the RPD is not entitled to make such a finding without objective evidence to establish the standard appearance of Jamaican police letters. I disagree. In assessing the authenticity of documents, it is open to the RPD to consider various factors, including the appearance of a letterhead.21 However, this is simply one factor among many and the RPD must also consider any other factor that supports a documents authenticity, such as the existence of a signature, contact information, or authenticating stamp. The letter bears each of these features. [20] Having reviewed the entire National Documentation Package (NDP) for Jamaica, I note that there is no information about the standard appearance of police letters.22 For this reason, I requested a RIR from the Research Directorate on the standard appearance of Jamaican police letters. As already explained in these Reasons, no information could be found among the many sources consulted by the Research Directorate. While this does not weigh in favour or against the credibility of the police letters, it does indicate that such information is not readily available. [21] I have reviewed the new evidence on appeal from the Appellant's previous Counsel and I find that it is sufficient to resolve the authenticity concerns. I accept as credible previous Counsel's evidence about her conversation with the Jamaican Police Force Officer.23 As discussed in paragraphs 15 and 17 of these Reasons, this evidence reasonably explains the absence of the crest and corroborates the authenticity of the police letter. I am satisfied, on a balance of probabilities, that the police letter is genuine, on a balance of probabilities. [22] The XXXX 2016 police letter corroborates the Appellant's allegation that he acted as a police informant and received continuing threats from the gang on this basis.24 It also states that the gang is "strongly believed" to be behind the murder of the Appellant's cousin and that no arrests have been made.25 Finally, the letter confirms the continuing threats directed at the Appellant's family members and the risk that he faces if he returns to Jamaica. The BOC inconsistency has been reasonably explained [23] In his initial BOC, completed without Counsel, the Appellant alleged that "they [the gang] told me they would kill me if they get a chance."26 However, he did not allege that the gang spoke to him directly in his amended BOC, completed with Counsel, or in testimony. The RPD drew an adverse inference on this basis. In my view, this inconsistency has been reasonably explained. The Appellant is unable to read and his first BOC was prepared without Counsel.27 I draw no adverse inference on this basis. The son's letter does not support a negative credibility inference [24] The Appellant submitted a signed letter from his son.28 However, this letter does not mention the XXXX 2014 attack. On this basis, the RPD found that the letter is inconsistent with the Appellant's allegations and other documents in evidence about this attack.29 Counsel argues that the son's letter should be assessed for what it does say, rather than for what it does not. I agree. [25] Supporting documents, authored by those other than an Appellant, which are otherwise consistent with an Appellant's allegations, should not be used to draw a negative inference based upon what they do not say.30 As the Federal Court found in Gabila, such an adverse inference is improper because the author "is not before the Board to be cross-examined as to why [t]he[y] did or did not mention that component of the story."31 The Court goes on to hold that an "absence of evidence should not, in a refugee context, automatically be considered as evidence of absence."32 [26] In the present case, the RPD was not reviewing a written statement or BOC authored by the Appellant where essential facts are omitted. This is a letter of support provided by his son. While the letter is silent about the XXXX 2014 attack, this does not mean that the attack did not occur. Moreover, the fact that this letter does not mention this attack is no reason to discount the evidence that it does provide which is consistent with the Appellant's allegations. [27] Having independently assessed this the letter, I have considered it for what it does say. It corroborates the continuing threats from the gang against the Appellant's life. The fact that it does not mention the 2014 attack means that it does not corroborate this specific allegation. It does not mean that the letter lacks credibility or that the 2014 attack is not credible. There is other credible evidence on Record which corroborates the 2014 attack, including a police letter, medical evidence, and a letter from the Appellant's cousin which details his firsthand account.33 Delay in claiming is not determinative [28] The RPD found that the Appellant's delay in claiming in Canada raises doubts about his credibility.34 In my independent assessment, I find that this delay is not determinative. [29] In my view, the RPD was correct to identify concerns with the Appellant's delay in claiming. I agree with the RPD that this delay does nothing to advance his claim. During the last 10 months of this delay, the Appellant was without status and he was at risk of removal to Jamaica. Counsel argues that the Appellant did not know he could make a refugee claim, and this reasonably explains his delay. I disagree. The Appellant did not take any steps to inquire about regularizing his status in order to remain in Canada. He acknowledged in testimony that he knew that he was without status during much of this delay and that he was at risk of removal to Jamaica.35 In the Appellant's circumstances, I am not satisfied that his explanation is reasonable. However, delay is rarely determinative of credibility on its own.36 In my view, this delay does not undermine his otherwise credible allegation that the faces a risk to his life in Jamaica. The Appellant has established his claim against Jamaica [30] Having reviewed the Record, I find that the Appellant personally faces a risk to his life, and that he does not have access to state protection or a viable Internal Flight Alternative (IFA). The Appellant has established a personal forward-facing risk to his life in Jamaica [31] I find that the Appellant faces a personalized risk to his life that is not faced generally by others in Jamaica, pursuant to subsection 97(1) of the IRPA. The analysis of subsection 97(1)(b) claims involves two stages,37 summarized as follows: First Stage: Determine the risk faced by the Claimant or Appellant * Consider whether the ongoing or future risk is personal. * Clearly identify the basis (or initial reason) for the risk. * Clearly identify the nature of the ongoing or future risk. * Clearly identify the degree of the risk (or proximity to the risk). Consider any relevant factor, such as: o The severity and number of incidents; and o Any pattern or link between the incidents; and o Any change over time. * Determine if the ongoing or future risk is a risk to life or risk of cruel and unusual treatment or punishment. Second Stage: Examine whether the risk is faced generally by others * Compare the nature and degree of the risk faced by the Claimant or Appellant with the nature and degree of the risk faced generally by other individuals from that country. Determine whether the Claimant or Appellant personally faces a risk not faced generally by other individuals from that country. [32] First Stage: The Appellant was specifically threatened with death. While this threat was not delivered to him directly, I find that it is personal. The initial basis for the risk - retribution for cooperating with the police - is distinct from the nature of the risk itself - risk to life. There is also a pattern of events over time. The threats progressed to a physical attack on his family. There was a pause in targeting before the Appellant left Jamaica. The absence of harm during this period is relevant, but not dispositive, of the gang's level of interest. The Appellant has presented credible evidence that the threats continued after he arrived in Canada. His family members have received multiple warnings that if he returns, he will be "chopped", and they will all be in danger.38 This demonstrates a continuing interest. The fact that the gang was not successful in harming him before he left Jamaica does not detract from their interest in doing so on a forward-looking basis. I find, on a balance of probabilities, that the Appellant has been personally threatened with death. [33] Second Stage: Criminal targeting is widespread in Jamaica. However, the threat to the Appellant's life is distinguishable in nature and degree from the risk of gang violence faced generally in Jamaica. The question is not whether others could eventually find themselves in the Appellant's position but, rather, whether others generally are in that position now.39 I find, on a balance of probabilities, that the forward-looking risk to the Appellant's life is not faced generally in Jamaica. Neither adequate state protection nor IFA are available to the Appellant [34] I further find that adequate state protection would not be forthcoming for the Appellant in Jamaica. The NDP indicates that the Jamaican police force is "underpaid, [and] poorly trained."40 There have been some efforts to improve protection for victims of gang violence in Jamaica.41 However, I do not find that this results in adequate state protection at the operational level. Where a person who is targeted by a gang is not provided with witness protection, they "will not normally receive effective protection in [their] home area."42 The NDP indicates that Jamaica's witness protection program is "ineffective" and suffers from "a number of problems", including the refusal of eligible witnesses.43 Despite acting as a police informant, the Appellant was never offered or provided with witness protection. In addition, "most civilians fear that at best, the authorities cannot protect them from organized criminal elements, and at worst, are colluding with criminals."44 In Jamaica, "[g]angs are sometimes afforded community tolerance or protection and, in some cases, are supported through police corruption."45 I find, on a balance of probabilities, that the Appellant does not have access to operationally adequate state protection upon return to Jamaica. [35] Although citizens have the right to move freely within the country, Jamaica is a small island, slightly smaller in size than the US state of Connecticut.46 The gang has demonstrated a continuing interest in the Appellant and I find that he faces a personal risk to his life on this basis throughout the country, and that he does not have a viable IFA in Jamaica. CONCLUSION [36] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. (signed) "J. Pollock" J. Pollock March 23, 2021 Date 1 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 2 Exhibit RAD-1, Response to Information Request JAM200308.E. 3 Exhibit RAD-2, RAD disclosure of the Response to Information Request JAM200308.E, November 27, 2020. 4 Exhibit P-2, Appellant's Record, at pp. 9-10, 14, 15. 5 IRPA, at ss. 110(4). 6 Canada (MCI) v. Singh, 2016 FCA 96; Nteta-Tshamala v. Canada (MCI), 2019 FC 1191, at para. 25. 7 IRPA, at ss. 110(6). 8 Exhibit RPD-1, RPD record, Exhibit 6, at p. 90 (duplicate at Exhibit 9, at p. 213). 9 Exhibit RAD-3, RPD hearing transcript, September 11, 2018, at p. 17. 10 Exhibit RAD-4, RPD hearing transcript, October 16, 2018, at p. 7. 11 Exhibit P-2, Appellant's Record, at p. 15. 12 Exhibit P-2, Appellant's Record, at p. 15. 13 Exhibit RPD-1, RPD record, Exhibit 6, at p. 90 (duplicate at Exhibit 9, at p. 213). 14 Exhibit P-2, Appellant's Record, at p. 14. 15 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 90 (duplicate at Exhibit 9, at p. 213). 16 Exhibit P-2, Appellant's Record, Appellant's affidavit, at p. 9, at para. 5. 17 The Law Society of Ontario's Rules of Professional Conduct, at sections 5.1-1, 5.1-2. 18 Exhibit RPD-1, RPD Record, Exhibit 6 at p. 90 (duplicate at Exhibit 9, at p. 213); Exhibit 7, at p. 110. 19 Exhibit RPD-1, RPD Record, RPD Decision, at p. 4, at lines 21-34. 20 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 38. 21 Downer v. Canada (MCI), 2018 FC 45, at paras. 59, 61. 22 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Jamaica (30 April 2018). 23 Exhibit P-2, Appellant's Record, at p. 15. 24 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 90 (duplicate at Exhibit 9, at p. 213). 25 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 90 (duplicate at Exhibit 9, at p. 213). 26 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 27, at question 2(a). 27 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 34. 28 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 113. 29 Exhibit RPD-1, RPD Record, RPD Decision, at p. 4, at lines 40-47. 30 Mahmud v. Canada (MCI), 1999 CanLII 8019 (FC), at para. 11; Sitnikova v. Canada (MCI), 2016 FC 464, at paras. 22-24; Arslan v. Canada (MCI), 2013 FC 252, at para. 88; Magonza v Canada (MCI), 2019 FC 14, at paras. 48-52; Adeleye v. Canada (MCI), 2020 FC 640, at paras. 8-11; Alim v. Canada (MCI), 2021 FC 230, at paras. 12-16. 31 Gabila v. Canada (MCI), 2016 FC 574, at para. 39. 32 Gabila v. Canada (MCI), 2016 FC 574, at para. 39. 33 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 110-112. 34 Exhibit RPD-1, RPD Record, RPD Decision, at p. 3, at lines 29-48. 35 Exhibit RAD-3, RPD hearing transcript, September 11, 2018, at p. 29, at lines 16-19, at p. 30, at lines 6-17. 36 Malaba v. Canada (MCI), 2013 FC 84, at para. 12; Hue v. Canada (MEI), [1988] FCJ No 283 (FCA). 37 Portillo v. Canada (MCI), 2012 FC 678, at paras. 40-41; Guerrero v. Canada (MCI), 2011 FC 1210, at para. 28; Correa v. Canada (MCI), 2014 FC 252, at paras. 73-77, 83-84, 89-90; Prophète v. Canada (MCI), 2009 FCA 31, at para. 7; Herrera Chinchilla v. Canada (MCI), 2014 FC 546, at paras. 28-33. 38 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 13, 15. 39 Correa v. Canada (MCI), 2014 FC 252, at para. 84. 40 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 1.5, at para. 8.7.1. 41 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 1.4, at para. 8.1.7. 42 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 1.4, at para. 8.1.6; Item 1.5, at para. 2.4.1. 43 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 2.1; Item 7.3, at pp. 9-10. 44 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 1.4, at para. 8.1.5. 45 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 7.1, at p. 196. 46 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Jamaica (30 April 2018), Item 1.3; Item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-30389 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