MB5-00730

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: MB5-00730 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision May 14, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me Dunstan Munro Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] Ms. XXXX XXXX XXXX, who is a 33-year-old citizen of Jamaica, is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant has not requested to present new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] With respect to the RPD's determination on credibility coupled with country conditions applied to the Appellant's allegations, for a number of reasons, the RPD concluded that the Appellant faces less than a serious possibility of being persecuted, if she were to return to Jamaica. By extension, the RPD also concludes that the Appellant does not face a risk as understood in s. 97 of IRPA. I must conclude that the RPD did not effectively evaluate the Appellant's testimony nor did the RPD assess correctly the evidence to reach such a conclusion. I find the decision of the RPD to be wrong on questions of mixed fact and law. I am unable to confirm or set aside the RPD decision without hearing further evidence with respect to the issue of credibility which were presented to the RPD. Pursuant to ss. 111(1)(c) and ss. 111(2) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant alleges that if she returns to Jamaica, she might be killed by her boyfriend, identified as Mr. XXXX XXXX. Specifically, the Appellant alleges that Mr. XXXX "says he will shoot me and if he can't have me, no one will" (Oral hearing at minute 36). [4] The Appellant has an eight-year-old daughter whose father the Appellant identifies as a UK citizen. A key allegation is that Mr. XXXX will not allow the Appellant to speak to the father of her daughter. The Appellant alleges that she began a relationship with Mr. XXXX in early 2012. The Appellant alleges that in the middle of the year, Mr. XXXX began to assault and abuse her. This took the form of beating her in public for "talking back" and arriving at work and requiring the Appellant to leave with him. [5] The Appellant alleges that she was specifically assaulted on at least three occasions and that on one of these occasions Mr. XXXX allegedly threatened the Appellant with a firearm. The Appellant alleges that she approached the police on several occasions but without the police making any effort to record her concerns or follow up by talking to Mr. XXXX. [6] The Appellant applied for a Canadian visitor's visa in XXXX 2012, which was granted the same month. The Appellant arrived in Canada in XXXX 2013, and applied for Canada's protection in November 2013. The RPD heard the claim on October 24, 2014, and denied the claim in an oral decision the same day. This decision was appealed by submitting a Notice of Appeal, which was received by the RAD on December 1, 2014. SUBMISSIONS [7] The Appellant argues that the RPD's analysis includes errors related to its determination related to the RPD's analysis of country conditions, when applied to the Appellant's situation. The Appellant questions the RPD's credibility concerns to argue that these are within the area that might be understood as simply the Appellant responding truthfully to a confused and risk filled situation. [8] The Appellant also argues that the logic of the core analysis of the RPD, that the agent of persecution's profile would lead him to either move on and forget about the Appellant or that, given that he is just a XXXX XXXX XXXX XXXX XXXX XXXX, he is not objectively dangerous, is filled with errors. [9] In terms of an outcome from this appeal, the Appellant seeks to have the RAD overturn the RPD decision and return the file to the RPD for reconsideration by a 'different' panel or set aside the RPD's decision and replace it with a different decision. REQUEST FOR AN ORAL HEARING [10] I note that the Appellant has not provided new evidence but has requested an oral hearing. Given that there is nothing in the IRPA, more particularly in IRPA s. 110(3) and s. 110(6), which provides for a hearing in such an appeal, the Appellant's request for a hearing is denied. ROLE AND FUNCTION OF THE RAD [11] With respect to the role and function of the RAD in reviewing the RPD decision, Justice Phellan in Huruglica1 states that the RAD "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". Justice Phellan also indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [12] In Njeukam,2 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [13] Following Huruglica and Njeukam, I conclude that this appeal, which turns on questions of mixed law and fact, I must provide my own assessment of the evidence and reach my own conclusion. I also conclude that in this appeal, on questions of fact, although I may show a degree of deference to the RPD with respect to its credibility assessment, I must provide my own assessment of the evidence to reach my own conclusion. ANALYSIS Core Issue: Did the RPD take into consideration the specific situation of the Appellant and country conditions in Jamaica in its analysis? [14] The determinative issue identified by the RPD in this case is that the Appellant would face less than a serious possibility of being persecuted, if she were to return to Jamaica. By extension, the RPD also concludes that the Appellant does not face a risk as understood in s. 97 of IRPA. According to the RPD, The finding in this, then, is that after a short-term relationship, which was a boyfriend-girlfriend relationship, it was not a common-law relationship, two years after a short-term relationship is there more than a serious possibility, with no other information in that intervening, two years, that you would be persecuted if you went back to Jamaica. The answer to that is no, it has not been established that there is more than just a mere possibility. There could be a mere possibility that Adrian would seek you out again but it has not risen to more than a mere possibility (RPD Decision, p. 3). [15] In its analysis, the RPD appears to accept (examined below) the allegations as credible then seeks to evaluate the risk of return to Jamaica by reaching a conclusion on the objective risk presented by Mr. XXXX. The RPD notes that Mr. XXXX is not an important individual who did not live with the Appellant. The RPD notes that the relationship did not last long and now that the Appellant has been away from Jamaica, there is a possibility that Mr. XXXX will have moved on to a different girlfriend and/or simply forget about the Appellant (RPD Decision, p. 3). [16] The problem with this analysis is that the RPD errs with respect to its analysis of country conditions and State protection when applied to the specific situation of the Appellant. The Appellant has testified to her risk and notes that Mr. XXXX has placed a gun to her head and stated that he will kill her. [17] I find that given that this allegation is found credible, then the relatively low threshold of a reasonable or a 'serious' possibility is met. I note the documentary evidence is clear that there are limitations to State protection in Jamaica. According to the UK Guidance Note for Jamaica on domestic violence, 3.18.9 Conclusion Domestic violence is widespread in Jamaica. Serious concerns have been raised about the effectiveness of protection available to victims of domestic violence given the inadequate enforcement of legislative provisions and regarding the lack of access to shelter and assistance. 3.18.10 While it may be possible in some cases for a woman to relocate to other parts of Jamaica to escape domestic violence, the personal circumstances of the individual applicant should be taken into account when assessing whether it would be unduly harsh to expect them to do so. In this respect, the discrimination and exclusion faced by women in society in general should be considered. Internal relocation will not be appropriate where a single woman with no male partner or children is likely to be perceived as a lesbian, whether or not that is the case. See SW (Lesbians - HJ and HT applied) in 2.4. 3.18.11 Women applicants who can demonstrate that they have a well-founded fear of persecution as a result of domestic violence and have no recourse to state protection or internal relocation should be granted asylum as a member of a particular social group.3 [18] I would reverse this decision except that there are very clear credibility issues which were not addressed, examined and/or clarified by the RPD. For example, the RPD notes that there is very little detail in the original BOC, but after hearing the explanation of the Appellant, the RPD concludes that "I will not hold that against you in this case" (RPD Decision, p. 2). [19] The RPD notes that the Appellant is completely confused with respect to the timeline of events. In listening to the testimony, especially related to such issues as when the Appellant approached the police and when she attempted to move to a different area of Jamaica (Oral hearing at minute 27-33), I would conclude that there is a marked absence of coherence in the Appellant's testimony. Although the RPD notes that the Appellant's testimony is not "spontaneous", given the Chairperson's Gender Guidelines and the fact that two years have passed since this period, according to the RPD, therefore, "I am not going to be overly critical" (RPD Decision, p. 2). [20] There is also the question of delay in leaving Jamaica and a delay in claiming once the Appellant arrived in Canada. With respect to the delay in leaving Jamaica, this is mentioned in the RPD decision (RPD Decision, p. 3) and there is an implication that it somehow factors into the decision but I see no explicit conclusion on whether this is or is not a credibility issue. With respect to the delay in claiming in Canada, this was addressed in the hearing (Oral hearing at minute 44) but the RPD reaches no conclusion in the decision itself. [21] I note that the RPD's questioning of the Appellant is very short. The hearing lasted less than an hour, which in itself is not a problem provided all of the obvious questions are asked. In this case, I must conclude that they were not. The clearest problem to my mind, setting aside the letter from a friend, is this lack of corroborating evidence. Even the letter from the friend (RPD Record, p. 73), identified as Ms. XXXX XXXX, has problems. Ms. XXXX in this letter states that the abuse "commenced early 2012", whereas the Appellant testifies it was towards the middle of 2012 (Oral hearing at minute 14). Ms. XXXX states that the Appellant made a "hasty decision to leave the island", which is not consistent with the Appellant's applications for visas to the US and Canada in mid-2012 and the delay in leaving Jamaica noted above. [22] I note in addition that there is no corroborative evidence of the existence of Mr. XXXX or of any of the events alleged. To begin with, the Appellant has no record of having approached the police. I recognize the logic of the Appellant that the police gave her nothing and the efforts of the Appellant's family members to secure such evidence, has failed. My concern is that this is a credibility issue that should have been at least noted in the RPD decision. [23] The greater problem is the lack of evidence of the existence of Mr. XXXX and his relationship with the Appellant, which was not examined during the RPD hearing. We now live in an electronic age. The Appellant answers question 2(d) of the BOC concerning why she would be found anywhere in Jamaica by stating "this is the age of social media and he would track me down" (RPD Record, p. 48). The Appellant, who had an email addressXXXX XXXX XXXX XXXX XXXX XXXX, while living in Jamaica (RPD Record, p. 34), clearly has knowledge of information technologies. Regardless, there are no pictures of Mr. XXXX, or emails between them, a Facebook page, Twitter, Snapchat, text messages and so forth. This is not obscure. This is obvious, glaring and at the core of contemporary life. [24] Put simply, I conclude that the RPD erred in that the credibility of this claim has not been properly assessed. I conclude that a new hearing is required to assess the credibility of this claim. CONCLUSION [25] The RPD decision is wrong in law and fact and the RAD is unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD. The RAD, therefore, under paragraph 111(1)(c) and 111(2) of IRPA, refers the matter back to the RPD for a redetermination to a differently constituted RPD panel. [26] Therefore, the appeal is allowed. Stephen J. Gallagher Stephen J. Gallagher May 14, 2015 Date /cl 1 Huruglica v. M.C.I. (2014) FC 799. 2 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. 3 National Documentation Package, Jamaica, 14 March 2014, Tab 1.4: Operational Guidance Note: Jamaica, United Kingdom Home Office, December 2013, paragraphs 3.18.9-3.18.11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (June 23, 2014) Disponible en français RAD File No. / N° de dossier de la SAR: MB5-00730 7 RAD File No. / N° de dossier de la SAR : MB4-02198 2