TB4-06658

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 : TB4-06658 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ron Shacter Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Jamaica, is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted any new evidence in support of her appeal, nor is she requesting an oral hearing. She is, however, requesting that she be found to be a Convention refugee or, in the alternative, that the matter be referred back to a newly-constituted panel of the RPD. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. Background [3] On XXXX XXXX XXXX 2013 the Appellant was the victim of a random attack in which she was taken to a remote area in the bushes, along with the driver of the car, and raped by three individuals. She was also hit on the face with a gun and she was beaten repeatedly. She was tied up, however managed to free herself. She and the driver went to the police, where they pulled off the wires that were on the driver's hand and pulled the strings from the Appellant. The Appellant was taken to the hospital by a female police officer from the "Rape Unit." She was examined; they drew blood and sent it to the laboratory for testing. The Appellant was told to return to the police station the following morning to retrieve her belongings from the crime scene, and the police took pictures of the area. [4] On XXXX XXXX, 2013, the Appellant saw a private doctor. She returned to the Rape Unit in XXXX and spent the day providing a full report. Approximately two months later, the Appellant began to receive threatening phone calls. She believed these calls were connected to her attack as the individuals had her identification card (SIM) and family information. The Appellant called the police officer assigned to the case. The calls continued on a daily basis for three months and the Appellant repeatedly reported the calls to the police, but nothing happened. In XXXX 2013, the Appellant decided to come to Canada. [5] The Appellant obtained a visitor's visa due to her full-time employment and an invitation letter from her mother's friend. She did not make a refugee claim upon arrival, as she wanted to see if things calmed down. However, according to the Appellant's mother, the calls have continued on her cell phone. ROLE OF THE RAD [6] A recent Federal Court decision in Huruglica1 has provided the RAD with guidance in relation to the appropriate role of the RAD with respect to the decisions of a first level administrative tribunal by a specialized tribunal, such as the RAD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It 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. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.2 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."3 COUNSEL'S SUBMISSIONS [7] Did the RPD err in its analysis and findings relating to state protection? PRELIMINARY MATTERS [8] In reviewing the audio recording and the record, the RAD concurs that the RPD considered the social, cultural contexts in which the Appellant found herself in, along with the issues, in accordance with the Gender Guidelines. Credibility [9] The RPD accepted that the Appellant had been raped. However, it did not accept her testimony surrounding the issue of state protection. Testimony Regarding Police Chase of the Perpetrators [10] The RPD found that the omission in the Appellant's Basis of Claim (BOC) of the fact that the police chased the assailants, shot at them, and were able to recuperate the car and the Appellant's Blackberry, was significant. It took into consideration the very detailed narrative provided by the Appellant. Counsel Submits that the Recovery of the Vehicle is Irrelevant [11] The RAD finds that the omission by the Appellant is significant as it goes to the efforts made by the police and therefore, the issue of state protection. It is not only the recovery of the vehicle, but rather the chase and shootings by the police that demonstrates the actions of the police. Appellant's Stepfather's Position as a Police Officer [12] The RPD found that the Appellant knowingly omitted the fact that her stepfather was a police officer. This lead to a finding by the RPD that this minimized the role of the police and further demonstrated that state protection would not be available to her in Jamaica. [13] The Appellant submits that the omission surrounding her stepfather's position as a police officer is irrelevant and does not demonstrate an embellishment in terms of state protection. She further argues that there was no evidence that her stepfather could have done anything to influence the investigation of the incident. [14] The RAD finds that the audio recording reveals that the Appellant's stepfather worked in a different jurisdiction. Moreover, the Appellant, in her testimony, explained that she was close to her mother, and she alternated between her mother and father's residence following the incident. Accordingly, the RAD finds that the RPD erred in its finding of embellishment in this regard. Threatening Calls Following the Rape [15] The RPD found that information with respect to the phone calls was omitted from the Appellant's BOC, namely that the Appellant was supposed to meet with the caller, however he did not call her back to confirm. He had called two days later and told her he had to go to work. Given the detail provided in the BOC, the RPD found that this was an attempt on the part of the Appellant to embellish her story with respect to state protection. [16] The Appellant submits that the omission of the attempt to meet the assailant is irrelevant in terms of state protection. The Appellant further submits that what is relevant is the fact that the police refused to look for the perpetrator through her telephone records. [17] The RAD concurs that this portion of the claim is irrelevant as the meeting never took place and, therefore, it is of little significance in terms of state protection. However, the RAD finds that the audio recording reveals that contact had been made with the police with respect to the "in person" meeting. State Protection [18] When asked if the police could protect her, the Appellant responded with a general statement that the police do nothing and "they do stuff if you are paying them illegally to do so." [19] The RPD found that the foregoing statement was at odds with the Appellant's testimony that the police had shot at the assailants and recovered the car along with the Appellant's Blackberry. Moreover, the police from the Rape Unit had accompanied the Appellant to the hospital. Furthermore, the following day the police took the Appellant to the crime scene, took pictures and found the Appellant's belongings. Two days later, she spent a day at the Rape Unit, providing them with a detailed report. Finally, the RPD found that there was no evidence that the police had, in fact, been paid a bribe to investigate, yet the police reports an ongoing investigation. [20] The Appellant provided a police report, which indicates that she was taken to a hospital by the police and items of her clothing were taken for forensic analysis. The motor car was recovered, processed and photographed by Detective Corporal XXXX XXXX XXXX and Detective Constable XXXX XXXX XXXX of the St. Catherine Scene of Crime Unit. The foregoing report indicates that the investigation is ongoing and is signed by the Superintendent of Police. [21] Given the foregoing, the RPD found that the police had taken reasonable steps to protect the Appellant and that the investigation is ongoing and the police were cooperating with the Appellant to find the perpetrators. Accordingly, the RPD concluded that adequate state protection had been provided and would likely be afforded if she returned to Jamaica. It made this finding in conjunction with the objective documentary evidence before it. [22] The Appellant submits that the RPD misstated and misapplied the proper test for assessing the availability of state protection by focusing entirely on the efforts made by the state and not operational adequacy or actual protection.4 [23] The Appellant further argues that the RPD erred in its assessment of the police response to the Appellant's complaint. It found that the police were co-operating with her in attempting to find the assailant, however the evidence indicates that the police refused to intervene when she asked them to track the assailant through her telephone record.5 [24] The Appellant also submits that the RPD's reference to the difficulty in investigating cases where the identity of the assailants is unknown and in the absence of an independent witness is perverse, given that the Appellant had showed that she could identify the perpetrators and that there was a witness, the driver. [25] In totality, the Appellant argues that the receipt of a police report does not establish adequate police protection, if no other steps are taken to investigate the complaint.6 [26] The RAD finds that, while the Appellant may be able to recognize the faces of the perpetrators, she does not know their personal identities to provide to the police and the audio recording does not reveal that the driver of the car knew anything more. Moreover, the RAD finds that the audio recording reveals that although the "caller" provided a false name, when he invited her to peruse his Facebook, she did not recognize the face of the "caller." The RAD further finds that the police report provided to the RPD indicates that the investigation is ongoing. In light of the foregoing, the RAD concludes the police did not have the benefit of the identity of the perpetrators and this would undoubtedly slow down the investigation, which was indicated on the report as being ongoing. Ignoring Evidence [27] The Appellant submits that the RPD ignored its own evidence with respect to state protection,7 in which it indicates that "violence against women including spousal abuse is perpetuated by social and cultural norms. Freedom House states that "legal protections for women are poorly enforced. [28] The RAD concurs that there is evidence of violence against women in Jamaica. However, the RAD also finds that this was a random incident of violence, in which the Appellant indicated in the audio recording (three times) that the perpetrators wanted the car. The RAD concurs with the RPD that the Appellant was raped. However, there was insufficient evidence to persuade the RAD that police were not co-operating with the Appellant. First, the police report indicates "ongoing" investigation. Second, the shooting incident by the police demonstrates that the police were attempting to arrest the assailants. Third, the Rape Unit assisted the Appellant. The RAD concurs with the RPD that, although the documentary evidence is mixed, and state protection is not perfect, there was insufficient evidence to persuade either the RPD or the RAD that state protection would not be reasonably forthcoming. CONCLUSION AND DETERMINATION [29] The RAD finds that after conducting an independent assessment of the entire record, the evidence, and the RPD reasons; it concurs with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [30] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara October 28, 2014 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Ibid., para 54. 3 Ibid., para 55. 4 Appellant's Record, p.122-125. 5 Appellant's Record, p. 7 and p. 10; RPD's Record, p. 19, Basis of Claim Form Narrative, pp. 27-28. 6 Appellant's Record, p.126 7 RPD's Record, National Documentation Package for Jamaica (14 March 2014), items 2.1 and 2.3, p. 71. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06658