TB6-13353

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 : TB6-13353 TB6-13354 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 23, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal J. Stephen Schmidt Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause 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 (the "principal Appellant", or "PA") and his spouse XXXX XXXX, citizens of Guyana, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have not submitted new evidence in support of this appeal. The Appellants are not requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The PA alleged before the RPD that he been assaulted and threatened by an organized piracy group and consequently the Appellants fear for their lives. Greater details may be found in the Appellants' Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellants' application for refugee protection was heard on August 15, 2016. A negative decision was rendered in writing on September 9, 2016. The RPD found that the Appellants were unable to rebut the presumption of adequate state protection. [4] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Appellants' Issues [5] The Appellants submit that the RPD erred: a) When the RPD found that Guyana provides adequate state protection to its citizens; and b) When the RPD failed to properly assess the evidence on the record. ANALYSIS The Role of the RAD [6] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [7] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [8] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,6 with no deference accorded to the RPD.7 [9] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [10] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [11] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [12] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [13] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [14] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [15] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Arguments [16] The Appellants argue that the RPD failed to properly assess state protection in Guyana. The Appellants argue that they have a nexus8 to the Convention based upon perceived political opinion. That political opinion would be perceived as such by the pirates and or their families, who have been adversely affected by the Commission on which the PA was a member. [17] This may be true; however, there is insufficient evidence before me to convince me that the pirates or the pirates' families are targeting the PA at all. [18] The PA was robbed at gun point while driving his wife home from the hospital. The robber did mention the PA's first name (XXXX) but according to the PA's testimony, but did not mention pirates, or the Commission on which the PA sat. There is no evidence adduced to convince me that the criminal who robbed the Appellants was anything more than a criminal. No ties between the robber and the pirates have been established other than the speculation of the PA. Therefore, I find that the robber in this incident was simply that, a robber with no ties to any pirate organization. [19] The PA testified to a break-in at his home where gold and jewellery amongst other items, were stolen. Again, there is insufficient evidence to convince me that this break-in was in any way related to piracy or that it was anything more than just one more criminal activity in a country rife with criminality. [20] The PA may truly believe that the crimes perpetrated against him were related to his membership on the Commission; however, that is speculative as there has been insufficient evidence adduced to convince me of that. I see two criminal acts perpetrated against the PA and possibly some harassing telephone calls. [21] Documents9 speak to the widespread crime problem in Guyana. "Serious crimes (murder, armed robbery) are common. The most recent information from the United Nations Office on Drugs and Crime lists Guyana's 2012 homicide rate as 17 per 100,000 people -- the fourth highest murder rate in South America behind Venezuela, Colombia, and Brazil. Guyana's murder rate is almost four times higher than that of the U.S. Armed robberies occur regularly, especially in businesses and shopping districts. Armed robberies of business/patron establishments do occur in Georgetown. Criminals are often organized, travel in groups of two or more, and conduct surveillance on their victims. Periodically, there are reports of robberies/attacks on American citizens and, at times, in areas frequented by expatriates. The local media reported a total of 140 armed robbery incidents in 2015, but it is likely that many incidents go unreported. Criminals regularly use weapons, despite a rigorous licensing requirement for the average person to own firearms. Handguns, knives, machetes, or "cutlasses" tend to be the weapons of choice. Criminals generally will not hesitate to show multiple weapons as an intimidation tactic during a robbery. Criminals may act brazenly, and police officers have been both victims and perpetrators of assaults and shootings, despite a rigorous licensing requirement for the average person to own firearms. Criminals generally will not hesitate to show multiple weapons as an intimidation tactic during a robbery. Criminals may act brazenly, and police officers have been both victims and perpetrators of assaults and shootings." [22] The criminal acts perpetrated against the Appellants do not give the Appellants a nexus to the Convention, as argued by the Appellants. Victims of criminality, corruption or vendettas, generally cannot establish a link between their fear of persecution and one of the five Convention grounds. With insufficient evidence adduced to clearly convince me that the perpetrators are, indeed, pirates or their families who have perceived some political opinion in the PA, I see no nexus herein. [23] With no nexus, I must analyze this state protection issue under section 97 of the IRPA. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in dis- regard of accepted international standards, and iv) the risk is not caused by the inability of that country to provide adequate health or medical care [24] In this particular appeal, the "risk" feared by the Appellants falls under the exception noted in section 97 (1)(a)(ii) in that the risk faced by the Appellants (crime) is faced generally by other (substantial percentage of the population) individuals in Guyana. [25] As these particular Appellants do not have a nexus to the Convention, nor do they have status under section 97 of the IRPA, the issue of the adequacy of state protection becomes a moot point. [26] The IRPA section 97 has conditions which must be met by a claimant/appellant in order for that individual to be considered "a person in need of protection."10 "If the risk faced by a person stems from a general risk in that country, the person is not protected under section 97(1)(b). Protection is limited to those who face a specific risk not faced generally by others in the country. There must be some particularization of the risk to the person claiming protection as opposed to an indiscriminate or random risk face by the claimant and others." [27] After an independent and fulsome analysis of the appeal, I find that the Appellants have failed to convince me that they have a nexus to section 96 of the Act. Further, due to the general nature of the crimes perpetrated against the Appellants, the Appellants are not persons in need of protection in accordance with section 97 of the Act. [28] As these Appellants are not protected persons or Convention refugees, it is unnecessary for me to continue to analyze state protection. Disposition [29] The RAD has found that the RPD decision will stand but for a different reason, that being that they have failed to show nexus to section 96 or that they are persons needing protection in accordance to section 97 of the IRPA. CONCLUSION [30] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe December 23, 2016 Date 1 Exhibit P-2, Appellants' Record at pages 10-33. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14 - 18. 5 Huruglica, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Exhibit P-2, Appellant's Memorandum at para. 18. 9 Exhibit RPD-1, National Documentation Package (NDP) for Guyana, 13 May 2016, item 2.4. 10 Consolidated Grounds in the Immigration and Refugee Protection Act; Persons in Need of Protection - Risk to Life or Risk of Cruel and Unusual Treatment or Punishment - Section 3, item 3.1.7 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-13353 TB6-13354