TB7-19983

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 / Dossier de la SAR : TB7-19983 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, ON Appel instruit / entendu à Date of decision September 17, 2018 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are) the subject of the appeal Matthiew S. Malaga Reano Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW OF THE APPEAL [1] XXXX XXXX XXXX ("the Appellant"), a citizen of Jamaica, appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She submits that the RPD erred in its credibility and delay findings, in its assessment of internal flight availability, and by failing to consider relevant evidence. Having carefully reviewed the evidence, I find that, while the RPD erred in one of its credibility findings, it did not err in its other credibility findings, and the one error is not fatal to its determination. I also find that the RPD did not err in its delay in claiming findings, or in its consideration of the evidence. I find that credibility is the determinative issue in the Appellant's claim, and there is no need to address the issue of internal flight alternative. Therefore, I am confirming the decision of the RPD and dismissing the appeal. BACKGROUND [2] The Appellant alleges that members of a gang in Jamaica are intent on harming her because she was associated with the leader of a rival gang. She maintains that a handyman who belonged to a gang, and lived in her home, was shot and killed at her home on May 10, 2013 by members of a rival gang. On June 7, 2013, the Appellant's boyfriend (the brother of a gang leader) was shot and killed in front of her home. The Appellant was told that a gang was out for her because she was associated with the leader of a rival gang, and she should run. The Appellant travelled to Canada on XXXX XXXX XXXX XXXX to stay with her brother. She returned to Jamaica on XXXX XXXX XXXX XXXX XXXX On May 15, 2014, the Appellant's home in Clarendon was shot up. The Appellant then went to stay with her father in Westmoreland. She travelled to Canada on XXXX XXXX XXXX XXXX XXXX On May 29, 2017, the Appellant was arrested during a raid at her residence. She filed a claim for refugee protection approximately one month later. SCOPE OF THE APPEAL [3] As held by the Federal Court of Appeal in Huruglica, the Refugee Appeal Division (RAD) is to review decisions of the RPD on a standard of correctness on questions of fact, law, and mixed fact and law, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract a standard of review of reasonableness.2 Unless otherwise stated, a correctness standard has been applied. ANALYSIS Credibility Identity documents [4] The RPD noted the initial lack of identity documents for the Appellant. It found the Appellant's explanation - that her cousin had seized her passport and had threatened and extorted her - not reasonable because she never reported her cousin's criminal conduct to police. The RPD drew an adverse inference with respect to the Appellant's credibility from her delay and lack of timely disclosure of her identity documents. It did find, however, that the Appellant had established her identity. [5] The Appellant maintains that she was unable to provide her passport on July 20, 2017 when her claim was initially made because it was not available to her. She points out that her Ontario Identification Card was provided with the filing of her claim on July 20, 2017 and, subsequently, on August 16, 2017, she provided the RPD with copies of her passport, birth certificate, and police clearance certificates. She points out that her original passport was provided to the RPD for examination on the date of her hearing. [6] The Appellant submits that she provided a reasonable explanation for the delay in providing her identity documents. She maintains that her cousin, whom she resided with, was withholding her passport and provided it to her only after she paid her what she had demanded. The Appellant submits that the RPD erred by focusing on a peripheral matter - the minor delay in providing identity documents - rather than focusing on the substance of her claim. [7] I agree with the Appellant. The Appellant's delay in submitting her identity documents is a peripheral matter. The RPD was wrong to focus on this issue. However, the error is not fatal to the RPD's determination for the following reasons. Delay in claiming [8] The RPD noted the Appellant's three-year delay in claiming. It found it to be an egregious delay and that it was not reasonably explained. It noted that the Appellant's parents had assisted the Appellant in applying for a visa, and it found that the parents appeared to be competent to make applications and to provide the Appellant with information about regularizing her status and informing her of any other programs that would be available to keep her safe in Canada - without her status lapsing and risking deportation. The RPD noted the Appellant's circumstances in Canada and found it unreasonable and not credible that regularizing her status through the refugee program never came up. It also noted that the Appellant had been in a relationship with a Canadian citizen since at least January 2015 and expected the Appellant to have received help from him. The RPD found it not credible that the Appellant had no fear of being caught by the authorities and deported to Jamaica, or that she was only prompted to apply for refugee protection when she was arrested. It found that her explanation (that she did not think about this fear) establishes that she has no subjective fear of persecution. It drew an adverse inference with respect to the Appellant's credibility from her delay in claiming. [9] The Appellant submits that the RPD's negative credibility finding demonstrates a failure to address her reasonable explanation for the delay. She maintains that she was not knowledgeable and afraid of the prospect of being returned to Jamaica, if she made a claim in Canada. She explained that, while she was aware of some risk in being without status, she was more afraid of returning and facing the possible risk of death in Jamaica. The Appellant argues that her fear of being returned to Jamaica stopped her from pursuing a claim earlier, and it was only once a real threat of removal crystalized that she acted. [10] In my view, the Appellant's argument fails for the following reasons. I note that the Appellant travelled to Canada on XXXX XXXX XXXX XXXX, allegedly fearing for her life; yet, she failed to file a claim for refugee protection upon her arrival or shortly afterwards. The Appellant filed a claim for refugee protection after being in Canada for almost three years, without status for the majority of that time, and only after she was arrested by police. [11] The Appellant maintains that she did not know about refugee protection in Canada during her initial period of living in Canada. I reject this explanation for her delay in claiming. The Appellant is not uneducated. She was in school in Jamaica until the time she last came to Canada. Also, it appears from their letters and assistance that the Appellant's parents are educated. It would be reasonable to expect educated individuals to have research skills. In the Appellant's case, if she feared for her life in Jamaica, it would be reasonable to expect her and her parents to research protection mechanisms available to her in Canada. Her alleged ignorance of the protection mechanisms available to her in Canada after her arrival suggests that she did not conduct research. Her failure to do so, considering her alleged circumstances, undermines her credibility with regard to her subjective fear of returning to Jamaica, her allegations, and her overall credibility. [12] The Appellant's visitor's visa for Canada was temporary in nature. It was issued for six months and set to expire on December 15, 2014.3 The fact that the Appellant's visitor's visa expired exemplifies the temporary nature of it. If the Appellant truly feared returning to Jamaica, as alleged, it would be reasonable to expect her to pursue a permanent type of protection, such as refugee protection, immediately upon her arrival in Canada. At the very least, it would be reasonable to expect her to research her options immediately upon her arrival, given her particular circumstances. The Appellant, however, did neither. [13] The Appellant's explanation that she was afraid of the prospect of being returned to Jamaica if she made a claim in Canada is counterintuitive. If one is afraid of being returned to their home country, it would be reasonable to expect them to take some action to remain in the safe country. The Appellant's contention that she acted once a real threat of removal crystalized is also unreasonable. The threat of removal crystalized when the Appellant ran out of status. [14] Considering the Appellant's circumstances, I find that she had the wherewithal to investigate the possibility of filing a refugee claim in Canada after she arrived in August 2014, before her visitor's visa was set to expire in December 2014. The Appellant maintains that she fled Jamaica because she feared for her life at the hands of gang members. One would expect a refugee claimant, who leaves her home country in fear for her life, to immediately seek protection in the safe country she travels to. It would be reasonable to expect refugee claimants to immediately seek protection in Canada, if they feared returning to their home country. The Appellant, in this case, knew that it was likely she would have to return to Jamaica when her visitor's visa expired, if she did not obtain an extension to her visitor's visa or obtain some other status in Canada; however, she failed to inquire about it or take action to remedy her situation before her visitor's visa expired and in the years she was without status, before she was arrested. It is simply unreasonable that the Appellant remained in Canada for almost three years and did not pursue a refugee claim, in light of her alleged fear of returning to Jamaica. [15] The Federal Court has upheld RPD decisions rejecting claims because of a lack of subjective fear based on a delay in claiming protection in Canada, failing to seek protection in a third country, delay in leaving the country of persecution, or returning to that country.4 In this case, the Appellant's reason for not making a claim for protection immediately upon arriving in Canada in August 2014, or shortly afterwards, is unreasonable, and it further undermines her credibility with regard to her subjective fear of returning to Jamaica, her allegations, and her overall credibility. Re-availment [16] The RPD noted that the Appellant returned to Jamaica after her first visit to Canada in 2013. It noted the Appellant's explanation - she was not fearful to return at the time because she thought everything was fine; she had not been targeted, and she had not been getting along with her brother in Canada and wanted to return to Jamaica for high school. The RPD found the explanation unreasonable considering that the Appellant alleged that she had been a witness to two murders at her home. It drew a negative inference with respect to the Appellant's credibility as a result. [17] The Appellant makes no allegation of error in the RPD's finding with respect to her re-availment to Jamaica in 2013, and I see none. [18] The Appellant's explanation for returning to Jamaica in September 2013 is unreasonable considering her alleged circumstances. I note that the Appellant alleged that two murders had occurred at her house before she came to Canada in August 2013. She also alleged that she had been told that gang members were out for her because she was associated with the leader of a rival gang before she came to Canada in August 2013. I rely on case law5 which indicates that a negative inference may be drawn in instances where a refugee claimant takes sojourns outside of the country of alleged persecution and fails to take advantage of the opportunity to seek asylum elsewhere, and then re-avails him or herself. [19] The Appellant failed to take advantage of the opportunity to seek refugee protection in Canada in 2013. She then re-availed herself to Jamaica after she alleged that gang members had targeted her for harm. In this instance, I draw a negative inference as noted in the case law and find that the Appellant's actions are not consistent with a subjective fear of persecution. I find that her re-availment further undermines her credibility with regard to her subjective fear of returning to Jamaica, her allegations, and her overall credibility. Letters from parents [20] The RPD gave little weight to the letters from the Appellant's parents. It noted that they were not sworn statements, not from an independent third party, and simply reiterated the Appellant's allegations. [21] The Appellant submits that the RPD erred by dismissing evidence simply because it came from her family members, especially when the evidence substantiates and goes to the heart of her claim. She also submits that the RPD erred by focusing its attention on minor inconsistent and peripheral matters such as the swearing of the letters, rather than considering the substance of what the letters state. [22] In my view, the RPD was not wrong to give little weight to the letters from the Appellant's parents. The Appellant's story lacks credibility, and the letters from her parents do not make her story credible. Corroboration does not make an incredible story credible.6 Also, confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence. Highly probative evidence is intrinsically well-presented evidence from independent sources confirming a material fact in the matter.7 The letters from the Appellant's parents are not from independent sources and therefore deserve little weight. Letter from police [23] The RPD gave little weight to a police report. It noted that the report is simply a document typed on a computer with very few security features - only a stamp that is very unclear. It also noted that the report is not contemporaneous with the events in 2013 and 2014 when the murders occurred. It noted that the Appellant lacked credibility, and the police document came from her. The RPD found that the report is not reliable or sufficiently independent to overcome the credibility problems with the Appellant's testimony. [24] The Appellant points out that the letter from SergeantXXXX XXXX XXXX of the Lionel Town Police Force in Clarendon, Jamaica details the nature of the gang violence situation. She submits that the RPD erred by focusing its attention on minor inconsistent and peripheral matters such as the stamp on the letter, rather than considering the substance of what the letter states. [25] In my view, the Appellant's argument is without merit. There are significant irregularities on the face of the letter from Sgt. XXXX XXXX to cast doubt on its authenticity. [26] The letter8 allegedly from Constabulary Station - Lionel Town - Clarendon, Jamaica is without a letterhead. If the letter was from a police station in Jamaica, one would expect to see police letterhead. Further, the stamp next to the signature is illegible, and there is an illegible scribble next to the stamp. I also note that the stamp is not over the signature of the letter writer but below it. The purpose of a stamp on a signature is to prevent forgeries and consequently stamps are usually over signatures not underneath. These irregularities undermine the authenticity of the letter. [27] I note that the language and tone of the letter is not consistent with the language and tone of a document that purports to be a police report. The language is friendly and contains superfluous information one would not expect to see in a police report. For example, the letter states, "XXXX grew up in the district of XXXX XXXX, XXXX XXXX i[n] a small seaside fishing village situated in the Southern section of Clarendon." The letter reads like the Appellant's narrative, not like a police report intended to provide details of crimes and investigations. [28] I note that the letter writer indicates that the police department informed the Appellant that she has to seek and maintain protection because the police department cannot protect her. Also indicated is that the Appellant was advised again to flee to neighbouring communities for her safety because they cannot protect her from the gang and state violence in Jamaica. It is unclear if the letter writer is speaking for himself, all police, the police station, the police department, or the police headquarters in Jamaica. Also, in my view, it is inconceivable that a police officer, whose duty is to serve and protect, would issue a letter indicating that he or the police, in general, are unable to protect citizens, or a particular citizen. There is no indication that this letter was vetted by a senior police official in Jamaica. [29] I also note typographical and grammatical errors in the letter. For example, it is written "...becausewe cannot protect her..." It would be reasonable to expect official documents from police to not contain errors. Police work depends on accuracy. I find that the irregularities noted above further undermine the authenticity of the letter. [30] Where there is sufficient evidence to cast doubt on its authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little (or no) weight, without expert verification or where such verification is inconclusive.9 In this case, the irregularities on the letter purported to be from a police sergeant are sufficient to cast doubt on its authenticity. I find, on a balance of probabilities, that the letter is not authentic. I also find that the Appellant's presentation of the inauthentic letter further undermines her credibility and the credibility of her allegations. Documentary evidence [31] The Appellant submits that the RPD erred by failing to consider the evidence she submitted detailing the prevalence of gang violence in Jamaica, especially in Clarendon where she resides. She points to news articles detailing gang violence in Clarendon and Westmoreland. [32] I note that the RPD acknowledges the evidence regarding gang violence in Jamaica. However, in my view, evidence of gang violence in Jamaica does not establish that the Appellant was personally targeted by gang members in that country. I note no articles regarding the incidents the Appellant describes in her Basis of Claim Form (BoC). Considering the volume of articles regarding gang-related violence in Jamaica submitted by the Appellant, it would be reasonable to expect to see articles regarding the incidents she describes in her BoC. Their absence further undermines the credibility of the alleged incidents. Credibility Summary [33] As a cumulative result of the above-noted anomalies and findings, I find that the Appellant lacks credibility. I do not accept, on a balance of probabilities, that the material events, as described by the Appellant in her BoC and at her hearing with the RPD, occurred as described. [34] Therefore, I find that there is not a serious possibility of persecution should the Appellant return to Jamaica. I therefore conclude that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons - the lack of credibility - I find that the Appellant is not a person in need of protection or at risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [35] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD and dismiss the appeal. (signed) "M. Pettinella" M. Pettinella September 17, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Huruglica, 2016 FCA 93, at paras. 69-74; X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit RPD-1, RPD Record, at p. 189. 4 Rivera, Jesus Vargas v. M.C.I. (F.C., no. IMM-5826-02), Beaudry, November 5, 2003, 2003 FC 1292; Borges, Antonio Luis De Mello v. M.C.I. (F.C., no. IMM-2995-04), von Finckenstein, April 12, 2005, 2005 FC 491; Modernell Gilgorri, Ruben Dario v. M.C.I. (F.C., no. IMM-5423-05), Shore, May 4, 2006, 2006 FC 559; Colorado Torres, Edison v. M.C.I. (F.C., no. IMM-7630-05), Harrington, July 27, 2006, 2006 FC 927; Rodriguez Mejia, Dario Edgardo v. M.C.I. (F.C., no. IMM-396-06), Mactavish, September 13, 2006, 2006 FC 1087; Sainnéus, Elange Bully v. M.C.I. (F.C., no. IMM-3777-06), Martineau, March 5, 2007, 2007 FC 249. 5 Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau (dissenting), Desjardins, Létourneau, May 13, 1993. 6 Gomez, Hector Cisneros v. M.C.I. (F.C., no. IMM-5741-04), Harrington, June 16, 2005, 2005 FC 859. 7 El Bouni, Haidar v. M.C.I. (F.C., no. IMM-7627-14), Annis, June 2, 2015, 2015 FC 700. 8 Exhibit RPD-1, RPD Record, at pp. 322-323. 9 Mohanarajan, Sriahilandtharanathan v. M.C.I. (F.C.T.D., no. IMM-5482-99), Simpson, November 6, 2000; Aboubacar, Habib Rashad v. M.C.I. (F.C.T.D., no. IMM-5925-00), Dawson, February 13, 2002, 2002 FCT 162. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19983 12 RAD.25.02 (August 08, 2018) Disponible en français