TB9-12156

RAD File / Dossier de la SAR : TB9-12156 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 14, 2020 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Adrienne C Smith 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] XXXX XXXX XXXX (Appellant), a citizen of Jamaica, appeals a decision from the Refugee Protection Division (RPD) dated April 16, 2019, denying his claim for refugee protection. DETERMINATION [2] The appeal is allowed. The Refugee Appeal Division (RAD) sends this matter back to the RPD to be redetermined. BACKGROUND [3] The Appellant alleges that he is being targeted by criminals in Jamaica. The Appellant worked as a XXXX XXXX and alleges that criminals accuse him of being an informant. The Appellant came to Canada on XXXX XXXX XXXX 2016. He made his refugee claim around November 2017. [4] The RPD heard the Appellant's claim on April 5, 2019. The RPD denied the claim on the issue of credibility and delay in claiming on April 16, 2019. The Appellant submits that the RPD made several errors in its decision. The RAD carefully considered the merits of the claim in its decision below. ANALYSIS Role of the RAD [5] According to the Federal Court of Appeal's ruling in Huruglica,1 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. No new evidence and no request for oral hearing [6] The Appellant is not making an application to submit new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), nor is the Appellant requesting an oral hearing pursuant to subsection 110(6) of the IRPA.2 [7] In light of the Covid-19 pandemic, a notice was provided to the Appellant's counsel permitting any additional submissions on the potential impact of the pandemic on the claim. On August 13, 2020, counsel for the Appellant confirmed that they would not be providing any additional submissions or evidence in response to this notice. RPD failed to make a clear finding on nexus and personalized risk [8] The RPD made a finding that the Appellant's allegation that he was being targeted by criminals because of two incidents was based on speculation.3 The RPD further found that the risk faced by the Appellant was one that was generally faced by all XXXX XXXX in Jamaica and globally.4 [9] The Appellant submits that his risk was different than that of the average XXXX XXXX since he was targeted and threatened, as an attempt was made on his life.5 Where an individual shows that they are personally targeted for a particular reason, the risk is no longer generalized.6 The RPD did not question the Appellant's position as a XXXX XXXX, and there was sufficient evidentiary basis to show that he was personally targeted after two separate incidents that occurred in the community.7 Furthermore, the Appellant submits that the RPD did not undertake individualized inquiry about the Appellant's risk in Jamaica which considered facts that pointed to personalized risk.8 [10] The RAD has reviewed the RPD decision and the audio recording, and finds that the RPD's very brief assessment is not entirely clear. The RPD made findings on both personalized and generalized risk, but provided very few details on how it came to its conclusion. Also, the RPD did not provide a clear analysis on nexus, and whether it was basing its analysis on section 96 or 97. [11] In its independent analysis below, the RAD found that there was no nexus to a Convention ground, and that the Appellant's claim should be assessed under section 97. [12] The RAD finds that the RPD erred by basing its part of its analysis on generalized risk. The RAD finds that the Appellant's fear of persecution is not linked to any of the enumerated Convention grounds, and therefore has no nexus to section 96. The Appellant believes he is being targeted in a criminal vendetta by various criminals and citizens in Jamaica because he is accused of being a "snitch". The Appellant alleges that his life is being threatened because of rumours that he assisted in the capture of a wanted man. The RAD finds that the nature of these alleged threats is personalized, and therefore should be assessed under section 97. [13] At the hearing, the RPD posed a number of questions to the Appellant regarding common dangers faced in XXXX work generally.9 Regardless of whether or not XXXX is a dangerous profession normally, the Appellant did not allege that he fears criminals in general simply because he is a XXXX XXXX. This is not the nature of his claim. While the Appellant agreed that XXXX work was dangerous generally, the Appellant also clearly testified that his situation was different from other XXXX XXXX; he was being targeted because of the incident where he was accused of being a snitch.10 It was this incident that led him to make his refugee claim. The RAD finds that the RPD erred by failing to focus on the main purpose of his claim. RPD erred in considering subjective fear in a section 97 analysis [14] The RPD found that the Appellant did not make a refugee claim at the earliest opportunity.11 The Appellant came to Canada on XXXX XXXX XXXX 2016 and made his refugee claim in November 2017. The RPD found that that if the Appellant was truly fearing for his life, he would have sought protection at an earlier point in time.12 [15] The Appellant submits that he extended his visitor record twice and this extension was approved by the Canadian government.13 The Appellant sought advice on refugee protection while seeking out his second visitor visa extension. The Appellant further submits that subjective fear does not need to be established in a section 97 claim.14 Furthermore, the RPD failed to consider that the Appellant had valid status while making his refugee claim.15 [16] The RAD agrees with the Appellant. As indicated above, the RAD finds that this claim should be assessed under section 97. Subjective fear is not an element for consideration under this section. Furthermore, the RPD did not consider that the Appellant still had legal status when he made his claim, given his visitor visa extensions. While no documentation was provided to corroborate these visa extensions, the RPD did not challenge the Appellant's testimony that he had applied for and had been approved for two extensions. Therefore, the RAD finds that the RPD erred in finding that the Appellant lacked subjective fear when assessing a section 97 claim. RAD does not have sufficient evidence to finalize the claim [17] The RAD finds that there is insufficient evidence on record to substitute its own decision. The hearing and the decision were both very brief. Questions from the RPD and counsel only spanned half an hour, and most of it was focused on the issue of generalized risk. The Appellant alleges that there were two incidents in Jamaica that led him to believe that his life was in danger because of rumours that he was a snitch. The RAD does not have the evidence it requires to assess whether the threat to the Appellant's life is credible, and whether there is a forward-looking risk. No details were asked about the wanted person who was arrested after the Appellant was accused of snitching. The RPD indicated that state protection was an issue at the hearing but asked very few questions on this topic. No questions were asked on the available protections to a XXXX XXXX in Jamaica whose life has allegedly been threatened. [18] The RAD cannot finalize this decision without hearing from the Appellant first given the insufficient evidence available on record. The RAD can only decide with the evidence before it. Therefore, the RAD remits this decision back to the RPD for redetermination. CONCLUSION [19] The appeal is allowed. The RAD sends this matter back to the RPD to be redetermined. (signed) M. Lee M. Lee August 14, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 2 Exhibit P-2, Appellant Record, Written Statement. 3 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 6, paragraph 10. 4 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 6, paragraph 9. 5 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 21, paragraph 22. 6 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 22, paragraph 24. 7 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 23, paragraph 26. 8 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 24, paragraph 30. 9 RPD Hearing Recording, April 5, 2019, at 20:09. 10 RPD Hearing Recording, April 5, 2019, at 11:26. 11 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 6-7, paragraph 11. 12 Ibid. 13 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 28, paragraph 44. 14 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 28, paragraph 45. 15 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12156 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