TB7-14959

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 : TB7-14959 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 March 26, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dov Maierovitz 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 XXXX (the "Appellant"), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant alleges a fear of her former husband who was abusive to her during their relationship, which ended in 2015 by divorce. Greater details may be found in the Basis of Claim (BOC) form.1 RPD's Reasons [3] In its reasons, the RPD found that there was insufficient credible and trustworthy evidence available to convince the panel that the former husband had motivation enough to kill the Appellant or otherwise harm her. The panel also looked at "compelling reasons" on behalf of the Appellant only to find that compelling reasons did not apply in this case. [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Appellant's Issues [5] The Appellant raises six issues at the RAD: a. Did the RPD err by ignoring, misapprehending or misconstruing evidence? b. Did the RPD err when it misconstrued the alleged delay in claiming? c. Did the RPD err by failing to consider certain evidence and thereby finding a lack of an objective basis for the Appellant's fear? d. Did the RPD err by rejecting certain documents, as evidence, based on those documents not being sworn? e. Did the RPD err in its assessment of the re-availment by the Appellant? f. Did the RPD err in its assessment of the "compelling reasons"? ANALYSIS Standard of Review [6] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Arguments - On-going Threats [7] Counsel argues that the panel erred in its assessments of possible on-going threats to the Appellant from her former husband. The panel made a negative credibility finding on this issue because the Appellant testified to the on-going threats but failed to mention this important information, in her BOC. However, as counsel points out, the panel erred in this finding because the Appellant did, in fact, mention this issue in her BOC.3 [8] The Appellant wrote "In 2015, I applied for a divorce from XXXX and the divorce was granted. I would have done it earlier but I never had enough money. After XXXX got the divorce papers, he called me frequently to say that he would kill me if he ever saw me again. XXXX told me that XXXX would tell him that he would kill me as well."4 [9] In my opinion, the above clearly says that the Appellant was facing on-going threats since 2015. [10] I find that the RPD did err in this first issue of credibility. [11] Counsel argues that this error is so egregious that alone, it should be sufficient to allow the appeal because this error tainted all the subsequent credibility findings. [12] I cannot concur with counsel on this issue. I will look at each of the findings, independently, and come to my own conclusion accordingly. Appellant's Status in Canada [13] Counsel argues that the panel misconstrued the status and therefore the length of delay in claiming, of the Appellant, in Canada. The panel wrote that the Appellant no longer had status in Canada as of July 17, 2016 and failed to claim until April 2017.5 Counsel is correct. On page 138 of the RPD Record, I find a visitor's visa issued on XXXX XXXX, 2016 with an expiry date of XXXX XXXX XXXX 2017, giving the Appellant legal rights to be in Canada until that date. As she applied for refugee protection in April 2017, she still had legal status in Canada when she applied. The courts have spoken on this issue in as much that having a valid status in Canada is a reasonable excuse for not claiming protection while that status is valid.6 Therefore, there was no "delay" in claiming and no negative inference should have been made by the panel. This was an error. Objective Fear & Gender Guidelines [14] Counsel argues that the RPD erred in its assessment of the objectivity of the Appellant's claim by ignoring evidence of ongoing threats to the Appellant by her former husband. Further, the panel erred when it rejected the Appellant's explanation in regards to the motivation for the threats, the panel arguing that the passage of time should have assuaged the motivation. [15] Counsel argues that the panel had no reasonable basis on which to reject the Appellant's explanation. The Appellant explained that she believed her former husband was motivated by his heightened anger over the divorce and his desire to maintain control over the Appellant, whom he had controlled since the Appellant was 16 years old. The panel determined that there was no objective basis for the Appellant's fear because the former husband would no longer have any motivation to harass her. Counsel argues that this determination indicates a lack of consideration of the Chairperson's Guideline on gender related claims. [16] I have studied the Chairperson's Guidelines and in this particular case, Guideline 4 which deals specifically with gender in relation to refugee claims. The Guideline shows: I. General Proposition Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender-related persecution by reason of any one, or a combination of, the enumerated grounds. [17] The enumerated ground in this particular case is membership in a particular social group. The Guidelines go on to advise the panels that the panels should consider evidence indicating a failure of state protection, whether the Appellant had or had not sought such protection. Documentary Evidence [18] In this particular case, the Appellant has presented evidence by way of a letter from a Justice of the Peace,7 a letter from a police constable of the Appellant's district,8 along with letters from family and friends. [19] The panel rejected these documents based on the fact that the letters were not sworn documents and were not accompanied by identification, thereby making it difficult to verify the veracity of the documents. [20] The Federal Court9 has made it clear that the panel errs when it rejects evidence based on considerations that are not imposed by law. The Court found that the RPD is not bound by legal or technical views of evidence. In this particular case, the panel is imposing rules of evidence which do not apply when the panel dismisses the letters because they were not sworn nor were they accompanied by identification. Further. The panel had before it a letter from a Justice of the Peace, with full name and contact information, on official letterhead. The same applies to the letter from the police constable. There is no reasonable explanation given by the panel for rejecting these letters, and this is an error. [21] I find that these two letters, from the Justice of the Peace and the police constable are very probative and very credible documents. The authors are both persons working inside the state protection apparatus and they are both indicating that the Appellant may be killed by her former husband should she return to Jamaica. Re-availment [22] Counsel argues that the panel erred in its assessment of the issue of re-availment. [23] The Appellant has re-availed to Jamaica at least three times. In 2008 and again 2012, the Appellant, after working in the USA for three months each time, returned to Jamaica. When asked by the panel whether the Appellant was fearful at those times, about returning, the Appellant testified that she was, in fact, fearful of her former husband each time but that she had no choice but to return, as her children were in Jamaica. [24] In 2015, the Appellant re-availed once again, this time from Canada. The Appellant explained that her mother was very ill and the Appellant thought that her mother may die, compelling the Appellant to return home. [25] In regards to 2008 and 2012 and the Appellant being compelled to return to Jamaica because of her children, I find this to be a weak reason. Of her five children, three were adults, one was a teenager and the youngest one was about 7 years old in 2008 and 11 years old in 2012. These children are not with her now, in Canada, nor have they been with her for lengthy periods of time over these years while the Appellant was working in the USA and in Canada. I do not find the reason given for those re-availments to be reasonable and the re-availments do undermine the subjective fear at that time. [26] However, the 2015 re-availment appears to be reasonable, given that the Appellant's mother was very ill and was expected possibly to die. [27] When I consider that the former husband appears to have become more aggressive in his harassment of the Appellant after the divorce, which was finalized in April 2015, I am inclined to consider the re-availments of 2008 and 2012 to be of less importance and not a major issue in this case. [28] I find, therefore, that the re-availments were not indicative of a lack of subjective fear. Compelling Reasons [29] IRPA subsection 108(4) deals with compelling reasons in refugee claims. The "compelling reasons" must have arisen out of previous persecution or torture. [30] "Compelling reasons" arise when the Appellant experienced persecution and had a well-founded fear of persecution when he or she left his or her country, and the reasons for the fear have ceased to exist, and there are "compelling reasons" arising out of previous persecution for refusing to avail oneself of the protection of the country. Only then is the Appellant a Convention refugee. [31] In this particular case, in spite of counsel's arguments, according to the sworn testimony of the Appellant, the reasons for her fear have not ceased to exist; rather, her testimony is that the reasons for her fear are ongoing. Therefore, subsection 108(4) of the IRPA does not apply to this case. Summary [32] I have conducted a fulsome and independent analysis of this claim. I have found that the RPD has committed a number of errors around the issue of credibility, mostly due to a misapprehension of evidence. [33] I have found that the Appellant is, on a balance of probabilities, truthful and credible. Further, with documentary evidence from two members of the state protection apparatus admitting to the Board that the Appellant faces possible death should she return to Jamaica, I find that this Appellant is unable to access adequate state protection. [34] I also find that due to the small size of the island of Jamaica, and the lack of adequate state protection in domestic abuse violence, and the lack of shelters on the island (Jamaica has only one women's shelter), there is no viable internal flight alternative for this Appellant, either. [35] I therefore find that this Appellant is a Convention refugee. Disposition [36] The RAD has found that the RPD decision will not stand. CONCLUSION [37] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe March 26, 2018 Date 1 Exhibit RPD-1, RPD's Record, at pp. 12-30. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit RPD-1, RPD's Record, at p. 28, at para. 66. 4 Ibid. 5 Exhibit RPD-1, RPD's Record, at pp. 6-7, paras. 14, 19 and 21. 6 Gyawali v. Canada (MCI), 2003 FC 1122, at paras. 15 and 18. 7 Exhibit RPD-1, RPD's Record, at p. 131. 8 Exhibit RPD-1, RPD's Record, at p. 133. 9 Fajardo v. Canada (M.E.I.), [1993] F.C.J. No. 915, at para. 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-14959