TB5-00621

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 : TB5-00621 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX) (A.K.A. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 7, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dunstan Munro 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 submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to return this matter for redetermination before a different panel member or in the alternative, that the RAD set aside the RPD's decision and substitute it with a different decision. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she has suffered persecution and will continue to so suffer should she return to Jamaica, at the hand of the Jamaica Labour Party (JLP) because of the Appellant's refusal, during an election, to cheat in her position as a "poll clerk." She was also asked by the other political party, the People's National Party (PNP) to cheat on its behalf. Greater details of the events may be found in the Appellant's record and in the RPD's Decision and Reasons. [4] The Appellant's application for refugee protection was heard over a period of sittings. The first scheduled appearance was for September 29, 2014. The Appellant failed to attend and a "show cause" hearing was scheduled for October 6, 2014. The Appellant attended on October 6, 2014 and presented the panel with a doctor's note. After consultation with another RPD Member, the panel ruled that the note (see Appellant's record for copy)1 did not comply with the requirements of the rules and advised the Appellant that the hearing would proceed immediately. The doctor's note was from the Rexdale Doctors Clinic at 1530 Albion Rd., Rexdale, Ontario. It was signed by an unknown person with no name printed above or below the signature. The signature was illegible. The note said simply "Medically unfit to attend hearing on 29th Sept 2014." It gave no reason, no prognosis and offered no insight as to what the issue was, how it prevented her from attending on the 29th September or any future date. The hearing went forward on that date, adjourning after some time to the final hearing date of November 6, 2014 (one month later). [5] The Appellant submits that the RPD violated the "laws of natural justice" when the panel insisted on proceeding when the Appellant was in obvious physical discomfort. The Appellant submits that her medical condition was such as to cause her great pain and "intense hemorrhaging"2 (sic) although neither of these issues was addressed in her doctor's note. The Appellant submits that the panel violated those "laws of natural justice" by insisting on the hearing proceeding. [6] The Appellant submits that the RPD, in its Reasons and Decision, paragraphs 13 to 17 "testifies to the fact that something was wrong with the Appellant."3 The Appellant submits that in spite of being asked numerous times to postpone the hearing to allow the Appellant time to heal, the RPD refused. [7] The Appellant submits that the RPD erred in its credibility assessment as it failed to take into account that the Appellant was suffering great pain during the course of the hearing and had "to leave the hearing room constantly because of heavy hemorrhaging."4 And therefore was unable to fully participate in any hearing. [8] The Appellant submits that the RPD erred when the RPD found that the Appellant had failed to establish that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, the Appellant would be subject to a danger of torture or face a risk to her life or a risk of cruel and unusual treatment or punishment should she return to Jamaica. [9] The Appellant submits that the RPD erred in its assessment of credibility in the following areas: 1) Concern over the Appellant's use of the word "assault," 2) The RPD's concerns over the content of a letter from the Electoral office, 3) The RPD's failure to accept the Appellant's explanation as to why she did not produce a "pivotal piece of evidence," 4) The RPD's adverse inference gleaned from the Appellant's failure to provide any sort of objective corroboration of her approach to police, 5) The adverse inference gleaned from the testimony of the Appellant regarding her attendance at her sister's home to hide.5 [10] The Appellant submits that the Minister's evidence regarding three extremely similar claims, including that of the Appellant caused the RPD to draw an adverse inference. The Appellant argued that these were simply three similarly situated people and should be considered as such. [11] The Appellant submits that the RPD erred when it drew a negative inference regarding the Appellant's failure to elevate her assault charges to a higher authority when the local police failed to help her. [12] The Appellant submits that the RPD erred by making unreasonable statements which are unsupported by evidence.6 [13] The Appellant submits that the RPD incorrectly assessed the Appellant's returns to Jamaica as re-availing herself when she had no choice but to return due to her contractual obligations. ANALYSIS Role of the RAD [14] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,7 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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 [Appellant] 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. [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." [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 RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [16] The Appellant argues that the RPD violated the "laws of natural justice" when the panel insisted on proceeding when the Appellant was in obvious physical discomfort. The Appellant had the opportunity to present a certificate from her doctor which, if properly written, could have supported her claim of illness. That note from her doctor would explain why she missed the first sitting on September 29 but was not a note to say that she was still unfit to attend her October hearing date. Further, if the Appellant was not well at her hearing, the obligation is hers to advise the member that she was unwell and could not proceed. The Appellant argues that the RPD "testified" in its decision, in paragraphs 13 to 17 that "something was wrong with the Appellant."8 However, in reading the RPD's decision and especially those paragraphs mentioned, the RAD can find no reference to any medical issue. In paragraph 13 of the decision,9 the RPD speaks to the contradictory evidence given by the Appellant and writes of the Appellant's response to the panel's question, but makes no mention of any medical issues. In paragraph 14,10 the RPD speaks to inconsistencies between the Appellant's oral testimony and a statement she had made at her eligibility interview11 (Schedule A, Q 9 of the evidence disclosed at the RPD hearing) but still no mention of illness. In paragraph 15 of the decision,12 the RPD writes only about the plausibility of part of the Appellant's story and does not mention any illness. Paragraph 1613 is a quotation of an exchange which occurred in the hearing room (questions and answers) and no discussion of illness. Finally, paragraph 17,14 again is only a quotation of a series of questions and answers. The RAD does not understand where the Appellant is seeing testimony by the RPD in this decision which supports her claim of severe illness at the hearing. The RAD finds that this testimony does not exist. [17] The RPD made concessions for the Appellant to take breaks whenever she required one, which, as the Appellant submits, is part of the reason that the hearing went into overtime with a second sitting on November 6, 2014. The RAD finds that the RPD's failure to grant an adjournment was not a breach of natural justice because the Appellant was not unable to present her case or to know the case she had to meet. [18] The RPD had a number of concerns regarding credibility of the Appellant. Just one of the issues causing concern, but certainly not the main issue was that the Minister intervened in this case because he found substantive evidence of possible collusion amongst the Appellant and two other refugee claimants in advancing their claims for refugee protection The Appellant argues that this is nothing more than a case of "similarly situated people" however; in reviewing the evidence put forth by the Minister, the RAD disagrees with the Appellant. The Minister has disclosed that a) all three claimants (including the Appellant) were employed in the same facility as seasonal workers, b) all three were employed together for at least three work seasons (2011, 2012 and 2013), c) all three declared that their problems stemmed from their involvement with the local elections of 2012 in Jamaica, d) all three were branded informers by either or both of the political parties, e) all three were harassed or threatened by gang members affiliated with one or the other party, f) all three declared membership in the JLP since 2000, g) all three fled Jamaica in April 2012 for Canada, g)all three re-entered Jamaica in January 2013 despite claiming to be in danger, h) all three returned to Canada to the same place of employment in April 2013 until December 2013, i) all three initiated their claims for refugee protection in January of 2014, j) all three are represented by the same counsel and finally, k) the Appellant actually declared the same address as one of the other two claimants. The Minister argued that the similarities between the three claims are more than a mere coincidence and went on to characterize the claims as "disingenuous and fraudulent." When this evidence was put to the Appellant, she responded by denying any knowledge of the other claims, and I quote her "This is news to me this morning; I'm speechless; I don't know anything about that."15 [19] In his submissions, the Appellant's counsel argued that these three cases were simply put, similarly situated claimants. The Appellant argues that the RPD erred by rejecting the argument that these were nothing more than similarly situated claimants. The Appellant argues that the issues she suffered in Jamaica are so prevalent that it is not at all extraordinary to find these other two claimants in a similar situation. The RAD might have agreed with the Appellant if the three claims were not nearly identical in so many ways. The RAD does not believe that these three claimants (including the Appellant) would all end up working together for three successive seasons in the same workplace, end up with two of the three sharing the same address (the Appellant being one of them), all three of them suffering the same fate at the hands of the same people for the same reasons and then all three of them ending up with the same counsel when making their claims. The RAD further does not believe that the Appellant was ignorant of this as she did share an address with one of the other two and worked with them both over a period of three years. There is more than a mere possibility that the three would have eventually spoken to each other during which time their "similar situations" would likely emerge. The RAD finds it simply implausible that these three people, if their stories were true, would not have known of each other's issue. The RAD finds that the RPD did not err in its credibility assessment of the Appellant in this matter. [20] The Appellant argues that the RPD erred in its assessment of credibility in the following areas: 1) concern over the Appellant's use of the word "assault," 2) the RPD's concerns over the content of a letter from the Electoral office, 3) the RPD's failure to accept the Appellant's explanation as to why she did not produce a "pivotal piece of evidence," 4) the RPD's adverse inference gleaned from the Appellant's failure to provide any sort of objective corroboration of her approach to police, 5) the adverse inference gleaned from the testimony of the Appellant regarding her attendance at her sister's home to hide. [21] The RAD notes that there are many minor issues on which the RPD found credibility a problem, all of which the Appellant argues against. Notwithstanding the arguments made on credibility, the RAD finds that state protection is determinative in this appeal and will analyse state protection specifically. [22] The Appellant argues that the RPD erred when it drew a negative inference regarding the Appellant's failure to elevate her assault charges to a higher authority when the local police failed to help her. Presumption of State Protection [23] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown.16 [24] The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available.17 [25] The presumption of state protection applies equally to cases where the state is alleged to be a persecutor.18 Rebutting the presumption [26] To rebut the presumption of state protection, a claimant must provide "clear and convincing" evidence of the state's inability to protect its citizens, (absent an admission by the national's state of its inability to protect that national). 19 [27] A claimant who alleges that the state protection is inadequate must persuade the Board that the evidence establishes that the state protection is inadequate. 20 The evidence that state protection is inadequate must not only be reliable and probative, it must also satisfy the Board, on a balance of probabilities, that the state protection is inadequate. 21 [28] The Appellant went to the local police office to complain after being harassed by some supporters of one of the political parties. According to the Appellant, the police, instead of investigating the complaint, contacted the alleged perpetrators who then called and threatened the Appellant further. The Appellant alleges that the police in Jamaica are "very corrupted" are in the pocket of the Dons and criminal gangs, so why should she have to risk her life to go further seeking ineffective protection of the state? [29] The RAD considers Rio Ramirez in this instance. Doubting the effectiveness of the protection offered by the state when one has not really tested it does not rebut the existence of a presumption of state protection.22 In this case, the Appellant has not really tested it as she chose not to pursue her charge to any of the avenues open to her when the local police failed her. A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.23 As mentioned by the RPD in its decision, there exists a number of government channels open to individuals in Jamaica who feel that they have been wronged by police. The Appellant testified that she did not consider any of the channels open to her because she "thought everything would blow off." The RAD has considered the arguments on state protection proffered in the Memorandum as well. The Appellant cites Kadenko24 as saying that it is a heavy burden to place on a claimant to demonstrate that she has taken all courses of action to obtain protection. In this case, the Appellant did nothing beyond registering her complaint. It would not have been a heavy burden for her to complain to the Police Commissioner of Jamaica or to the Public Complaints authority. The RAD finds that the Appellant failed to try to access the protection available to her in any meaningful way. The Appellant has failed to rebut the existence of state protection. This is a determinative issue and therefore the RAD will not consider the other issues raised in the Memorandum or in the RPD decision. The RAD finds that the Appellant's claim must fail as state protection does exist in Jamaica. Disposition [30] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe May 7, 2015 Date 1 Exhibit P-2, Appellant's Record, p. 28. 2 Exhibit P-2, Appellant's Record, p. 76. 3 Exhibit P-2, Appellant's Record, pp. 5-7. 4 Exhibit P-2, Appellant's Record, p. 76. 5 Exhibit P-2, Appellant's Record, pp. 76-78. 6 Exhibit P-2, Appellant's Record, p. 71. 7 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 8 Exhibit P-2, Appellant's Record, pp. 5-7. 9 Exhibit P-2, Appellant's Record, p. 5. 10 Exhibit P-2, Appellant's Record, p. 6. 11 Exhibit RPD-1, RPD Record, p. 56. 12 Exhibit P-2, Appellant's Record, p. 6. 13 Exhibit P-2, Appellant's Record, pp. 6-7. 14 Exhibit P-2, Appellant's Record, p. 7. 15 Exhibit P-2, Appellant's Record, p. 10, at para. 28. 16 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 17 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 18 Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171, at para. 54. 19 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 20 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at paras. 20, 24. 21 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para. 30. 22 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008; 2008 FC 1214. 23 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089.; Kim, Eun Mee v.M.C.I. (F.C., no. IMM-8191-04), Phelan, August 17, 2005; 2005 FC 1126.; Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 24 Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00621