TB8-32722

RAD File / Dossier de la SAR: TB8-32722 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 10, 2020 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Krishanthan Cathiresan 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] These are my reasons for allowing the appeal of XXXX XXXX XXXX (the Appellant) and sending his claim back to the Refugee Protection Division (RPD) to be redetermined. [2] The Appellant is a citizen of Jamaica. He alleges that members of the Stone Crusher Gang believe that he is a police informant. He alleges that he worked as a XXXX XXXX in Jamaica. In XXXX 2016, he alleges four XXXX demanded to see his XXXX and warned him that they are aware of who he is and where he lives before leaving his XXXX. He alleges that these XXXX belong to the Stone Crusher Gang and that two of them were later killed by police and a third was arrested. He alleges that "word quickly spread among the gang and the public that I was the person who ratted on them" and that he is now at risk.1 He alleges that gang members are now searching for him in Jamaica. He entered Canada as a XXXX XXXX XXXX in XXXX 2016 and claimed refugee protection in XXXX 2018. [3] The RPD hearing lasted a total of twenty-six minutes.2 The RPD denied the Appellant's claim, finding him lacking in credibility based on his delay in claiming and failure to provide corroborative evidence. The RPD also found that the Appellant faces a generalized risk upon return to Jamaica. The Appellant argues that each of the RPD's findings are in error. He has provided a new letter on appeal, which I have not admitted. [4] My role is to look at all the evidence and decide if the RPD made the correct decision.3 Having independently assessed all the evidence, including the RPD hearing audio-recording, I find that the RPD erred. However, insufficient questions were asked to allow me to substitute my own determination. As such, I am returning the matter to the RPD to be redetermined. DECISION [5] The appeal is allowed. I send this matter back to the RPD to be redetermined. THE NEW EVIDENCE IS INADMISSIBLE UNDER SUBSECTION 110(4) [6] The Appellant's claim was rejected on November 19, 2018. On appeal, he provides a letter from the XXXX XXXX XXXX XXXX, dated XXXX XXXX XXXX 2018.4 [7] According to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA),5 I can only accept evidence that: i. Arose after the RPD decision; or ii. Was not reasonably available at the time of the decision; or iii. Could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.6 [9] The letter from the XXXX XXXX XXXX XXXX provides detail about the Appellant's good character and corroborates his four years of involvement in the XXXX XXXX. However, it has no probative value with respect to his allegations of gang targeting or risk of harm. [10] The XXXX letter is dated XXXX XXXX XXXX 2018, before the claim was rejected. Counsel argues that the letter should be admitted into evidence because it only arrived in Canada after the rejection of the claim. I am not persuaded by Counsel's argument. During the RPD hearing, the Appellant testified that he only requested this letter one week before the hearing.7 This despite the fact that Claimants before the RPD are expected to provide their documents to the Division no later than ten days before their hearing.8 [11] In my view, the Appellant's lack of effort to request this document in a timely manner weighs against its admission on appeal. The Appellant has not established that this letter was not reasonably available or could not have reasonably been expected before the RPD decision. The late arrival of the letter is a result of his late request. Claimants must put their best foot forward before the RPD and the Refugee Appeal Division's (RAD's) new evidence provisions are not the Appellant's opportunity to complete a deficient RPD Record.9 [12] The evidence is inadmissible under 110(4). However, the Appellant may submit this letter to the RPD in the redetermination of his claim, in accordance with the RPD Rules. ANALYSIS The RPD erred in its assessment of credibility The Appellant's delay in claiming has been reasonably explained [13] The RPD found that the Appellant's temporary status expired in XXXX 2018, two months before he initiated his inland claim for refugee protection. The Appellant explained that he did not initiate his claim earlier as he did not know how. The RPD rejected this explanation on the basis that he had extensive experience with visa applications.10 The RPD drew a negative credibility inference based on this two-month delay. Counsel argues that this is an error. I agree. [14] The Appellant explained during the RPD hearing that his visa applications were completed with the assistance of the Jamaican government, given that he was applying under the XXXX XXXX XXXX XXXX.11 The RPD does not address this explanation. Given that the Appellant was assisted in his prior applications, I do not find that his immigration history renders his delay in claiming unreasonable. Moreover, as Counsel correctly points out, the RPD was presented with evidence at the hearing that the Appellant applied to extend his status in Canada. This application does not appear in the RPD Record. However, from my review of the RPD hearing audio-recording, the RPD Member can be heard examining this document and commenting that it does not establish that the extension was ever granted.12 Under subsection 183(5) of the Immigration and Refugee Protection Regulations, by submitting an extension the Appellant would benefit from implied status until a final decision on the application is rendered.13 [15] As the Federal Court has found, the possession of valid immigration status may reasonably explain a delay in claiming or a failure to claim.14 In my view, given that the Appellant benefited from implied status and was not at risk of imminent removal to harm, his delay in claiming has been reasonably explained. Absent a reason to doubt his allegations, the lack of corroboration is not determinative [16] The Appellant failed to provide any evidence corroborating his allegations. On this basis, the RPD drew a negative credibility inference and found that his allegations are not true.15 I agree with the RPD that the Appellant's explanation that he had not thought to ask for a letter from his family is not reasonable. However, the RPD did not identify any credibility concerns with the Appellant's sworn testimony. Generally, it is an error to draw a negative credibility inference solely from the fact that a Claimant has failed to produce corroborative evidence.16 While the Appellant's failure to explain his lack of reasonable effort to corroborate his claim is a valid consideration, I do not find that this alone is determinative of his credibility. Insufficient questions were asked during the RPD hearing about the merits of the claim [17] The RPD asked approximately eight questions about the merits of the Appellant's claim.17 Beyond general questions about who the Appellant fears and whether he believes he would be at risk if he was returned to Jamaica, no questions were asked about the substance of his allegations. Counsel, who is different from Counsel on appeal, did not ask any questions. [18] Lines of inquiry may have included: why the Appellant believes the four XXXX are members of the Stone Crusher Gang; when, how, by who, and how many times he was told that he was suspected of being a police informant; and when, how, by who, and how many times he was threatened in Jamaica and after his arrival in Canada. [19] The Appellant's Basis of Claim form is lacking in detail.18 Absent sufficient questioning about the merits of the claim, I am unable to render my own credibility determination. [20] I recognize the administrative constraints on the RPD to proceed with claims in an efficient manner. However, where a hearing is held and credibility is a determinative issue, the RPD should question a Claimant about the substance of their allegations. The RPD erred in assessing subsection 97(1)(b) [21] The RPD found that the Appellant is a victim of crime who faces a generalized risk in Jamaica.19 Counsel argues the RPD's assessment of the Appellant's risk is in error. I agree. [22] In order to succeed with a claim under subsection 97(1)(b) of the IRPA, a Claimant must establish that it is more probable than not that they would be personally subjected to a risk to life or of cruel and unusual treatment or punishment and that this risk is not faced generally by the population.20 [23] The analysis of subsection 97(1)(b) claims involves two stages, summarized as follows:21 First Stage: Determine the risk faced by the Claimant. A. Consider whether the Claimant personally faces a present or future risk. B. Clearly identify the basis (or initial reason) for the risk. C. Clearly identify the nature of the risk. D. Clearly identify the degree of the risk (or proximity to the risk). Consider any relevant factor, including: o The severity and number of incidents; and o Any pattern or link between the incidents; and o Any change over time. E. Determine if the risk is a risk to life or risk of cruel and unusual treatment or punishment. Second Stage: Examine whether the risk is faced generally by others. F. Compare the nature and degree of the risk faced by the Claimant with the nature and degree of the risk faced generally by other individuals from that country. G. Determine whether the Claimant personally faces a risk not faced generally by other individuals from that country. Avoid: Do not conflate the initial reason for the risk (or basis of the risk) with the risk itself. Do not ask whether others could eventually find themselves in the Claimants' position. Instead, consider whether others generally are in that position now. [24] The RPD erred when it failed to clearly state the basis for the risk and the nature of the risk. The RPD also did not examine the nature and degree of the risk to determine whether it is faced generally by other individuals in Jamaica. Instead, the RPD found that the risk "appears to be quite common and generalized" when read in the context of the objective evidence.22 [25] Having independently assessed the RPD Record, I find that insufficient questions were asked about the nature and degree of the Appellant's alleged risk to life. I am unable to determine the Appellant's proximity to the alleged risk and whether this risk has evolved or escalated over time. I am unable to make my own subsection 97(1)(b) determination. CONCLUSION [26] I find that the RPD erred in its assessment of credibility and subsection 97(1)(b). I must set aside the RPD's negative determination on these issues. The Appellant's allegations were not properly canvassed at the hearing. Although the RAD is empowered to substitute its decision for that of the RPD based on its own independent assessment of the evidence, in this case, I find myself unable to do so. There is insufficient evidence on the Record. I am unable to bring finality to the Appellant's claim. [27] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) J. Pollock J. Pollock September 10, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 9, 12, at questions 2(a) and 2(h). 2 RPD hearing audio-recording, November 19, 2018. 3 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 4 Exhibit P-2, Appellant's Record, Appellant's new evidence, at p. 15. 5 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(4). 6 Canada (MCI) v. Singh, 2016 FCA 96. 7 RPD hearing audio-recording, November 19, 2018, at timestamp 00:17:40-00:18:35. 8 Refugee Protection Division Rules (RPD Rules), SOR/2012-256, at Rule 34(3)(a). 9 Canada (MCI) v. Singh, 2016 FCA 96, at para. 54; Eshetie v. Canada (MCI), 2019 FC 036, at paras. 33-34. 10 Exhibit RPD-1, RPD Record, RPD decision, at para. 9. 11 RPD hearing audio-recording, November 19, 2018, at timestamp 00:14:30. 12 RPD hearing audio-recording, November 19, 2018, at timestamp 00:08:37-00:12:20. 13 Immigration and Refugee Protection Regulations (IRPR), SC 2001, c 27, as amended, at ss. 183(5). 14 Hue v. Canada (MEI), [1988] FCJ No 283; Diallo v. Canada (MCI), 2002 FCT 2004, at para. 9; El Balazi v. Canada (MCI), 2006 FC 38, at paras. 7-9. 15 Exhibit RPD-1, RPD Record, RPD decision, at paras. 10-11. 16 Lawani v. Canada (MCI), 2018 FC 924, at para. 25; Amarapala v. Canada (MCI), 2004 FC 12, at para. 10. 17 RPD hearing audio-recording, November 19, 2018, at timestamp 00:03:34-00:05:02, 00:19:36-00:20:19. 18 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 8-17. 19 Exhibit RPD-1, RPD Record, RPD decision, at para. 13. 20 IRPA, ss. 97(1)(b)(ii). In addition to the general risk exception, Claimants must also establish that they are not excluded from protection by any of the other exceptions under subsection 97(1)(b). Specifically, the person must be unable or unwilling to avail themself of state protection; the risk must be faced in every part of the country; the risk must not be inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards; and the risk must not be caused by the inability of the country to provide adequate health or medical care. 21 Portillo v. Canada (MCI), 2012 FC 678, at paras. 40-41; Guerrero v. Canada (MCI), 2011 FC 1210, at para. 28; Correa v. Canada (MCI), 2014 FC 252, at paras. 73-77, 83-84, 89-90; Prophète v. Canada (MCI), 2009 FCA 31, at para. 7; X (Re), 2019 CanLII 141063 (CA IRB), at paras. 13-14. 22 Exhibit RPD-1, RPD Record, RPD decision, at para. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB8-32722 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