TB4-04727

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 : TB4-04727 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 17, 2016 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Subodh S. Bharati 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 ("Appellant"), a citizen of Jamaica, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant is submitting new evidence and is not requesting an oral hearing. She requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to ss. 111 (1) (b) of the Immigration and Refugee Protection Act ("IRPA"), the Refugee Appeal Division ("RAD") , sets aside the determination of the RPD and substitutes a determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant states that her father died and her mother left her when she was 11 years of age. She was forced to live with a much older man, XXXX XXXX, who abused her physically, emotionally and sexually. She became pregnant against her will on three occasions by the age of 16. The Appellant left Mr. XXXX and had a brief relationship with another individual which produced one son. The Appellant went to Montego Bay where she entered into a relationship with an individual by the name of XXXX XXXX, who abused her physically and threatened her with death. She alleges that Mr. XXXX stalked and threatened her after she left him. [4] She left Jamaica for the Cayman Islands in 2002. She returned to Jamaica periodically and stated that she used a disguise in order that she would not be recognized. She returned to Jamaica in 2007. She states that fearing for her life, she came to Canada on XXXX XXXX, 2008. She made a claim for refugee protection on October 10, 2013. ROLE OF THE RAD [5] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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 claimant 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". [6] Accordingly, the RAD will 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reason: (a) The Appellant failed to rebut the presumption of state protection with clear and convincing evidence. New Evidence [8] The Appellant submits the following document as new evidence: (a) Immigration and Refugee Board Response to Information Request (RIR), JAM104717.E, Jamaica: Domestic Violence, including legislation, state protection and support services available (2010-2013). Dated January 20, 2014. [9] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [10] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 [11] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [12] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [13] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.5 Old evidence remains old evidence, even if it is placed in a new document with a recent date. [14] However, the RAD acknowledges the Federal Court decision in Singh, where the Court wrote that; ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.6 [15] The Appellant submits that this RIR is dated January 20, 2014 and was only made available in the National Documentation Package of the IRB after the date of the Appellant's RPD hearing. As such, it was not available to be presented to the RPD and therefore, meets the requirements of subsection 110(4) of the IRPA. [16] The document is dated before the date of the RPD hearing on May 2, 2014, but it was not reasonably available to be presented to the RPD prior to the rejection of the claim. The RAD therefore, accepts the document in evidence. There is no question as to the credibility of the document and therefore there is no reason to hold an oral hearing under subsection 110(6) of the IRPA. Submissions [17] The Appellant submits that the RPD erred in its state protection analysis by (i) making findings unsupported by the evidence, (ii) by making findings inconsistent with established jurisprudence, and (iii) by making findings without regard to the IRB's Gender Guidelines. [18] The Appellant further submits that the RPD erred in its analysis of compelling reasons under subsection 108(4) of the IRPA. Analysis [19] The RPD found that while it noted that the Appellant's conduct in Canada gave rise to credibility concerns, it found that her oral testimony was credible. The RPD stated that she answered in a forthright and spontaneous manner and she did not embellish her testimony. In coming to this conclusion the RPD took into consideration the Chairperson's Gender Guidelines7 which highlight that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. The Guideline was used to help assess the circumstances of the claim and to understand and apply the added sensitivities necessary to properly assess, whether any credibility issues are the result of such difficulties, or an attempt to fabricate evidence. [20] The RPD also considered that the Appellant with six years of education was neither a particularly sophisticated nor informed individual. The RPD also considered a psychological report provided by Dr. XXXX XXXX.8 The RPD agreed with the report that the Appellant was very anxious and tearful throughout most of her testimony, but especially when describing some of her traumatic experiences. Her anxiety was so severe, that at times she had to pause and wait until the tremor of her lower jawbone would stop as it made it impossible for her to speak. The RPD found that her oral testimony concerning the abuse she suffered was compelling and persuasive. The RPD stated that it took into account her demeanor in the hearing room and her profile and accepted that she was a victim of domestic abuse. [21] In accordance with the Huruglica decision, deference will be afforded to the credibility findings of the RPD where it has a particular advantage in reaching its conclusions. The RPD was able to observe the Appellant and listen to her oral testimony in reaching its conclusion that she was credible in her allegations. Therefore, the RAD accepts this conclusion. [22] The RPD determined and that the Appellant had not rebutted the presumption of state protection with clear and convincing evidence. The RAD disagrees with this finding. The RPD accepted the narrative of the Appellant as credible. The Appellant had unsuccessfully sought state protection on multiple occasions including an incident where a police officer attempted to exploit her in return for taking action on her complaint. This personal evidence must be taken into account in analyzing the issue of state protection. [23] The RAD does not owe deference to the RPD in assessing documentary evidence. The documentary evidence in the IRB National Documentation Package and the documentary evidence produced by the Appellant show that state efforts to provide protection to women have not actually translated into adequate protection at the operational level. [24] The UK Country of Origin Report confirms widespread corruption in the Jamaican police force.9 It also indicates that though positive steps were taken in recent years within the police services to combat sexual violence and provide assistance to victims "the high incidence of violence, combined with the low clear-up rate for sexual crimes and reticence in reporting on sexual crimes, suggests that more vigorous efforts are needed to enforce the law and to bring perpetrators to justice."10 [25] Another report states that the judicial system in Jamaica is extremely ineffective, and it can take years for cases to come to trial.11 It is also stated that there are a variety of human rights structures in Jamaica, such as the Office for the Public Defender, the Children's Advocate and the Political Ombudsman, but these institutions receive insufficient assistance in financing from the state.12 [26] Another item states: "According to the Woman Inc. representative, domestic violence legislation is comprehensive but enforcement and reporting are the real issues. Similarly, Freedom House reports that women's groups, government bodies and NGOs have noted that while much of the legal structure is in place to help reduce violence and discrimination against women, enforcement remains lacking. In the opinion of the Woman Inc. representative, state protection is not available to victims of domestic violence due to massive resource constraints on the part of the government. It was also stated that unless the victim is a witness who qualifies for protection under the witness protection program there is no other form of state protection. There was a general reluctance by the police to become involved in domestic issues, which led to cases not being pursued vigorously when reported. It was also stated that through discussions that took place in community focus groups on domestic violence issues, it was determined that the abuse often occurs during the night when women are unable to access the police."13 [27] Other documentary evidence states: "In June 2013, the UN Economic, Social and Cultural Rights Committee expressed its profound concern at high rates of domestic and sexual violence in Jamaica. The Government of Jamaica itself states that there is an unacceptable high level of violence against women and children in the country. Violence against women is widespread and Amnesty International similarly states that sexual violence against women and girls remains a concern in Jamaica. The US Country Reports on Human Rights Practices for 2012 states that violence against women, including spousal abuse, is perpetuated by social and cultural norms. In its June 2013 report, the UN Economic, Social and Cultural Rights Committee expressed its profound concern at the Jamaican government's lack of a comprehensive strategy targeting domestic and sexual violence."14 [28] The RAD finds that in considering the personal circumstances of the Appellant and the documentary evidence in this matter, the presumption of state protection has been rebutted. DISPOSITION [29] The appeal is allowed. Pursuant to ss. 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes a determination that, in its opinion should have been made, namely that the Appellant is a Convention refugee. (signed) "Ken Atkinson" Ken Atkinson February 17, 2016 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 See Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, para. 19. 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 6 Singh v.M.C.I. 2014 FC 1022.and 7 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 8 Exhibit RPD-1, p. 252. 9 RPD-Exhibit 3, National Documentation Package for Jamaica, ( May 3, 2013), Item 2.4, UK Home Office, COI Report on Jamaica, January 15, 2013. 10 Ibid. 11 Ibib., Item 7.3, RIR JAM104263.E, January14, 2013. 12 Ibid., item 10.3, RIR JAM103640.E, December 20, 2010. 13 Ibid., item 5.2, RIR JAM 103321.E,. 14 RIR JAM104717.E, Jamaica: domestic violence, including legislation, state protection and support services Available. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :