TB5-03095

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 : TB5-03095 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 29, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Swathi Sekhar 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 his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and find that the Appellant is a person in need of protection or in the alternative, refer the matter back to the RPD for re-determination. The Appellant requests an oral hearing in accordance to section 110(6) of the Immigration and Refugee Protection Act (IRPA) as an alternative. 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 he is being sought out by a street gang in Jamaica. The gang wishes to do the Appellant harm because the gang perceives the Appellant as having been involved in a situation of disrespect to a member of the gang. Members of the gang approached the Appellant one night (XXXX XXXX, 2013) while the Appellant was standing on a street corner with his friend, a Mr. XXXX. The gangsters gave chase and ended up shooting and killing Mr. XXXX. The Appellant fled the scene for the safety of his home and later, the next day, bought an airline ticket and flew to Canada on XXXX XXXX, 2013 (XXXX days after the event of the murder of Mr. XXXX). [4] The Appellant did not file a claim for protection in Canada because he did not know he could until such time, XXXX months later, when he was apprehended by the Canadian Border Services Agency (CBSA) for living and working in Canada without status. He was advised at that time that he could seek protection. The Appellant filed his Basis of Claim (BOC) form on or about January 5, 2015. [5] The Appellant's application for refugee protection was heard on March 3, 2015. The Minister intervened in the hearing seeking an exclusion of the Appellant based on the premise that there were serious reasons to consider that the Appellant had committed serious non-political crimes while outside of Canada, namely in the United States of America (USA). The RPD examined the evidence and heard testimony regarding the exclusion and found that the Appellant would not be excluded as his crimes did not meet the intended definition of "serious." The RPD then looked at the inclusionary end of the claim and found that the Appellant had failed to rebut the presumption of state protection in Jamaica. As State protection is a determinative issue, the RPD dismissed the claim. [6] The Appellant submits that the RPD erred 1) in its assessment of the Appellant's credibility, 2) in its assessment of state protection and 3) in its failure to conduct an analysis under section 97of the IRPA. ANALYSIS [7] The Appellant has requested that, to find that he is a person in need of protection or in the alternative to refer the matter back to the RPD for re-determination, and requests an oral hearing, in accordance to section 110(6) be held by the RAD. [8] According to the IRPA section 110(6): (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [9] The documentary evidence referred to in subsection (3) is "new evidence" none of which has been disclosed by the Appellant. Therefore, the request for an oral hearing is denied. Role of the RAD [10] The RAD finds that the recent Federal Court decision, in Huruglica,1 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 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." [11] 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 [12] The Appellant argues that the RPD erred 1) in its assessment of the Appellant's credibility, 2) in its assessment of state protection and 3) in its failure to conduct an analysis under section 97 of the IRPA. [13] Dealing with the third issue first, the RAD respectfully disagrees with the Appellant. The Appellant cites case law which seems to require the RPD to do a separate assessment of a claim under section 97 in cases based on credibility findings. The RAD of course would agree if the RPD had made its decision based solely on credibility. However, the RAD reminds the Appellant that the RPD wrote an alternative decision based on the availability of state protection. The RPD found that the Appellant failed to rebut the presumption of state protection. In a situation where it is deemed that state protection is available, a section 97 analysis is redundant since an Appellant cannot be granted status under section 97 if state protection is available to him. The RAD finds that the RPD did not err in this matter. [14] In the second issue, state protection, the RAD has examined it very closely. Presumption of State Protection [15] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown.2 [16] 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.3 [17] The presumption of state protection applies equally to cases where the state is alleged to be a persecutor.4 Rebutting the presumption [18] 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).5 [19] A claimant who alleges that the state protection is inadequate must persuade the Immigration and Refugee Board (Board) that the evidence establishes that the state protection is inadequate.6 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.7 [20] The Appellant did not go to the local police office to complain or to bear witness against the gangsters who threatened him and allegedly murdered his friend. The Appellant alleges that the police in Jamaica are "very corrupted" and cites the Board's own documents8 to prove the point. However, most of the documentation outlining "corruption" of police is speaking to a serious issue of the police taking matters into their own hands by way of extra judicial killings, that is, they are accused of killing the very gangsters who the Appellant fears. The police "allegedly were meting out the justice they believed was unavailable through the judicial system."9 Although this is obviously a corrupt and evil practice, it is not one perpetrated by all police officers, in all cases or all of the time, and there is insufficient evidence to suggest that the corruption that does exist would cause direct harm to the Appellant should he access state protection. [21] In the absence of a compelling explanation, where the state is a functioning democracy with willingness and the apparatus necessary to provide a measure of protection to its citizens, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim.10 This is so even where the protective services of the state have gaps or deficiencies.11 It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system.12 [22] The RAD recognizes that there is some corruption amongst some police officers in Jamaica, as there is in many jurisdictions. This in fact may give the Appellant doubt as to the police force's effectiveness. [23] The RAD considers Rio Ramirez13 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.14 In this case, the Appellant has not really tested it as he chose not to pursue protection at any level in Jamaica. A claimant cannot rebut the presumption of state protection in a functioning democracy by asserting only a subjective reluctance to engage the state.15 [24] The RAD finds that the Appellant failed to try to access the protection available to him in any meaningful way. The Appellant has failed to rebut the existence of state protection in Jamaica, which is determinative. Consequently, the RAD will not look at other issues alleged 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 [25] The RAD has found that the RPD decision will stand as written. CONCLUSION [26] 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 July 29, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 2 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 3 Ibid. 4 Hinzman v. Canada (Minister of Citizenship and Immigration) [2007], 1 F.C.R. 561 (F.C.); 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 5 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 6 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), para. 20, 24. 7 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), para. 30. 8 Exhibit RPD-1, National Documentation Package (NDP) for Jamaica (February 27, 2015), items 2.1, 2.4, 2.5, 7.3, 7.4. 9 Exhibit P-2, Appellant's Record, Memorandum, at p. 64, para 37. 10 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 11 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 12 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010, 2010 FC 197; Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010, 2010 FC 393. 13 Ramirez, Leticia Lizet Del Rio v. M.C.I. (F.C., no. IMM-1301-08), Lagacé, October 31, 2008, 2008 FC 1214. 14 Ibid. 15 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03095