TB6-07574

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 : TB6-07574 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 August 17, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Marvin M Moses 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 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 her appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is 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 alleged before the RPD that she fears members of a gang of criminals who threatened her and her family in 2011 - 2012 because her mother testified against the XXXX of the criminal gang when that XXXX was charged with the murder of the Appellant's XXXX. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on April 26, 2016. A negative decision was rendered in writing on May 16, 2016. The RPD found that the Appellant was unable to establish her claim on the basis of no nexus to the Convention, and failing to rebut the presumption of state protection. [4] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Appellant's Issues [5] The Appellant submits that the RPD erred; a) by basing its decision on erroneous findings of fact or misstatements of fact made in a perverse or capricious manner; b) by making unreasonable findings with respect to state protection because of the panel's reasoning and conduct throughout the hearing; and c) in her analysis of state protection; ANALYSIS The Role of the RAD [6] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [7] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [8] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,6 with no deference accorded to the RPD.7 [9] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [10] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [11] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [12] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [13] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [14] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [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 Arguments [16] The Appellant argues that the RPD erred in her analysis of state protection. I disagree and will explain why, below. [17] The panel, after canvassing the documentary evidence in the Board's National Documentary Package, noted that Jamaica is a constitutional democracy with a proper security force, including the Jamaican Constabulary, to maintain law and order. The panel recognized that Jamaica has one of the highest homicide rates in the world but at the same time acknowledged the progress made by the state in fighting crime, which has resulted in a distinct reduction in violent crime, by as much as 15% in 2015. The panel found, after reviewing the documentation, that Jamaica is not a failed state. I concur with the panel in that regard. [18] The panel made note of the investigation, arrest, prosecution and incarceration of the man who murdered the Appellant's XXXX, as well as the man who attempted to break and enter the family home. I find that the panel did not err in her analysis of state protection. I have, however, conducted my own independent analysis of state protection in Jamaica, which follows below. [19] 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). (Ward8) Ward is a Supreme Court of Canada citation which I prefer over the decisions of the lower courts. [20] The Appellant argues that the state failed to provide adequate protection to the Appellant and her family when her mother requested help. This is contradicted by the Appellant's own evidence in which she has stated that the first time the mother called the police for help, they did attend the scene. As the bikers who were harassing the family were gone, all the police could do was to advise the family to keep their "grill"9 locked and to stay indoors when the bikers were around. I cannot think of what more the police could have done as there was no identification of any individual involved in the harassment alleged by the Appellant and none of the perpetrators were in attendance when the police arrived. [21] Counsel for the Appellant argues that the Appellant testified that the police took about three hours to arrive after being called. That is not what the testimony was. I have listened to the audio recording and specifically the section on the recording dealing with this issue. The Appellant actually testified that it is known that the police can be called at perhaps 10 am and not arrive until 1 pm (3 hours) but the Appellant did not testify that this time lapse occurred on the day that her mother called the police the first time. The testimony was basically hearsay of what other people had remarked on the local police response time but was not dealing with the police response time to the Appellant's mother's call for help. Counsel actually writes10 "The Member omits that the police came 3 hours late as per the testimony". However, as previously stated above, that was not the Appellant's testimony. Counsel has misapprehended the testimony of his client. Counsel mentions a number of items of testimony that the Member omitted putting into the Reasons and Decision, however, counsel appears to have forgotten that the panel is not obligated to write on every bit of evidence adduced in the hearing. [22] Counsel argues that the panel erred when the panel considered state protection was adequate when, on the second time that the police were called, the police did not attend the scene but advised the Appellant and her family to lock their grill and stay indoors until the bikers left. I concur with counsel that this particular response was not an example of adequate state protection, however local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of state inability or refusal to provide protection. (Zhuravlvev11). Evidence of adequate state protection is clear when I look at the response to the murder of the Appellant's XXXX, the response of police to the first complaint of the Appellant's mother and the response to the complaint of the Appellant's step-father when the step-father came upon an intruder in the household, shot at the intruder and called the police. The police attended the scene and did a full investigation which resulted in the capture and conviction of the perpetrator. [23] Counsel argues that the panel erred by finding that the actions attributed to the Commissioner of Corrections were examples of adequate state protection. Counsel argues that these actions were the result of requests made by the father of the Appellant. That is correct, however, almost all instances of state protection occur as a result of a request from the person(s) needing protection. The Commissioner of Corrections is a state official operating a state facility and made that state facility (safe house / half-way house) exclusively available to the Appellant and her family for their protection. The same state authority gave the father a handgun for protection and provided security for the family in the safe-house. Regardless of how this came about (who requested it) it is a fact that the protection offered and accepted was offered by the state and proved to be more than adequate as the Appellant has testified that there was no harassment the entire time that the family was in that safe-house. [24] In determining whether protection is adequate, it is important to analyze not merely whether a legislative and procedural framework for protection exists, but also whether the state, through the police or other authorities, is able and willing to effectively implement that framework. (emphasis added) (Elcock,12 Torres,13 Wisdom-Hall14) A state must engage in serious efforts to protect its citizens at the operational level. (Velazquez,15 Williams16) Where there is evidence that the government is taking steps to protect the target group, in the absence of evidence to the contrary, it must be presumed that these steps will be effective. (Manorath17) [25] In the case at bar, the police were very effective as was the state in the investigation, apprehension, prosecution and incarceration of the person who murdered the Appellant's XXXX. As evidenced by both testimony and more obviously the good health of the Appellant, the state, by way of the Corrections Commissioner and at the request of the father of the Appellant, was equally responsive and effective. The police and the state were equally effective in the investigation and apprehension, etc., of the person who attempted to break into the family home. [26] The police were less effective when it came to the more minor incidents of the harassing phone calls, which, contrary to counsel's submissions, were not threatening calls but calls during which the callers said nothing while breathing heavily. No threats were made. It is speculative to suggest that such a call or calls had anything to do with the murder case as counsel and the Appellant contend. There is simply insufficient evidence to support that allegation. [27] In regards to the "bikers" outside the Appellant's home, again the police were not very effective, however, as previously said, local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of state inability or refusal to provide protection. I find that the state has not, on a broader pattern, been unable or unwilling to provide that protection. [28] Jamaica is a constitutional parliamentary democracy and a Commonwealth realm. It has a common-law system based on English law and the Chief of State is Queen Elizabeth II (since 6 February 1952); represented by Governor General Dr. Patrick L. Allen (since 26 February 2009)18 Jamaica is a fully functioning democracy and 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. (Camacho19) This is so even where the protective services of the state have gaps or deficiencies. (Salazar Santos20) It is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system. (Marquez Alvarez21, Romero Castaneda22) Even if the local police were unwilling or unable to provide protection, that alone is insufficient to rebut the presumption of state protection. (Zhuravlvev23) [29] I am not suggesting that the Appellant has failed to pursue state protection in Jamaica, but rather that she and her family have received state protection and should the Appellant need more state protection, it would be her responsibility to properly seek it out. [30] Counsel argues that the Appellant suffers (and testified to that fact) from debilitating fear at times of being targeted and has trouble sleeping, has nightmares and wakes up in fright with anxiety. The Appellant stated that she suffered none of this before the "incident", presumably the beginning of the harassment. [31] States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. (Ward24) Jamaica is not in a state of complete or even partial breakdown as evidenced in the report25 of the U.S. Central Intelligence Agency [32] 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. (Ward26) It is clear to me that Jamaica is capable of protecting its citizens as evidenced by this case. Although the Appellant does indicate subjective fear of the alleged gang members, the state is capable of protecting her should she need it. [33] Counsel argues that the panel misconstrued or ignored all of the points addressed above with respect to whether state protection was actually provided. I disagree with counsel. It is not necessary for the panel and in fact is an error if the panel is microscopic in the analysis on any particular case. The panel has written an overall set of reasons and a decision which encompasses the material facts at the core of this claim/appeal. The panel has mentioned that the gang XXXX was sentenced to XXXX XXXX XXXX years in prison and by mentioning that, counsel argues, the panel has misconstrued the perpetrator of the allegations and therefore errs. Counsel errs on this issue. The panel is correct in summarizing state protection and uses as an example of that protection, the incarceration of the perpetrator of the single largest crime against this family including the Appellant. That crime was the murder of the Appellants XXXX. The panel has not written that the incarcerated individual is the alleged perpetrator of the other crimes and misdemeanors. [34] The Appellant argues that the RPD erred by using the mischaracterization of the evidence (as argued above) and the erroneous finding of fact to discredit uncontroverted documentary evidence proving the contrary. I disagree for the reasons I have written, individually, above. Conclusion [35] State protection is determinative, and as found by the panel, that determination applies to both section 96 and 97 of the IRPA. I find that the Appellant has failed to rebut the presumption of state protection in Jamaica. [36] I concur with the RPD that no nexus to section 96 exists as the alleged persecution was in fact a vendetta against the family and vendettas are not grounds for a refugee (section 96) claim. [37] I further find that on a balance of probabilities, should the Appellant return to Jamaica and be in need of state protection, that protection would be forthcoming. Disposition [38] The RAD has found that the RPD decision will stand. CONCLUSION [39] 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 August 17, 2016 Date 1 Exhibit RPD-1, RPD's Record, exhibit 2. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para 14, Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 4 Dhillon, supra, footnote 3, para. 14-18. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724. 9 "Grill" is a metal gate used in place of a door. 10 Exhibit P-2, Appellant's Record, Memorandum, at p. 11, para. 14. 11 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000. Reported: Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 12 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999. 13 Torres, Betsabe Del Calmen Balmaceda v. M.C.I. (F.C., IMM-2009-04), Pinard, May 10, 2005, 2005 FC 660. 14 Wisdom-Hall, Tanesha v. M.C.I. (F.C., no. IMM-4581-07), Hughes, May 28, 2008, 2008 FC 685. 15 In Velazquez, Rafael Sotelo v. M.C.I. (F.C., no. IMM-6581-10), Near, June 27, 2011, 2011 FC 775, the Court stated: "Case law does support the contention that serious efforts by a state will only translate into adequate state protection where there is the capacity to implement policy changes at an operational level." 16 In Williams, Mishka Matika v. M.C.I. (F.C., no. IMM-735-11), O'Reilly, October 6, 2011, 2011 FC 1134, the Court stated: "When examining whether a state is making serious efforts to protect its citizens, that protection must be evaluated at the operational level, particularly in cases of violence against women." 17 Manorath, Rahonie v. M.C.I. (F.C.T.D., no. IMM-2369-94), Cullen, January 26, 1995. 18 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Jamaica (February 29, 2016), item 1.3. 19 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007, 2007 FC 830. 20 Santos, Marco Antonio Salazar v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007, 2007 FC 793. 21 Marquez Alvarez, Guillermo v. M.C.I. (F.C., no. IMM-2477-09), Boivin, February 23, 2010; 2010 FC 197. 22 Romero Castaneda, Manuel Alejandro v. M.C.I. (F.C., no. IMM-4838-09), Boivin, April 13, 2010; 2010 FC 393. 23 Zhuravlvev, Anatoliy v. M.C.I. (F.C.T.D., no. IMM-3603-99), Pelletier, April 14, 2000. Reported: Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 24 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724, at 725. 25 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Jamaica (February 29, 2016), item 1.3. 26 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 724, at 709. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07574