TB4-08126

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 : TB4-08126 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 December 17, 2014 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Silas Tilluckdharry 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 documents as proposed new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to grant her a new hearing where her application can be reviewed once again. 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, upon return to Jamaica, she will be harmed by members of her community and her congregation because she assisted a gay man and will be perceived as gay or as a gay supporter. [4] The Appellant's application for refugee protection was heard on August 12, 2014. By a decision of August 22, 2014, the RPD rejected the claim, finding that it is unlikely that police would perceive the Appellant to be gay or a gay supporter and adequate state protection is available to her in Jamaica. [5] The Appellant submits that it is very dangerous to support the gay community in Jamaica and it would be very difficult for her to obtain the proper protection from the authorities. ANALYSIS Role of the RAD [6] The Appellant makes no arguments as to the role of the RAD. What is the role of the RAD in considering an appeal against a decision of the RPD? In Huruglica, the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [7] Justice Phelan stated the following in Huruglica: 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.3 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".4 [8] The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. Admissibility of Evidence Submitted on Appeal [9] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.5 [10] The Appellant has tendered two documents as proposed new evidence in support of her appeal. The first document is: Jamaica. State-Sponsored Homophobia: A World Survey of Laws: Criminalization, Protection and Recognition of Same-Sex Love.6 The second document is the Immigration and Refugee Board of Canada's Response to Information Request (RIR) Jamaica: Treatment of sexual minorities, including legislation, state protection and support services (2009-December 2012).7 [11] In the case at hand, the Appellant failed to make full and detailed submissions in her Memorandum about how the proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to her. Nonetheless, the RAD reviewed the documents to ascertain if they met the requirements of Section 110(4) and any potential relevance to the case at hand. The RAD notes that both documents presented as proposed new evidence already exist in the record and were before the RPD when a decision was made in this case. The first document is item 6.6 in the National Documentation Package (NDP) for Jamaica.8 The second document is item 6.1 in the NDP for Jamaica.9 [12] The two documents tendered as proposed new evidence fail to meet the requirements of Section 110(4) in that they were available before the rejection of the Appellant's claim. Moreover, the documents tendered were already in evidence and before the RPD prior to a decision being rendered in the case and are contained in the RPD record that is before the RAD. Accordingly, the RAD finds that the documents do not meet the test of new evidence and as such will not be accepted as new evidence in this appeal. Request for an Oral Hearing [13] The Appellant requests an oral hearing before the RAD. [14] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [15] According to Section 110(6), upon which the Appellants must rely, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellants, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [16] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] No new evidence was accepted by the RAD in this appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. The RPD's Findings State protection [18] The Appellant submits that the RPD erred in finding that there is state protection available to her in Jamaica. She argues that she would be unable to obtain police protection because homosexuals or those who are perceived to be homosexual or those who support homosexuals are assaulted and abused by everyone in Jamaica, including the authorities. The Appellant submits that she was threatened by individuals who thought she was homosexual. She also submits that she was subjected to discriminatory treatment due to the fact that she assisted homosexuals. [19] The Appellant did not report to police the threats she received because she believed they would not assist her as they were homophobic like the rest of Jamaican society. The RPD found XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX supporter. It noted the following aspects of her profile in paragraph 33 of its decision: a) She has been married since XXXX XXXX, 1991, and has children; b) She is an ordained pastor in an XXXX XXXX church since XXXX XXXX 2010; c) Her husband is a XXXX XXXX at a XXXX and a XXXX XXXX; d) She testified that she believed, as a woman of god, that marriage and relationships should be between men and women and not man and man or woman and woman. [20] The RPD also noted that the Appellant is not gay and no one in her community or church had thought she was gay or perceived her to be gay prior to an incident on XXXX XXXX, 2014 when she assisted a gay man. It was also noted that the Appellant was not involved with the gay community at large and was not an outspoken activist of gay rights in the community. The RPD found that the Appellant had not met the onus of establishing that police would not help her in Jamaica because she helped a gay man from being harmed by a homophobic crowd. [21] The RAD concurs with the RPD's finding that the Appellant has not provided clear and convincing evidence that would suggest police would not assist her because she helped a gay man from being harmed by a homophobic crowd. It would be reasonable to conclude that police would not view the Appellant as a gay person or a gay activist, even though she assisted a gay man. The Appellant was a XXXX at a church and was known to assist congregants. Furthermore, the Appellant joined the XXXX XXXX XXXX XXXX XXXX in XXXX 2009.10 Considering her membership in this organization, it would be reasonable to conclude that she had interacted with XXXX XXXX and had a relationship with them that may have been helpful to her in explaining her situation to XXXX XXXX or obtaining protection if or when she required it. As such, the RAD further finds that it was unreasonable for the Appellant to not seek state protection in Jamaica prior to seeking international protection in Canada. The Appellant could reasonably have been expected to approach the authorities for protection. [22] In its decision, the RPD quotes from various documents regarding the adequacy of state protection in Jamaica for victims of crime since it found that the Appellant was not gay and found that she would not be perceived as being gay or a gay supporter. In paragraph 42 of its decision, the RPD refers to a document that indicates that the Jamaican Constabulary Force (JCF) has primary responsibility for internal security and is assisted by the Island Special Constabulary Force. In paragraph 43, the RPD refers to a document that indicates that the JCF maintains divisions focusing on community policing, special response, intelligence gathering and internal affairs. The RPD acknowledges that corruption in the JCF remained a problem despite a notable increase in the number of arrests of officers for corruption. However, the RPD found that the documents in evidence suggest that Jamaica is providing adequate state protection to its citizens who are victims of crime and violence. [23] The RPD notes that there are some inconsistencies among the sources within the documentary evidence; however, the predominance of objective evidence regarding current country conditions suggests that, although not perfect, there is adequate state protection in Jamaica for victims of crime. The RAD notes that the documentary evidence indicates that police in Jamaica investigate crimes and the perpetrators are arrested and prosecuted if there is sufficient evidence. It is stated in a Response to Information Request (RIR) that 30 percent of violent crime cases are cleared up annually and the conviction rate for crimes is approximately 10 percent. It is also indicated in the same RIR that police make homicide-related arrests in 44 percent of cases annually and perpetrators are convicted in 5 percent of cases.11 The RPD indicated that it reviewed and considered all the evidence when it found that adequate state protection exists for the Appellant in Jamaica. [24] The Appellant's evidence includes a number of documents regarding homophobia and violence against lesbian, gays, bisexual, and transgender (LGBT) individuals in Jamaica.12 The RPD acknowledges that homophobia was widespread in Jamaica. The RPD indicates that there is documentary evidence that shows that some police officers in the JCF are homophobic and do not treat gays fairly. It was noted that there were reported cases that some officers did not assist or investigate a complaint properly if the victim was gay. However, as noted above, the RPD acknowledged that the Appellant was not gay and found that she would not be perceived as gay or as a gay supporter. Therefore, the RAD finds that little weight can be assigned to the Appellant's evidence with respect to how LGBT individuals are treated in Jamaica since it does not address the adequacy of state protection for non-LGBT individuals such as the Appellant in this case. [25] The RPD gave little or no evidentiary weight to two letters the Appellant submitted to support her claim. One letter is from the senior pastor at the church the Appellant attends in Canada13 and the other letter is from the Appellant's husband who remains in Jamaica.14 The letters were intended to corroborate the Appellant's allegation that she was a victim of threats and harassment in Jamaica. The RPD noted several deficiencies with each of the letters, however found that neither provided evidence regarding the availability of state protection in Jamaica. The RAD concurs with the RPD assigning little weight to the letters. The RAD notes that neither letter addresses the determinative issue in this claim which is the adequacy of state protection for the Appellant in Jamaica. The RAD also notes that the letters do not attest to the notion that the Appellant is perceived to be gay or a supporter of gay rights. [26] There is no need for the RAD to repeat in detail here what the RPD discussed in its reasons-that Jamaica is in effective control of its territory and has in place a functioning security force to uphold the laws and constitution of the country, that there were some inconsistencies among the sources within the documentary evidence, that corruption and deficiencies in the security forces exist but did not appear to be systemic. In the RAD's view, the most important question to be answered here is whether the objective evidence rebuts the presumption of adequate state protection for the Appellant. It is not sufficient for the Board to find that there is state protection and to rely on the statement of its good intentions on the part of the government to improve the situation. [27] The RAD notes the following examples in the documentary evidence regarding the effectiveness of state protection in Jamaica. * The sustained and valiant efforts made by the security forces in responding to systematic and widespread attacks from criminal networks in XXXX 2010 and the subsequent extradition of XXXX XXXX, resulted in a significant reduction of the murder rate.15 * Through strong leadership, democratic institutions, and support from the United States and other international partners, Jamaica continued to make slow but steady progress in combating narcotics trafficking, corruption and organized crime in 2012. There were success stories in the police anti-corruption program, the police forensic laboratory, the community-based policing initiative, and the vetted police units attacking narcotics and lottery scams. There were also successes within the offices of the Independent Commission of Investigations, the Financial * Investigation Division and the Contractor General, which struggled with limited resources to reduce civilian deaths resulting from police actions, financial crime, and corruption in government contracting, respectively.16 * The government made efforts in the protection of trafficking victims during the reporting period. Authorities identified 23 suspected victims of trafficking, including 21 Honduran children they rescued from forced labor on a fishing boat. Jamaican authorities involved in the fishing boat case demonstrated a strong commitment to the proactive identification of trafficking victims and implementation of victim protection principles.17 * JCF Commissioner Owen Ellington attributed the recent spate of murders to escalating gang conflicts despite increased arrests and gun seizures by police.18 * The government adopted a hard-line security response in the wake of the Tivoli incursion. Supported by members of the international community, the response has led to a concomitant disruption to criminal networks, and a negotiated end to violence with leading criminal groups. Combined, these efforts, many of which included the arbitrary use of force, have contributed to a decline in crime over the past year. 19 * Jamaica's security sector-including the police, the military, and private security companies-has made wide use of geospatial technologies. While geographic information systems (GIS) and other geospatial technologies were initially used as map-making tools, they are increasingly being woven into operational use. In addition to using GIS to map crimes and crime scenes, the police are beginning to use it in investigations.20 * The JCF is already committed to a series of reforms that have started to overcome the legacy of an adversarial relationship between the police and the general public.21 [28] The evidence noted above indicates that police in Jamaica have been effective in addressing the problem of crime and criminality by taking various measures including adequately investigating crimes. The documentary evidence also indicates that victims of crime in Jamaica are afforded various protections and the perpetrators are arrested and prosecuted when there is sufficient evidence. [29] Absent a complete breakdown of the state apparatus, it is for a refugee claimant to provide clear and convincing evidence of the state's unwillingness or inability to provide adequate-not perfect-protection.22 It is not for the RPD, or the RAD, to prove that state protection is adequate, but for the Appellant to rebut the presumption. [30] The Appellant's own evidence-that she did not approach the authorities for assistance-does nothing to rebut the presumption of state protection. The objective evidence is certainly not overwhelming in establishing the adequacy of state protection in Jamaica; rather, that evidence is mixed. It reports serious problems of crime and criminality, which in some cases is not appropriately responded to by the authorities. [31] In the RAD's view, the evidence here is mixed and conflicting. Evidence that would be much more helpful-such as current statistics about the arrests, convictions, and sentences of perpetrators of crimes, or about discipline imposed on police officers who respond inadequately to such matters-is simply not in the record here. However, as stated above, the presumption of adequate state protection stands until rebutted with clear and convincing evidence. The evidence here is neither clear nor convincing, and the presumption must therefore stand: mixed evidence does not rebut the presumption of adequate state protection,23 and the Appellant herself made no effort to seek protection. CONCLUSION [32] Having reviewed both the RPD's decision and the evidence in the record, the RAD has reached the same conclusion as did the RPD with respect to the Appellant's refugee claim. [33] Pursuant to Section 111(1)(a) of 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 therefore dismissed. (signed) 'M. Pettinella' M. Pettinella December 17, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 6 Exhibit P-2, at p. 8. 7 Exhibit P-2, at pp. 9-13. 8 RPD-1, National Documentation Package, Jamaica, item 6.6 9 Ibid., item 6.1 10 Exhibit RPD-1, at p. 162. 11 Exhibit RPD-1, at p. 129, item 7.3. 12 Exhibit RPD-1, at pp. 134-156. 13 Exhibit RPD-1, at p. 158. 14 Exhibit RPD-1, at p. 159. 15 Exhibit RPD-1, at p. 129, item 7.8. 16 Exhibit RPD-1, at p. 128, item 7.1. 17 Exhibit RPD-1, at pp. 128-129, item 7.2. 18 Exhibit RPD-1, at p. 129, item 7.5. 19 Exhibit RPD-1, at p. 129, item 7.6. 20 Exhibit RPD-1, at p. 129, item 7.7. 21 Exhibit RPD-1, at p. 129, item 7.9. 22 M.C.I. v. Flores Carrillo, Maria del Rosario (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008; 2008 FCA 94, at para 19; Ruszo, Zsolt v. M.C.I. (F.C., no. IMM-5386-12), Crampton, October 1, 2013; 2013 FC 1004, at para 29; Canada (Attorney General) v Ward, [1993] 2 SCR 689, at para 52. 23 Majlat v. M.C.I. (F.C., no. IMM-1886-13), Gleason, October 10, 2014; 2014 FC 965, para. 45; Varga, Mario Gyula v. M.C.I. (F.C., no. IMM-1823-13), Harrington, May 27, 2014; 2014 FC 510, para. 24; Ndoja, Paulin et al. v. M.C.I. (F.C., no. IMM-3243-12), Roy, February 15, 2013; 2013 FC 163, para. 16-17; Llana, Xhesika v. M.C.I. (F.C., no. IMM-2918-11), Near, December 12, 2011; 2011 FC 1450, para. 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08126