TB4-02600

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 : TB4-02600 Private Proceeding / Huis clos Redetermination of the Appeal 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 September 16, 2015 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jennifer Mary Pollock 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 Refugee Appeal Division ("RAD") previously dismissed the appeal. The RAD's decision was set aside by the Federal Court on judicial review. According to a Judgment of Mr. Justice M.D. Manson, dated XXXX XXXX, 2015, the appeal was referred back to the RAD for re-consideration by a differently constituted panel. The Appellant tendered new evidence in her appeal and requested an oral hearing under subsection 110(6) of the Immigration and Refugee Protection Act ("IRPA"). The Appellant asks that the RAD allow the appeal, the decision of the RPD be set aside and she be found a Convention refugee or a person in need of protection or alternatively, 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 IRPA, the RAD sets aside the determination of the RPD that the Appellant is not a Convention refugee or a person in need of protection and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant states that she was sexually abused by her brother at age 12 and her father at age 14. Subsequently, she continued to suffer physical violence and threats to her life by both men. [4] The Appellant was approved for a visitor visa to enter Canada in January 2010. She arrived in Canada on XXXX XXXX, 2010. Her visitor's status expired on November 6, 2010 and she took no steps to extend it. [5] On XXXX XXXX, 2012, the Appellant submitted an application for permanent residence on the basis of spousal sponsorship. This application was refused in a decision dated XXXX XXXX, 2013. She later admitted that the common-law relationship that formed the basis of her claim had ended prior to submitting the sponsorship application. [6] The Appellant was called in for an interview to discuss her deportation on XXXX XXXX, 2013, where she learned about the ability to file a claim for refugee protection. She then filed the claim for refugee protection on December 6, 2013. The RPD rejected her claim on February 6, 2014. [7] The Appellant appealed the RPD decision to the RAD. The RAD dismissed the appeal on June 26, 2014. ROLE OF THE RAD [8] The RAD finds that 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". [9] 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 person in need of protection. The RAD will recognize and respect the conclusions of the RPD on such issues as credibility and/or where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [10] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) the Appellant lacked subjective fear and as a result, she did not have a well- founded fear of persecution and; (b) the Appellant has an Internal Flight Alternative (IFA) available in Montego Bay. Submissions [11] The Appellant submits that the RPD: (a) erred in its analysis of her subjective fear; and, (b) erred in its IFA analysis of Montego Bay. Admissibility of new evidence presented on appeal [12] The Appellant submits the following as new evidence: (a) The National Documentation Package (NDP) for Jamaica, dated January 31, 2014; (b) Affidavit of XXXX XXXX, sworn on XXXX XXXX, 2014; (c) Letter dated XXXX XXXX, 2014, from Appellant's mother, XXXX XXXX; (d) Letter from Deputy Clerk XXXX XXXX XXXX XXXX XXXX Jamaica, dated XXXX XXXX, 2014. [13] The RAD recognizes the statements made by the Federal Court in the Singh decision.2 The RAD will not strictly apply the Raza3 factors in considering the admissibility of the new evidence. The RAD will be flexible in assessing the new evidence and when appropriate will have some leeway in order to allow the Appellant to respond to deficiencies raised in the RPD decision. [14] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.4 (b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove. For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the probative value of the evidence. (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? If so, the RAD will proceed to assess probative value of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will consider the evidence and proceed to assess the probative value of the evidence. [15] The NDP for Jamaica is dated January 31, 2014. The NDP that was submitted at the RPD hearing is dated May 3, 2013. The hearing was held on February 6, 2014 and the new NDP was in existence at that time. However, it is not clear whether this new NDP was posted on the IRB website at the time of the hearing and in addition, it can be argued that the new NDP is capable of proving the current state of affairs in the country of feared persecution, namely, Jamaica. Therefore, the document is admitted in evidence. [16] The affidavit of the Appellant, sworn on April 1, 2014 gives consent to the Jamaican Constabulary Force and the XXXX XXXX Hospital to release reports to her mother. The affidavit was sworn after the RPD's decision and the requests could have been made before the decision. The Appellant could reasonably have been expected in the circumstances to have presented it prior to the decision being communicated. In addition, the affidavit does not respond to deficiencies raised in the RPD decision, since the Appellant's story was accepted by the RPD as credible. [17] The letter from the Deputy Clerk XXXX XXXX XXXX XXXX, Jamaica is dated XXXX XXXX, 2014. The incident outlined in the letter occurred on XXXX XXXX, 2008, when the Appellant's brother was charged for the offence of unlawfully wounding and thereupon, no order was made against him. The document refers to a matter which preceded the RPD hearing and there is no explanation why this document was not reasonably available at the time of the hearing. Again, the document does not respond to deficiencies raised in the RPD's decision, as the Appellant's narrative of abuse by her brother was accepted by the RPD. [18] The RPD found that the Appellant's testimony was "quite forthcoming and frank and direct and detailed" and accepted that she is a victim of incest, that she was in an abusive relationship with her brother and father which ended in XXXX 2009 and that her brother continued to make threats to her life. The RPD then went on to find that the Appellant lacked subjective fear. The RPD erred in finding the Appellant to be credible and yet, at the same time finding her to be lacking in subjective fear. [19] The RPD went on to find that the Appellant had a viable IFA in Montego Bay. The RPD correctly stated the two-pronged test for determining whether a viable IFA exists. However, the RPD did not take into consideration evidence that the Appellant would still be subjected to persecution in Montego Bay. The RAD agrees with the submission of the Appellant that there is evidence that Montego Bay remains the site of gang violence and shootings and the police were unable to patrol and protect most neighborhoods adequately. There is also documentary evidence that women and girls in inner-city communities were particularly exposed to gang violence. They were often victims of reprisal crimes, including sexual violence, for being perceived as having reported or actually reporting criminal activity to the police. Women and girls often experience sexual coercion by gang members.5 [20] The Appellant gave evidence that she had approached the police on numerous occasions because of violence against her by her father and brother. The police did not take any effective action as a result of her complaints. She testified that it was not just the police in her area that are unwilling to offer assistance. It is a situation island-wide. The authorities turn a blind eye to domestic violence especially because they think these things are personal. She went on to say that the police could be corrupted and so it is not necessarily guaranteed that she could rely on them for safety and for any form of protection. [21] The documentary evidence corroborates her statements. It states that social and cultural norms perpetuated violence against women; women frequently complain that police failed to treat domestic violence is a crime and take the necessary reports; legal protections for women were inadequately enforced, and violence and discrimination remain widespread; 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 required to enforce the law and bring perpetrators to justice; the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concluded that the "effectiveness of the enforcement mechanisms" to address domestic and gender-based violence "remains unclear"; and domestic violence is widespread in Jamaica. Serious concerns have been raised about the effectiveness of protection available to victims of domestic violence through the enforcement of legislative provisions and regarding the lack of access to shelter and assistance.6 [22] As the Appellant testified "Jamaica is fairly small. It-people-it's more of a community setting. People knowing that you are there, words get around. My brother, sorry, if needs be could easily find me. There's really no place to hide a run, it's a smaller place in Canada." [23] The RAD finds that it would be unreasonable in all the circumstances, including those particular to the Appellant, for the Appellant to seek refuge in Montego Bay. The RAD concludes that there is a serious possibility that the Appellant would be persecuted if she returned to Jamaica and therefore, she has a well-founded fear of persecution. DISPOSITION [24] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and substitutes its determination that the Appellant is a Convention refugee. The appeal is allowed. (signed) "Ken Atkinson" Ken Atkinson September 16, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Singh v. Canada (CIC), 2014 FC1022 3 Raza, Syed Masood v. M.C.I., (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 4 Ibid., para. 13.3(a). 5 Exhibit 5, National Documentation Package (NDP) for Jamaica (May 3, 2013), Item 1.4, Operational Guidance Note: Jamaica, December 2013. 6 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 02, 2015) RAD File No. / N° de dossier de la SAR : TB4-02600