TB4-04116

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 : TB4-04116 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 2, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dunstan Munro 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. The Appellant has not submitted any new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's decision and either substitute it with a positive determination or refer the matter back to the RPD for redetermination. 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 will face persecution in Jamaica at the hands of the People's National Party (PNP) Don and his gang, in their district of XXXX XXXX (Kingston). The Appellant also alleges that, as a result of him working as a migrant worker, the district where he resides (XXXX XXXX XXXX XXXX) was previously controlled by a Jamaica Labour Party Don, but, after the election of March 2012, a new Don, from the People's National Party, took over as a result of the win. The Appellant alleges that, in XXXX 2012, he was approached by members of the gang who instructed him to turn over his money from the migrant work program in Canada. The Appellant went into hiding until he left for Canada in XXXX 2013. The Appellant filed for refugee protection on January, 2014. [4] The Appellant's application for refugee protection was heard on April 01, 2014. In an oral decision rendered at the hearing and a written Notice of Decision dated April 24, 2014, the RPD rejected his claim. The panel cited inconsistencies in the Appellant's evidence, lack of subjective fear and that he had no nexus and what he feared was generalized risk under section 97, as a result, rejected his claim. [5] The Appellant submits on appeal that the RPD's decision is replete with errors of fact and law. They argue that the RPD erred in finding: a) that his fear was by reason of his perceived wealth and not political opinion; and b) erred in finding there was no nexus; and c) erred in finding that it was a generalized risk. Application for an Oral Hearing [6] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of IRPA. [7] 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 person who is the subject of the appeal. 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." [8] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellant, 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). [9] 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 evidence,1 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. [10] The RAD has not admitted any of the new evidence submitted by the Appellant in support of his appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. Analysis Role of the RAD [11] What is the role of the Refugee Appeal Division (RAD) in considering an appeal against a decision of the Refugee Protection Division (RPD)? The Appellant does not take a position on this issue; however, the Appellant does make a very confusing argument on the jurisdiction of the RAD, which is not really an issue. [12] While the Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [13] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [14] In Iyamuremye,2 the court found itself "...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law...." The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".3 [15] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.4 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or misassessed the facts to the point of making a "palpable and overriding error."5 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness, but then required the use of a higher standard. [16] In Malhotra,6 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [17] Most recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.7 It found that the RAD 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.8 [18] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RAD will be following the case of Huruglica when dealing with this Appeal. The RPD's Findings [19] Standard of proof - subjective fear: In the Appellant's submission, the RPD imposed an incorrect standard, requiring that he prove he would be persecuted instead of applying the proper test, which requires only a reasonable chance of persecution. [20] The test for whether a refugee claimant has a well-founded fear of persecution was set out by the Federal Court of Appeal in Adjei.9 While a claimant must establish his case, on a balance of probabilities, the likelihood of persecution is subject to a different test: whether there is a reasonable chance of persecution. This test can also be described as "good grounds," a "reasonable possibility," a "serious possibility," or "more than a mere possibility" of persecution. This test is applicable only to claims made under Section 96 of IRPA - where there is a nexus between the claim and a Convention ground. [21] The RPD considered the Appellant's claim under Section 97(1) of IRPA, finding that there was no link between their fear and the Convention grounds set out in Section 96. There is a different standard of proof to be applied to claims for protection under Section 97, as explained by the Federal Court: [I]t is important to distinguish between sections 96 and 97 of the IRPA. Although the onus is on a claimant to establish a claim under section 96, a serious possibility of persecution must be established, which involves a less stringent burden of proof than that of balance of probabilities. The fear of persecution must be subjective as well as objective. [22] Under section 97, the burden of proof is that of the standard of proof in civil cases, which is the balance of probabilities.10 However, an objective basis for the fear is sufficient. Subjective fear is immaterial.11 Despite the Appellant's allegations, it is clear what standard of proof the RPD applied. It did not require "proof that he would be persecuted," as the Appellant submits to the RAD, nor did it set out the test at all. While it would have been better if the RPD had done so, it was not required to discuss the chance of future persecution, as there was no credible evidence upon which to base the application of either test.12 It was the Appellant's lack of credibility, not the RPD's application of any test, which caused the refugee claim to fail. There is no reason for the RAD to conclude that the outcome of the claim would have been any different had the RPD specifically set out the correct test. [23] The RPD did not impose an incorrect standard of proof on the Appellant, nor did it err in failing to set out the Section 97 test. Generalized Risk [24] In assessing the evidence in its entirety, the RAD has arrived at the same conclusion as the RPD in that the risk feared by the Appellant is one generally faced by others and thus the Appellant does not meet the requirements of the Act and, therefore, has no nexus to the Convention as his risks are generally faced by other citizens in Jamaica. [25] The harm feared by the Appellant does not amount to persecution or to a personalized risk to his life or to a risk to cruel and unusual treatment or punishment or to a danger of torture. The courts have expressed the view that consideration of an application under section 97(1)(b)(ii) of the Act requires a personalized review in the context of the actual and potential risks to which the claimant is subject. In cases like this, where the general public is subject to the risk of crime, the fact that some individuals are more exposed to the risk because they live in more dangerous areas or because they are perceived as being wealthier, does not necessarily make them persons in need of protection. A person who is a direct victim of crime is not automatically a person in need of protection within the meaning of section 97 of the Act.13 Documentary evidence indicates that crime such as extortion is prevalent in Jamaica. [26] The RAD, in its assessment of the evidence, concurs with the findings of the RPD that the Appellant is a victim of extortion and that this crime is widespread in Jamaica and is not specific to the Appellant. [27] There was no persuasive evidence that the Appellant was targeted for any other reason than he was being extorted for being a migrant worker who works abroad, and this is supported by the Appellant's own viva voce evidence. The Refugee Protection Division does not have a specific legal mandate that extends its protection to persons such as this Appellant. I concur with the findings of the RPD and arrived at the same conclusion - that the Appellant's fear is a generalized one. The Court sees nothing in s. 97(1) (b) (ii) that requires the Board to interpret "generally" as applying to all citizens. The word "generally" is commonly used to mean "prevalent" or "widespread."14 [28] I have reviewed the jurisprudence relating to generalized risk, and in this connection, I considered the case of Vickram,15 a businessman of Indo-Guyanese origin, who was threatened, beaten and harassed repeatedly by a group of black bandits in Guyana, and was determined to have been victimized due to his profile of belonging to a wealthy business family. The Federal Court upheld the Board's determination that the risk faced by that claimant16 was criminal activity and was no greater than that faced by the population at large, and that the perception of wealth does not constitute a particularized risk under section 97. As well, in the case of Prophète,17 it was determined that the risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming victims of violence." The Board's determination in that case was upheld by both the Federal Court and the Federal Court of Appeal.18 In the case of Innocent,19 a small store operator in Haiti, who was victimized repeatedly by criminals, the Federal Court held that in cases where the general public is subject to the risk of crime, the fact that some individuals are more exposed to the risk because they are perceived as being wealthier, does not necessarily make them persons in need of protection. [29] In Rodriguez,20 the principal claimant and his brother, citizens of Guatemala, claimed protection because of fear of the Mara gang who were extorting them for money in connection with their grocery store. While their case is somewhat similar to the present case, I am of the view that if the risk to violence or injury or crime is a generalized risk faced by all citizens of Guatemala, the fact that a specific number of individuals may be targeted more frequently does not mean that they are not subject to a "generalized risk" of violence. The fact that they share the same risk as other persons similarly situated does not make their risk a "personalized risk" subject to protection under section 97. [30] The RAD arrived at the same conclusion as the RPD did, as there is no evidence before the RPD or RAD to support a claim that the Appellant is at risk because of his political opinion, or his perceived wealth, consequently, that, on a balance of probabilities, the risk with which the Appellant faced is generalized and one which is faced generally by the population of Jamaica. Based on the particular facts of this case, the RAD is not satisfied that the Appellant faced a particularized risk of harm in accordance with section 97 of the IRPA. The risk faced by the Appellant is generalized rather than personalized risk, which falls under the paragraph 97(1) (b) exception. [31] However, the RAD disagrees with the argument set out by the Appellants in regards to political opinion and perceived wealth by the gang in the district. While it might have been better if the RPD had avoided using the term "subjective fear" in the course of a Section 97 analysis, the RPD's reasoning is perfectly clear. The Appellant claims to fear for his life in Jamaica, and yet he delayed five months in departing. He alleged that he was at great risk in his country but, when they gained access to another country, he did not make a claim right away. In its "subjective fear" analysis, the RPD identified the contrast and inconsistency between the Appellant's allegations and his actions. He claimed to fear for his life but his behaviour suggested otherwise. This is a matter of credibility, which is appropriately considered in the context of both sections 96 and 97. [32] The Appellants argue on appeal that the male Appellant's explanation why he continued to return to Jamaica was reasonable.21 [33] The Federal Court has cautioned that the RPD "...must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu." Plausibility findings should only be made in the clearest of cases.22 [34] The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.23 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.24 [35] This was one of the clearest of cases. The Appellant allegedly was threatened and was in fear of his life, and he was told to move out of the district. In these circumstances, it is remarkable that he continued to live at the same address in the same district for months and move about in the open without any consequences. The Appellant was allegedly threatened with extortion after the local election, and no other threats or assaults were committed upon his person since XXXX 2012. The RAD concurs with the RPD's finding that this was implausible. [36] The Appellants argue to the RAD that it was unreasonable for the RPD to use this inconsistency as one of the basis to disbelieve their account of the entire incident. The RAD disagrees. The Appellant's refugee claim is largely based on this single incident, and it was reasonable for the RPD to make a negative credibility finding as a result of this significant inconsistency. The RPD considered this and other evidentiary problems before making an overall credibility finding, and this is supportable, and the RAD would have arrived at the same conclusion. [37] In the RAD's view, the Appellant could not provide consistent evidence about the single key allegation underlying his claim. He did not provide basic information about the alleged agent of persecution. He delayed in leaving the country of persecution, failed to make a refugee claim when he arrived in Canada on XXXX 2013, and did not advise immigration officials here of his alleged fear, and made a claim for protection in January, 2014, having waited since XXXX 2012 when he was allegedly threatened and extorted. [38] The RPD did not base its credibility findings on trivial or peripheral matters, but on evidentiary problems that went to the heart of the Appellant's refugee claim. A re-examination of the RPD's reasons reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD notes that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [39] Given the analysis above, the RAD therefore has deferred to the RPD findings on credibility in this claim and concurs with the findings of credibility and finds that the RPD findings were supportable. [40] As such, the RAD finds that the RPD did not err in its determination that the Appellant's allegations were not credible overall. The RAD has assessed the entirety of the evidence and I have determined that I would have arrived at the same conclusions as the RPD did in its decision regarding the credibility findings, the nexus, and political opinion and generalized risk. CONCLUSION [41] 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. [42] This Appeal is therefore dismissed. (signed) "Luis F. Agostinho' Luis F. Agostinho October 2, 2014 Date 1 Section 110(4) 2 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 3 Iyamuremye, para. 3. 4 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 5 Alvarez, para. 33. 6 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768 7 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799 8 Huruglica, para. 45. 9 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 7 Imm. L.R. (2d) 169 (C.A.) 10 Li v Canada (Minister of Citizenship and Immigration), 2005 CFA 1, [2005] FCJ No 1 (QL) and FH v McDougall, 2008 SCC 53, [2008] 3 SCR 41 11 Ghasemian v Canada (Minister of Citizenship and Immigration), 2003 FC 1266; Yang v Canada (Citizenship and Immigration), 2012 FC 849, [2012] FCJ No 961(QL)). 12 Kadiosha, Mbuyi v. M.C.I. (F.C.T.D., no. IMM-4985-99), Pinard, September 29, 2000 at paras. 7-9. 13 Innocent, Philomena v. M.C.I. (F.C. no. IMM-541-09), Mainville, October 8, 2009; 2009 FC 1019. 14 Osorio, Henry Mauricio Gil v. M.C.I. (F.C., no. IMM-585-05), Snider, October 27, 2005, 2005 FC 1459. 15 Vickram, Safraz v. M.C.I. (F.C., no. IMM-3632-06), de Montigny, April 30, 2007, 2007 FC 457. 16 Vickram, Safraz v. M.C.I. (F.C., no. IMM-3632-06), de Montigny, April 30, 2007, 2007 FC 457. 17 Prophète, Ralph v. M.C.I. (F.C., no. IMM-3077-07), Tremblay-Lamer, March 12, 2008, 2008 FC 331; Prophète, Ralph v. M.C.I. (F.C.A., no. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. 18 Prophète, Ralph v. M.C.I. (F.C., no. IMM-3077-07), Tremblay-Lamer, March 12, 2008, 2008 FC 331; Prophète, Ralph v. M.C.I. (F.C.A., no. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. 19 Innocent, Philomena v. M.C.I. (F.C. no. IMM-541-09), Mainville, October 8, 2009; 2009 FC 1019. 20 Perez, Henry Sotero Rodriguez v. M.C.I. (F.C., no. IMM-646-09), Kelen, October 14, 2009, 2009 FC 1029. 21 Appellant's Record, page 56, paragraph 62 22 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; 2001 FCT 776, 208 FTR 267, para. 7. 23 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 24 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04116