TB6-05895

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 : TB6-05895 TB6-05896 TB6-05897 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 XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 20, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Joseph S. Farkas Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX (the Principal Appellant) and her sons, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX (the Minor Appellants), collectively referred to as "the Appellants", appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. The Principal Appellant is the designated representative for the Minor Appellants. The Appellants have submitted new evidence in support of their appeal. They ask the Refugee Appeal Division (RAD) to find them to be Convention refugees or persons in need of protection. In the alternative, the Appellants ask the RAD to return the matter to the RPD for redetermination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Background [3] The Appellants alleged before the RPD that, upon return to Jamaica, they will be killed by the Principal Appellant's spouse (the father to the Minor Appellants) because he abused them in the past and threatened to kill the Principal Appellant. The claims for refugee protection were heard on April 8, 2016. By a decision of April 12, 2016, the RPD rejected the claims finding that the Appellants had failed to rebut the presumption of state protection and they have a viable internal flight alternative (IFA) in Montego Bay. [4] The Appellants submit that the RPD erred in finding that state protection was reasonably available to them, did not take into account the psychological expert opinion, and ignored contrary country condition information. They further submit that the RPD's IFA is not reasonable. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? [6] While the Appellants make no argument with respect the role of the RAD, the RAD notes that the Federal Court of Appeal, in Huruglica,1 indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.2 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It went on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.3 [7] Considering the recent jurisprudence, the RAD will conduct its own analysis of the record to determine whether, as submitted by the Appellants, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. In addition, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. Admissibility of evidence submitted on appeal [8] Subsection 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellants to make full and detailed submissions in their Memorandum of Argument about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to them.4 Assessment of evidence that meets the requirements of subsection 110(4) [9] Where a document meets the test in subsection 110(4) the RAD will conduct a further assessment of that evidence. In Singh,5 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza6 to the assessment of new evidence. While Raza predates the introduction of subsection 110(4) of the IRPA, it is based on nearly identical wording of subsection 113(a). In Raza, the Federal Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.7 In Singh, the Court found that 3 of the criteria from Raza are necessarily implied in the wording of subsection 110(4).8 The Federal Court of Appeal has also found materiality to be redundant, as it is also found in subsection 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.9 [10] In addition to credibility and relevance, the factors in Raza include newness and materiality. Newness is implicitly incorporated into subsection 110(4) and does not require additional analysis. [11] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in subsection 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of subsection 110(4), the RAD will assess its newness, credibility and relevance in order to determine whether it is admissible. [12] The Appellants tendered the following documents as proposed new evidence in support of their appeal. (a) Google Maps - Directions and Distance - Montego Bay, Jamaica to Jamaica, printed May 27, 2016;10 (b) United States Department of State - Jamaica - Country Reports on Human Rights Practices for 2015, dated April 13, 2016;11 (c) telegraph.co.uk article One Billion rising: Domestic violence is a middle class problem too, dated February 14, 2013;12 (d) Court Appointed Special Advocates for Children report Children of Domestic Violence: Risk and Remedies, dated July 2001;13 (e) gcadv.org Myths and Facts (undated);14 and (f) Sudbury - Wayland - Lincoln Domestic Violence Roundtable (undated).15 Item (a) [13] The Appellants note that the Google Maps printout shows the distance between Montego Bay to Jamaica and vice versa. They submit that the document is relevant because the RPD suggested Montego Bay as an IFA. [14] The Appellants fail to explain how item (a) meets the requirements of subsection 110(4). Nonetheless, the issue of IFA was raised at the hearing and Montego Bay was suggested as a possible IFA. The RPD indicated at the conclusion of the hearing that IFA remained an issue. Since Montego Bay was suggested as a possible IFA at the hearing, the Appellant could reasonably have been expected in the circumstances to have presented the Google Maps printout prior to the rejection of their claims. The Appellants fail to indicate why they could not have provided the printout to the RPD post hearing, prior to the rejection of their claims. The information did no arise after the rejection of the claims and was reasonably available prior to the rejection. Since it does not meet the statutory requirements of 110(4), it will not be accepted as new evidence in this appeal. [15] Even if the printout met the requirements of 110(4), the information in the printout is not relevant to the Appellants' claims. The Appellants submit that Montego Bay is a 125 kilometre drive and approximately 2 hours and 39 minutes away.16 The Google Map printout they provided shows the distance and travel time between Montego Bay, Jamaica and Jamaica. However, the Appellants resided in Browns Town, St. Ann, Jamaica. If the Google Maps printout was intended to show the distance between the Appellants residence in Jamaica and Montego Bay, it fails to do so. The location of Jamaica on the Google Maps printout is nowhere near Browns Town, St. Ann. Therefore, the distance and travel time indicated in the printout has no value in establishing the distance between the location where the Appellants resided in Jamaica and the suggested IFA, Montego Bay. Item (b) [16] The Appellants point out that the United States Department of State - Jamaica - Country Reports on Human Rights Practices for 2015 was released on April 13, 2016. They note that this report has updated and relevant information about domestic abuse in Jamaica. [17] It is clear that item (b) was issued on April 13, 2016. Therefore it meets the statutory requirements of 110(4) as it arose after the Appellants claims were rejected on April 12, 2016. Also, it is credible information from a reputable source. The information contained in the report, particularly the information regarding domestic abuse, is recent and relevant to the Appellants' claims for protection. Since item (b) meets the statutory requirements of 110(4), and the credibility and relevancy considerations as per Singh and Raza, it will be accepted as new evidence in this appeal. Item (c) [18] The Appellants maintain that item (c) is relevant because it provides information that domestic abuse is not exclusive to a particular socio-economic group. [19] Although the Appellants explain the relevancy of item (c), they fail to explain how it meets the requirements of subsection 110(4). Item (c) is dated February 14, 2013, more than three years before the Appellants claims were rejected. It deals with domestic abuse, the central issue in the Appellants' claims for refugee protection. The Appellants have failed to establish that item (c) arose after the rejection of their claims, or that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. Since it does not meet the statutory requirements of 110(4), it will not be accepted as new evidence in this appeal. Item (d) [20] The Appellants note that item (d) provides specific information regarding domestic violence particularly in relation to child abuse and male children. They maintain that there is no information regarding the risk to children posed by domestic violence and strategies for intervention to protect children from violent homes and their battered parents in the Board's National Documentation Packages on Jamaica dated February 29, 2016 and May 13, 2016. [21] While the Appellants explain the relevancy of item (d), they neglect to explain how it meets the requirements of subsection 110(4). Item (d) is dated July 2001, approximately 15 years before the Appellants claims were rejected. It deals the issue of domestic violence in relation to children, the central issue in the Appellants' claims for refugee protection. The Appellants have failed to establish that item (d) arose after the rejection of their claims, or that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. Since it fails to meet the test for new evidence, it will not be accepted in this appeal. Item (e) [22] The Appellants note that item (e) is from gcadv.org, a website that provides general information regarding domestic violence. They note that the information in item (e) is relevant because it speaks about domestic violence and children; specifically, men who witness their fathers abuse their mothers. [23] It is important to note that the Appellants fail to explain how item (e) meets the requirements of subsection 110(4). Item (e) is undated; however dates contained in this item suggest that it was compiled in or about 2011. The latest information stems from 2010. As pointed out by the Appellants, it provides general information regarding domestic violence, the central issue in the Appellants' claims for refugee protection. The Appellants have failed to establish that item (e) arose after the rejection of their claims, or that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. Since it fails to meet the test for new evidence, it will not be accepted in this appeal. Item (f) [24] Item (f) is a document regarding domestic abuse. The Appellants note that it is relevant to their appeal as it provides a list of the warning signs of abuse. [25] There is no mention in the Appellant's record with respect item (f) meeting the requirements of subsection 110(4). Item (f) is undated; however there is an indication that it was copyrighted in 2008. It is general information regarding domestic abuse, the central issue in the Appellants' claims for refugee protection. The Appellants have failed to establish that item (f) arose after the rejection of their claims, or that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. Since it fails to meet the test for new evidence, it will not be accepted in this appeal. Request for an oral hearing [26] The Appellants indicate that they request a hearing be held under subsection 110(6) of the IRPA.17 However, they also indicate that they are not requesting a hearing under subsection 110(6) of the IRPA, as there is no serious issue with respect to their credibility.18 [27] The RAD notes that item (b) has been accepted as new evidence in this appeal. However, the new evidence does not raise a serious issue with respect to the credibility of the Appellants. Since it does not meet the statutory requirements of subsection 110(6), the RAD must not hold a hearing in an appeal such as this. MERITS OF THE APPEAL [28] After a review of the record, the RAD finds that, notwithstanding the findings of the RPD on the issue of IFA and allegations of errors in those findings by the Appellants, there is sufficient evidence before the RAD to support the RPD's findings on the determinative issue of state protection. Because the RAD is able to fairly dispose of this appeal by making a decision on state protection, it is unnecessary to address the other issues raised by the Appellants. [29] The RPD found that the Jamaican government is providing adequate and effective state protection for its citizens. It also found that the Appellants failed to rebut the presumption of state protection with clear and convincing evidence; and have failed to demonstrate that it would have been objectively unreasonable for the Principal Appellant to continue to pursue the state for such protection. [30] The Appellants maintain that country condition documentation speaks of high levels of domestic abuse and rather horrendously inadequate responses where state protection is sought and the RPD ignored this evidence. They submit that when the police and government refuse to enforce the law, there is a breakdown in state protection and the RPD refused to consider this when determining their claims. The Appellants refer to the decision of the Supreme Court in Ward,19 and the decisions of the Federal Court in Elcock,20 Molnar21 and Jones,22 and submit that the RPD took the wrong approach to determining state protection by focusing on the government's "serious efforts" to address domestic violence rather than on "effective state protection". Further, the Appellants maintain that the RPD made an error of law when it did not take into account the psychological expert opinion. State protection [31] Following a review of the evidence in the record, including the recording of the Appellants' hearing, the RAD finds that the RPD did not err in its state protection analysis. It analysed and assessed the evidence and made well-reasoned findings. It gave adequate regard to the evidence in the record, considered the jurisprudence, and considered the Principal Appellant's profile as a well-educated and independent woman. It considered the Minor Appellants' profiles as children of a woman with the Principal Appellant's profile. It considered the contradictory evidence. The RAD has read all the materials and reviewed the evidence. [32] The RAD acknowledges, as did the RPD, that violence against women is a serious, widespread problem in Jamaica. The United States Department of State indicated in its annual report that violence against women continued to be a severe problem in Jamaica and child abuse was substantial and widespread. Also indicated in the report is that NGOs expressed concern that resources were insufficient for police investigations of gender-based violence and for counseling and shelter for victims; and NGOs reported that the criminal justice system failed to hold perpetrators of violence against women and children accountable with the necessary urgency and seriousness.23 The same report indicates that civilian authorities maintained effective control over the Jamaica Constabulary Force (JCF) and Jamaica Defense Force (JDF); and the government has increasingly effective mechanisms to investigate and punish abuse and corruption in general.24 The JCF Centre for Investigation of Sexual Offences and Child Abuse (CISOCA) comprised a multidisciplinary team, which included police officers, social workers, and counselors from the Victim Support Unit, that handled sex crimes and offered integrated services, including providing legal information.25 [33] It is important to note that while many of the documents on Jamaica such as the one referenced above contain information about the problem of domestic and gender based violence in Jamaica, there is also information about the steps Jamaica is taking or has taken to curb domestic and gender-based violence. For instance, it is indicated in a Response to Information Request (RIR) that, in June 2013, the UN Economic, Social, and Cultural Rights Committee expressed its profound concern at high rates of domestic and sexual violence in Jamaica. The government of Jamaica itself stated that there was an unacceptable high level of violence against women and children. Also indicated in the RIR is that the Bureau of Women's Affairs submitted to Parliament a draft National Plan of Action on Violence against Women and Gender-Based Violence that aims to provide a comprehensive strategy guiding the government's response to the problem and began implementing some of the strategies while awaiting its approval.26 The RAD finds that the actions of the government in Jamaica to implement measures to curb domestic and gender-based violence reinforce the presumption of state protection in Jamaica, a constitutional parliamentary democracy. [34] It was not necessary for the RPD to quote or refer to all the contradictory information or the documents the Appellants maintain contain contradictory information. The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.27 However, where there is evidence which is contrary to its decision, the RPD must analyze that evidence and provide reasons why it does not consider it relevant or trustworthy, or why it chose to disregard it.28 It is clear that there are problems in Jamaica. Some of that information is noted above. Some is also noted in the RPD's reasons. There is no need to reiterate all the information or opinions regarding the problems in Jamaica. What is important in an analysis of the adequacy of state protection is to look at what the state has done, what it is doing and what it plans to do in addressing problems associated with protecting its citizens. Evidence of effectiveness is required. [35] Documentary evidence indicates that a number of legislative provisions have been implemented to ensure that the rights of women are given adequate protection. The Domestic Violence (Amendment) Act of 2004 provides for men and women who have been victims of domestic violence to apply for the protection of the courts. This Act broadened the categories of women protected to include not just married women, but also women in common-law and visiting relationships. The Sexual Offences Act, which was passed in 2009, repeals the Incest (Punishment) Act and certain aspects of the Offences Against the Person Act and creates new provisions for the prosecution of rape and other sexual offences, including marital rape, anonymity of complainant in rape and other sexual offences, as well as incest. In addition to the legislative measures, the Government, through the Bureau of Women's Affairs which is the main state agency responsible for gender issues, has implemented projects aimed at addressing gender-based violence and sexual harassment.29 [36] Further documentary evidence indicates that Jamaica has been attempting to reform its police force. According to the Ministry of National Security, in December 2008, Jamaica began developing the National Crime Prevention and Community Safety Strategy (NCPCSS), a ten-year plan to reduce crime and violence, which involved input from multiple government ministries, including the Ministry of Education, Ministry of Justice, the Planning Institute of Jamaica, the Jamaica Social Investment Fund, the Social Development Commission, and the JCF's Community Safety and Security Branch (CSSB), as well as from over 50 consultations with stakeholders, including public and private bodies, NGOs and residents. The plan includes several international development partner-funded "social-intervention programs" and "socially-centred" programs operated by the JCF. Also, 2014 sources indicate that Jamaica has seen a reduction in violent crime.30 This evidence suggests that Jamaica has taken severe steps to curb crime and violence, including domestic and gender-based violence, and the measures implemented are proving to be effective. [37] The above is indicative of a level of democracy in Jamaica that provides for the protection of all its citizens. The RAD finds that the measures Jamaica has taken in the recent past increase the presumption of state protection for the Appellants. The Federal Court in Mudrak held that extensive and substantial legislation and other measures being undertaken should be treated as evidence supporting the democratic foundations of the country, thereby enhancing the presumption of adequate state protection as opposed to requiring the Board to demonstrate operational adequacy.31 It further stated that it is incorrect to impose on a government an obligation to demonstrate the "operational adequacy" of its recently instituted protection measures. This threshold is, realistically, not subject to proof, even if the legislation is having a positive effect. 32 [38] The Appellants' personal circumstances are analysed below. Furthermore, the analysis below shows that the Principal Appellant made almost no efforts to pursue state protection in Jamaica. Appellants' personal circumstances [39] The Principal Appellant testified that she decided to leave Jamaica on January 20, 2016, the day there was an incident with her spouse. She indicated that on January 20, 2016, she was arguing with her spouse and he became further upset after she told her sister over the phone what was happening. The Principal Appellant's spouse then smashed a number of items in the home and the Principal Appellant ran from the home to a neighbour. The Principal Appellant's husband then went to their car and drove it into the neighbour's wall. He threatened to kill the Principal Appellant after he exited the vehicle. Police were called and, after they arrived, they accompanied the Principal Appellant to her house so that she could get her handbag and show the officers the damage her spouse had caused. Police looked at the vehicle that had smashed into the wall and instructed the Principal Appellant to go to the police station to file a report, which she did. A police officer asked the Principal Appellant if she wanted to press charges against her spouse. The Principal Appellant testified that she did not press any charges against her spouse because the police officer explained that she would have to be around to go to court and she told him she did not want to hang around. The Principal Appellant returned to her house on January 22, 2016, escorted by police officers, to obtain clothes for herself and her children. She departed Jamaica to Canada on XXXX XXXX, 2016. [40] The RAD finds it unreasonable that the Principal Appellant did not press charges against her spouse after police asked her if she wanted to. Police responded to the Principal Appellant's request for assistance on January 20, 2016. They accompanied the Principal Appellant to her house so that she could show them the damage her spouse caused and to obtain a personal item. Police advised the Principal Appellant to file a report, which she did. They asked her if she wanted to press charges against her husband, which she refused. After filing the report with police, the police officer went to get the Minor Appellants at their respective schools.33 On January 22, 2016, the Appellant returned to the police station in order to get an escort to her house to obtain further personal items. She testified that police accommodated her request since they were aware of her situation and her report to police two days earlier. The RAD finds that the police responded appropriately to the Principal Appellant's requests for assistance between January 20, 2016 and January 22, 2016. It is also suggestive of the protection police were willing and able to provide the Appellants after January 22, 2016. Their appropriate responses to the Principal Appellant's requests between January 20, 2016 and January 22, 2016 suggest they would provide appropriate responses to her requests after January 22, 2016. They even asked her if she wanted to file charges against her spouse, to further her pursuit of protection. Considering the police responses to the Principal Appellant's request for assistance and her alleged fear of her spouse, it would be reasonable to expect her to pursue charges against her spouse. The Principal Appellant's assertion that she could not rely on police is without merit considering their appropriate actions in response to her requests for assistance. [41] The RAD finds that the Principal Appellant's decision to seek international protection in Canada rather than pursue protection in her home country is unreasonable. The protection she received from authorities in Jamaica between January 20, 2016 and January 22, 2016 suggests that it would be reasonably forthcoming should she pursue it further. 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.34 The evidence in this case suggests that the Appellants had, and have, recourse available to them in Jamaica. [42] The RAD considered the Appellants' psychological report.35 It is important to note that the RPD considered the psychological report at the hearing in terms of providing the Principal Appellant with accommodations sensitive to her needs. The psychological report appears to have assisted the RPD in conducting the hearing in an appropriately sensitive manner. The RAD accepts that the Principal Appellant is afflicted by Major Depression and Posttraumatic Stress Disorder, and that the older Minor Appellant showed a concerning level of despondency, as opined in the psychological report. However, should the Appellants return to Jamaica, treatment for their psychological disorders, or despondency, would be available to them. The psychologist recommends that the Appellants receive counseling.36 Documentary evidence indicates that the Ministry of National Security's Victims Support Unit, Dispute Resolution Foundation, Peace Centers, and Women's Centres as well as various faith-based institutions offered counseling countrywide.37 [43] The RAD finds that the Appellants failed to take all the reasonable steps in the circumstances to seek state protection in Jamaica prior to seeking international protection in Canada. Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the refugee claimant to approach the state for protection in situations where state protection might be reasonably forthcoming.38 The evidence noted above indicates that state protection for the Appellants would have been reasonably forthcoming. In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.39 This is so even where the protective services of the state have gaps or deficiencies.40 The RAD finds that the Principal Appellant's explanations for failing to pursue state protection in Jamaica are not reasonable. Her assertion that she could not rely on police is without merit. Her refusal to not press charges against her husband because she did not want to hang around to attend court does not absolve her from pursuing state protection in Jamaica. The evidence regarding the police response to the Principal Appellant's requests for assistance reflect a country intent on protecting its citizens. Although there is evidence of high levels of crime in Jamaica, including crimes involving domestic and gender-based violence, some of which is noted above, the evidence indicates that the government has taken legitimate action to curb crime and violence. [44] There is no indication in the documents that corruption in the security forces is systemic. Documentary evidence indicates that civilian authorities maintained effective control over the security forces and the government has increasingly effective mechanisms to investigate and punish abuse and corruption in general.41 This evidence suggests that there are effective mechanisms in place to investigate and punish police officers accused of abuse, corruption or neglect and punish those found to be culpable of abuse, corruption or neglect. [45] The RAD finds that the Appellants have failed to rebut the presumption of state protection with clear and convincing evidence. The RPD was not wrong to make this finding. Quite telling is a United Nations Report on Jamaica indicating that the government remained determined to reduce crime and violence, including through an increased emphasis on social interventions, community programmes and more effective policing. Also indicated is that the Jamaica Constabulary Force had acquired new equipment and technology, established additional posts and increased recruitment, and Jamaica had registered a marked downward trend in serious crimes over the previous five years.42 In the report, many member nations commend Jamaica for their efforts in such areas as human rights and law enforcement. For instance Mexico noted the progress made since the last review and commended Jamaica on the changes in the legal framework, in particular the adoption of initiatives to eliminate gender violence.43 Furthermore, the Appellants' own evidence regarding the appropriate police response to the Principal Appellant's requests for assistance reinforces the finding of adequacy in the protection offered by Jamaica. [46] The Appellants' arguments with respect to the RPD's analysis of the evidence and the adequacy of state protection in Jamaica fail for the reasons outlined above. Furthermore, it is not sufficient to rely solely on documentary evidence listing certain flaws or weaknesses in the country's justice system.44 The RAD notes the following statement by the Federal Court in Mudrak. I respectfully think it is also incorrect to, in effect, reverse the presumption of adequate state protection in a democratic society when a country enacts legislation, or when there is evidence of increasing acts of violence, thereby requiring the Board to demonstrate the operational adequacy of measures taken to prevent incidents of persecution in its reasons. [47] In the circumstances of this case, having considered the totality of the evidence, including the recording of the RPD hearing, the RAD finds that the Appellants have failed to rebut the presumption of state protection with clear and convincing evidence. Therefore, the RAD is not persuaded that the state of Jamaica would not be reasonably forthcoming with adequate protection for the Appellants should they seek it. CONCLUSION [48] After reviewing the record the RAD has reached the same conclusion as the RPD. The RAD concurs with the RPD that the Appellants have failed to rebut the presumption of state protection. The RAD finds that the Appellants have adequate state protection available to them in Jamaica. The RAD finds that the Appellants are neither Convention refugees nor persons in need of protection. Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella July 20, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 3 M.C.I. v. Huruglica, para. 103. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 M.C.I. v. Singh, Parminder (F.C.A., No. A-512-14), Nadon, Gauthier, De Montigny, March 29, 2016; 2016 FCA 96. (F.C., No. IMM-6711-13), Gagné, October 28, 2014; 2014 FC 1022. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 7 Raza, 2007 FCA 385, paras. 13-15. 8 M.C.I. v. Singh, Parminder, 2016 FCA 96, para. 64. 9 Singh, 2016 FCA 96, para. 48. 10 Exhibit P-2, Appellants' Record, at pp. 19-34. 11 Exhibit P-2, Appellants' Record, at p. 25. 12 Exhibit P-2, Appellants' Record, at pp. 26-43. 13 Exhibit P-2, Appellants' Record, at pp. 44-47. 14 Exhibit P-2, Appellants' Record, at pp. 48-53. 15 Exhibit P-2, Appellants' Record, at pp. 54-57. 16 Exhibit P-2, Appellants' Record, at p. 69, para. 28. 17 Exhibit P-2, Appellants' Record, a p. 13. 18 Exhibit P-2, Appellants' Record, a p. 13. 19 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 20 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999. 21 Molnar, Elek v. M.C.I. (F.C.T.D., no. IMM-285-02), Tremblay-Lamer, October 16, 2002. Reported: Molnar v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.). 22Jones, Shurlyn Cathy Ann v. M.C.I. (F.C., no. IMM-1877-05), Snider, April 10, 2006, 2006 FC 405. 23 Exhibit P-2, Appellants' Record, at pp. 35, 36. 24 Exhibit P-2, Appellants' Record, at p. 29. 25 Exhibit P-2, Appellants' Record, at p. 35. 26 Exhibit P-2, Appellants' Record, at pp. 200, 201. 27 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 28 Nasufi v. Canada (Citizenship and Immigration) 2011 FC 586; Khan v Canada (Minister of Citizenship and Immigration), 2003 FC 1076; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425. 29 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package (NDP), Jamaica, 29 February 2016, item 1.7 at p. 9. 30 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package (NDP), Jamaica, 29 February 2016, item 10.1, at pp. 4, 5. 31 Mudrak, Zsolt Jozsef v. M.C.I. (F.C., no. IMM-3582-13), Annis, February 16, 2015; 2015 FC 188, para. 56. 32 Mudrak, 2015 FC 188, para. 57. 33 Exhibit RPD-1, RPD's Record, at p. 103. 34 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at 709. 35 Exhibit RPD-1, RPD's Record, at pp. 281-287. 36 Exhibit RPD-1, RPD's Record, at p. 287. 37 Exhibit P-2, Appellants' Record, at p. 35. 38 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 39 Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830. 40 Salazar Santos, Marco Antonio v. M.C.I. (F.C., no. IMM-4602-06), Barnes, July 30, 2007; 2007 FC 793. 41 Exhibit P-2, Appellants' Record, at p. 29. 42 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package (NDP), Jamaica, 29 February 2016, item 2.8, at p. 4. 43 Exhibit RPD-1, RPD's Record, at pp. 171-189, National Documentation Package (NDP), Jamaica, 29 February 2016, item 2.8, at p. 9. 44 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05895 TB6-05896 TB6-05897