TC0-09966

RAD File / Dossier de la SAR : TC0-09966 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 30, 2021 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the person who is the subject of the appeal Zohra Safi Conseil de la|des personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Jamaica. She appeals a decision of the Refugee Protection Division (RPD) dated July 9, 2020, rejecting her claim. These are my reasons for allowing her appeal. [2] The Appellant is a Jamaican woman who is a victim of domestic violence. She was subjected to sexual and domestic violence from an early age in Jamaica. She was molested by a pastor, had a teenage boyfriend who abused her and another partner who also abused her. In 2012, the Appellant arranged to travel to Trinidad and Tobago in order to find work. She met her estranged husband, C.H.1, a citizen of Trinidad and Tobago, and moved in with him. After they were married in 2015, C.H. became abusive - verbally, physically and sexually. In XXXX 2018, the Appellant fled Trinidad and Tobago and returned to Jamaica on the pretext of arranging for a visa to the United States of America (U.S.A.) to attend one of her daughter's graduation. The Appellant fled to Canada on XXXX XXXX, 2018 and made a refugee claim in December 2018. [3] The RPD found that the Appellant was a victim of domestic violence in Jamaica and also in Trinidad and Tobago at the hands of C.H. However, the RPD went on to find that the Appellant would not be at risk throughout Jamaica and concluded that the Appellant had a viable internal flight alternative (IFA) in the parishes of Hanover and Westmoreland. [4] The Appellant argues the RPD erred in its consideration of inconsistencies that are peripheral to her claim; failed to consider the Appellant's mental health when assessing her testimony, and failed to property assess the viability of an IFA, considering the circumstances of the Appellant. [5] I have carried out an independent assessment of the RPD decision on a standard of correctness.2 Given the nature of this claim and in line with the Gender Guidelines,3 I have taken into account the Appellant's particular circumstances and the social and cultural context she comes from, as well as the sensitive nature of her claim. I find the RPD erred in its assessment of her credibility and the viability of an IFA. I find there is sufficient evidence to establish that the Appellant faces a serious possibility of persecution, on the basis of her membership in a particular social group, namely a woman survivor of domestic violence if she is returned to Jamaica. ANALYSIS Credibility of the Appellant The Appellant was a victim of domestic violence in Jamaica and in Trinidad and Tobago [6] I agree with the RPD that the Appellant had a difficult upbringing, was molested as a child and was in abusive relationships in Jamaica. I also agree with the RPD that the Appellant has established that she was physically, sexually and verbally abused by C.H.in Trinidad and Tobago. The Appellant was credible in her testimony on the profile of C.H. and his reach into Jamaica [7] The RPD found the Appellant to be vague regarding her description of C.H.'s profile as a member of a human trafficking ring. At the same time, the RPD found she was "spontaneously manufacturing a story" when asked about the human trafficking ring.4 I agree with the Appellant that the RPD's findings regarding the Appellant's testimony on this issue are problematic. [8] In her Basis of Claim (BOC) narrative, the Appellant stated that C.H. "is part of a criminal organization bringing girls from Jamaica, Venezuela and other countries to Trinidad to become prostitutes, and so has criminal contacts in Jamaica."5 She also indicated that she was introduced to many of his police friends.6 In her BOC narrative amendment filed a few days before the RPD hearing, the Appellant claimed that C.H. would pick her up from work on Thursdays, Fridays and sometimes Saturdays, and stop at a brothel on the way home. She indicated that people in the brothel would come out, give him money and ask when the next shipment would be coming. One time, she overheard a man from the brothel say that C.H. had promised ten girls and they only got five.7 [9] In coming to its conclusion that the Appellant was vague or had embellished her testimony, I find the RPD made a number of errors. [10] First, the RPD seems to have made a negative inference because the Appellant indicated on her Canadian visa application that her husband was a business owner, but on her marriage certificate the husband is listed as a "XXXX."8 I find the fact that the Appellant indicated in one form that C.H. was a businessman, and that the marriage certificate lists him as a XXXX are different, but not necessarily inconsistent. When asked about this difference, the Appellant said that C.H. is a barber in Trinidad and Tobago and owns his shop. As a result, I find the RPD erred in drawing a negative inference as both "businessman" and "XXXX" can be considered reasonable explanations for his job. I draw no negative inference from this. [11] Second, the RPD found the Appellant unable to provide much detail on C.H.'s involvement in the trafficking ring. I note that the Appellant was not clear on when she found out about the trafficking ring and was unable to say whether C.H. was a ringleader in the organization. However, I have listened to the audio recording of the RPD hearing, and I have considered the psychotherapist report9 submitted by the Appellant which indicates that she suffers from an XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX (XXXX) and she is vulnerable. It further indicates that she may have challenges in recalling memories associated with the violence she was subjected to in Jamaica and Trinidad and Tobago. [12] In considering the psychotherapist report and the Gender Guidelines, I find the Appellant's testimony was, in general, credible in relation to C.H.'s profile. I find her testimony was consistent with her BOC narrative and the amendment made to the BOC a few days before the RPD hearing. When the Appellant swore to the truth of her allegations, there is a presumption that her allegations are true unless there is reason to doubt their truthfulness.10 [13] In addition, I find it reasonable and not surprising that the Appellant was not able to provide much detail on the extent of C.H.'s involvement in the trafficking ring. This is because, taking into account the abusive nature of their relationship, and the reality that Caribbean societies generally remain patriarchal, I find it reasonable that C.H. may not have told his wife much about his legal and, and particularly would not tell her much about his illegal activities.11 [14] Furthermore, I find the RPD was wrong to conclude that it was implausible that C.H. would have conversations with members of the criminal gang that related to the trafficking of women while the Appellant was sitting in the car.12 As stated by the Federal Court: ... plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal 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.13 Considering that C.H. is a member of a criminal organization that revolves around the exploitation of women who are essentially held captive, I find it plausible that C.H. may simply not have been concerned about whether the Appellant, who he was abusing, overheard some of his conversations with members of a criminal gang. [15] I find the Appellant has provided sufficient credible evidence to establish, on a balance of probabilities, that C.H. is a member of a human trafficking ring that operates in Trinidad and Tobago and that he has contact with criminals and also with the police in Jamaica. As a result, I find the Appellant has established a well-founded fear of persecution on the grounds of her membership in a social group, namely a woman survivor of domestic violence, if she is returned to Jamaica. Motivation to come to Canada and delay in filing claim [16] The RPD was not satisfied that the Appellant feared C.H. because her motivation to come to Canada was to visit her son and sister.14 [17] I find the RPD erred. I have found the Appellant's allegation that she is a victim of domestic violence at the hands of C.H. is credible and that she fears him. She left Trinidad and Tobago and returned to Jamaica because of her fear. C.H. sent men to look for her at her friend's house in Jamaica and she decided to come to Canada. That she was motivated to come to Canada because her son and sister live here does not lead to me to conclude that she did not leave Jamaica because she feared C.H. The two motivations are not mutually exclusive and can co-exist. [18] As to why she delayed in filing her claim, the Appellant said she did not know about the refugee process when she arrived in Canada, and only found out after doing some research. I find this to be a reasonable explanation. I find the delay in filing her claim does not lead me to conclude that she lacks subjective fear. Internal Flight Alternative [19] The RPD concluded that the Appellant had a viable IFA in Hanover and Westmoreland. Considering the particular circumstances of the Appellant and taking into account the psychotherapist report and the Gender Guidelines, I find the RPD erred in concluding that a relocation to another part of Jamaica would be viable. [20] An IFA is available where the Board is satisfied on a balance of probabilities that there is no serious possibility of the Appellant being persecuted in the IFA and that it would not be objectively unreasonable, in all the circumstances, for the Appellant to seek refuge there.15 [21] I find the proposed IFA locations are neither safe nor reasonable for the Appellant. [22] I find there is sufficient credible evidence to establish, on a balance of probabilities, that C.H. has connections with criminal elements and with the police in Jamaica. The Appellant testified that he had such connections, and I find no reason to doubt her credibility on this. The Appellant also testified that three men came looking for her at the request of C.H. and that he always said that there was nowhere in Jamaica that she could hide as he would find her. She declared that it is not hard to find people in Jamaica, because Jamaica is small, and that as the criminal gang includes police officers in Jamaica, C.H. would be able to find her. [23] I note that C.H. is aware that the Appellant is from XXXX XXXX XXXX and is aware that she stayed at a friend's house in XXXX XXXX when she fled Trinidad and Tobago. This was corroborated by a letter from the friend who she had been staying with.16 After my own independent assessment, I find that C.H. could locate the Appellant either through gang members, through the police, or by contacting her friend in XXXX. As a result, the Appellant could face a serious possibility of persecution at the hands of C.H. in the proposed IFA locations. [24] I also consider that internal relocation is not objectively reasonable for the Appellant, taking into account her particular circumstances. The Appellant would return to Jamaica as a 41-year-old woman who has suffered sexual and gender-based violence since the age of nine. She testified that she has been subjected to gender violence by four different men. According to the psychotherapist report, she suffers from XXXX. [25] Factors affecting the reasonableness of an IFA may include access to employment, education, healthcare, social services, and housing, but most importantly, the reasonableness of an IFA is focused on the particular circumstances of the Appellant. [26] When asked about finding accommodation, the Appellant said she did not know where she would stay in either of the proposed IFA locations. She has never signed a lease in Jamaica and always lived with her mother, who is now deceased. She indicated that she did not know what was involved in renting a place. This does not bode well for a successful relocation. [27] In terms of employment, the Appellant's limited work experience does not bode well for her to be able to find a decent job. [28] The Appellant testified that she has no family in Jamaica that she is close to, and she does not have a community in the proposed IFA locations. She has two daughters in the U.S.A. and a son in Canada. [29] In addition, she has significant mental health issues from a long history of domestic abuse. I find, on a balance of probabilities, given the circumstances of the Appellant and the lack of any social or community network that could help her start a new life in one of the proposed IFA locations, it is not objectively reasonable for her to relocate. State protection [30] There is a presumption that the state is capable of protecting its citizens, except in cases where it is in a complete state of breakdown. To rebut this presumption, a claimant must persuade the Board with clear and convincing evidence that establishes on a balance of probabilities that state protection is inadequate.17 The onus is on the Appellant to establish that protection is inadequate. In my assessment of whether the presumption of state protection has been rebutted, I must take a contextual approach, considering factors such as the specific risk alleged, the identity of the persecutor, the Appellant's personal situation, her efforts to seek protection, the response of the authorities, and the country conditions. [31] Given the particular circumstances in this case, I find that if she were returned to Jamaica, the Appellant would not be in a position to rely on state protection in the event that C.H. located her. [32] The Appellant testified that C.H. had contacts with the Jamaican police. In addition, she said she went to the police who told her it was not a Jamaican issue. They said it was a Trinidad and Tobago problem. [33] While efforts are being made to combat domestic violence, there continue to be high rates of domestic and sexual abuse against women in Jamaica. Women are reluctant to report such violence to the police. In accordance with the IRB's Policy on National Documentation Packages in Refugee Determination Proceedings,18 I have considered the most recent NDP for Jamaica, which states that while legislation has been enacted to target domestic violence and sexual assault, these legal protections are often poorly enforced.19 The United Nations Economic, Social and Cultural Rights Committee has expressed "profound concern" at the Jamaican government's "lack of a comprehensive strategy" targeting domestic and sexual violence20 and non-governmental organizations report that while domestic abuse training programs have been implemented, the police have often failed to treat violence against women as a crime or to take the necessary reports from victims.21 [34] I find these reports are consistent with the Appellant's attempt to seek protection and find, on a balance of probabilities, she would not benefit from state protection. DECISION [35] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, I substitute my own decision that the Appellant is a Convention refugee. (signed) Madeleine Schwarz Madeleine Schwarz April 30, 2021 Date 1 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 3 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. 4 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 7-8, paras. 20-21. 5 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33, para. 22. 6 Ibid., at p. 32, para. 14. 7 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 36. 8 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, para. 18; citing Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 111, 128. 9 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 164-173. 10 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). at para. 5. 11 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996, at para. D(3). 12 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, para. 20. 13 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para. 7. 14 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 11-12, paras. 37-42. 15 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 16 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 140. 17 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. 18 Policy on National Documentation Packages in Refugee Determination Proceedings, IRB, Ottawa, Effective date: June 5, 2019, at para. 6. 19 Exhibit RAD-1, National Documentation Package (NDP) for Jamaica, (April 30, 2020), item 5.2, Response to Information Request JAM104717.E 20 Ibid., at p. 4. 21 Ibid., at p. 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09966 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français