TB4-06002

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 : TB4-06002 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 18, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 Matthew Beatty Conseil du ministre Reasons and Decision [1] XXXX XXXX XXXX (the Appellant), a citizen of Jamaica, has appealed a negative determination of the Refugee Protection Division (RPD) issued on June 6, 2014. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] The Appellant alleges that he fears criminals who went to his home some 20 years ago in search of money and asked for the Appellant. The Appellant alleges that the visit caused his mother to have a stroke and to pass away soon after. The Appellant sought the protection of police; however, the police responded by asking the Appellant for money. The Appellant did not receive protection from the police. The Appellant moved to another area and faced the same problems. [4] The Appellant married an American woman in 1994. The Appellant was sponsored by his wife and moved to United States in 1995. The Appellant came to Canada by car sometime in the year 2012 through the assistance of a smuggler. The Appellant was detained in Canada from XXXX XXXX, 2014 until XXXX XXXX, 2013 on XXXX XXXX XXXX. [5] The Appellant fears returning to Jamaica as he would be subject to further crime and would not receive protection from the police. The Appellant made his claim for refugee protection on August 16, 2013. [6] The Minister issued a Notice of Intent to Participate1 on April 16, 2014. The Minister indicated that the Appellant has admitted to being convicted for XXXX XXXX XXXX XXXX XXXX in the US among other offenses. XXXX XXXX XXXX XXXX XXXX is defined in the New York State Penal Code with elements of a serious crime as defined in Canada. The Appellant did not provide details of the conviction. A check of the Appellant's criminal record in the United States revealed that he has been found guilty of XXXX XXXX XXXX XXXX, XXXX XXXX XXXX on two occasions, XXXX XXXX of court on two occasions, and XXXX XXXX. As such, the Minister was concerned that there may be serious reasons for considering that the Appellant has committed acts which would make him subject to exclusion under Article 1F(b). [7] On May 5, 2014, the Minister communicated with the RPD and indicated that it would intervene only by filing documents and that it would be withdrawing its intervention based on Article 1F(b). The Minister indicated that it was of the opinion that the Appellant's claim should be assessed under s. 97 (generalized risk). [8] The Appellant had a refugee hearing on June 3, 2014. Written reasons were issued on June 6, 2014. The RPD found that the Appellant did not establish a nexus to a Convention ground as he feared crime. The RPD found that the Appellant faced a risk of crime which is no different than the general population of Jamaica. The RPD found that violent crime remained a serious problem in Jamaica. The RPD found that there was no persuasive evidence that the Appellant was actively being pursued by anyone in Jamaica when he lived there. The Appellant was never personally targeted or approached in Jamaica. There is no evidence that the people who robbed his parents 20 years ago would still be interested in the Appellant today. The Appellant has not returned to Jamaica in 20 years since he left. The Appellant argued that he would be at greater risk of harm in Jamaica given that he was returning from Canada. The RPD found that this was not supported in the documentary evidence. [9] Appeal pleadings were received on August 20, 2014, accompanied by an Application for an Extension of Time to File or Perfect an Appeal. The Application was approved by the Acting Assistant Deputy Chair given that the Appellant was self-represented and detained. In the pleadings, the Appellant argued that he failed to indicate in his BoC and oral testimony that the people who were looking for him in Jamaica were looking for him because the Appellant was having a relationship with someone of the same sex. The Appellant fears returning to Jamaica because of his sexual orientation and the stigma associated with being gay. [10] The Minister intervened in the appeal2 given that the Appellant is relying on evidence that is not new and was reasonably available at the time of his initial claim. The Minister argued that the totality of the Appellant's reason for appeal (sexual orientation) must be rejected, as it did not amount to evidence that may be presented, as per section 110(4) of IRPA. [11] The Appellant requests that the appeal be accepted. ADMISSIBILITY OF NEW EVIDENCE [12] In his appeal pleadings, the Appellant provided a letter in which he alleged that he fears returning to Jamaica because of his sexual orientation. The letter was not in the form of an affidavit, as per the RAD Rules; however, given that the Appellant was unrepresented, the RAD considered the letter. The Appellant alleged that the people who asked his parents regarding the Appellant's whereabouts at the time of the two robberies did so as a result of rumours that the Appellant was having relationships with men. The Appellant alleged that his relationship with his first wife did not last, as she suspected the Appellant of having gay tendencies. [13] Section 110(4) of IRPA indicates that: "On appeal, the person who is the subject of the appeal may 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". [14] The Appellant's pleadings contain allegations of a new ground for his appeal, namely, membership in a particular social group, homosexuals. The Appellant did not provide any additional documentary evidence to support the new ground other than his statements in the pleadings. The RAD explored whether it was reasonable that the Appellant could have provided this information at the time of the rejection. [15] The RAD finds that the ground is not new, as the Appellant alleged that he was gay and had relations with men in Jamaica before he left in 1995. As such, the allegations do not succeed on the first prong of the 110(4) test: evidence that arose after the rejection of the claim. [16] The RAD then considered whether or not it would have been reasonably expected for the Appellant to provide this evidence at the time of the rejection. The RAD noted that in the Appellant's Application for an Extension of Time to File or Perfect an Appeal,3 which was received after the negative decision on July 4, 2014, the Appellant comments on the risk that he would face upon returning to Jamaica, but he does not mention that he had a fear on the basis of his sexual orientation. [17] A review of the recording indicated that the RPD provided the Appellant with ample opportunity to testify regarding his fear in Jamaica. The RPD asked the Appellant who he had problems with in Jamaica and why. The RPD questioned the Appellant regarding the reason why the robbers were interested in the Appellant, and he testified that he did not know; perhaps they were jealous. Later on in his testimony, the Appellant indicated that he did not know why the people were looking for him. Near the end of the hearing, the RPD attempted to ascertain why the men who robbed the Appellant 20 years ago would still be interested in the Appellant, and the Appellant indicated that he did not know. The pleadings indicated that his whereabouts were asked about because of rumours regarding the Appellant's sexuality. The RAD finds that the Appellant had the opportunity to indicate that the robbers wanted to harm him because of his sexuality, and he failed to make the link between the rumours and his being wanted by the robbers. [18] The RPD asked the Appellant about his first marriage. The Appellant testified that the marriage broke down because his wife was unfaithful. Again, the Appellant had an opportunity to explain that his marriage broke down because his wife thought that he had gay tendencies, but he failed to mention this. The Appellant was asked why he was afraid to return to Jamaica, and he indicated that it was too violent on the island. The Appellant was asked if he feared anyone else other than the men that robbed his house, and he indicated yes; it was very violent in Jamaica. He was asked if he feared the general population, and he failed to indicate that he feared harm because of his sexual orientation. [19] At the end of the hearing, the Appellant was asked if there was any other reason that he feared to go back to Jamaica, partly for what he testified to at the hearing and the Appellant indicated that he feared crime; he had no one left in Jamaica; and in returning he would be like a "lamb going to the slaughter". The Appellant did not indicate any fear regarding his sexual orientation. The RPD then asked the Appellant is there anything he wanted to say that he had not spoken about, and the Appellant indicated that he spoke about what he wants for his life in Canada; however, he failed to mention his sexuality. The Appellant was provided a final opportunity to add anything else, and he indicated that he had nothing else to add. [20] The RAD considered the fact that the Appellant was unrepresented. The RAD finds that the lack of representation has little weight given that the new allegation dealt with a key aspect of the Appellant's identity (his sexual orientation) which he alleged he acted upon while in Jamaica before 1995. A review of the record, especially several Change of Date and Time proceedings, reveals that the Appellant was able to present his concerns and argue his case in a clear, coherent, and forceful manner, despite a strong accent. The Appellant had completed high school. The Appellant had experience with the legal system both in the United States and in Canada. The Appellant's pleadings speak of stigma for gays in Jamaica; however, they do not speak about the Appellant facing any stigma related to his sexual orientation in the last 19 years in the United States or Canada which would interfere in his ability to self-identify as a gay person. In fact, the pleadings indicate: "We can be open in North America and Canada about our sexual tendencies". [21] The Appellant did not indicate in his pleadings that he became aware of the risk of persecution or harm that gays and lesbians face in Jamaica after the rejection of the claim. He was aware of violence against gays while he was in Jamaica, as he indicated in his pleadings that he hid his identity from his family and others out of a fear of stigma and harm. The Appellant was also aware that people treat gays in Jamaica badly based on songs and signs during pride week. [22] The RAD finds that the Appellant was provided with multiple opportunities to raise the issue of his alleged sexual orientation, in various contexts (his general fear, his relationship with his first wife, and the motivation for the robbers to ask for him), and he failed to raise the issue. [23] The RAD also noted that the Appellant made his claim for protection in August of 2013, and he managed to postpone his hearing until approximately 10 months later. There was sufficient time for the Appellant to reflect on the reasons why he feared to return to Jamaica before his claim was heard and to come to the hearing prepared to put forward his case. A refugee claimant does not require counsel or representation in order to provide evidence as to the broad grounds or reasons of a fear to return to his or her country. [24] A person's sexual orientation is a core component of his or her identity. The Appellant alleged that he was aware of his identity as a gay person before he left Jamaica in 1995. He was aware of the treatment of gays in Jamaica. He did not provide evidence of any factor that would have impeded him from indicating to the RPD that he was gay and feared returning to Jamaica because of his sexual orientation. The Appellant was provided multiple opportunities by the RPD to indicate all the reasons why he feared returning to Jamaica, and he failed to indicate that he feared returning because of his sexual orientation. [25] For these reasons, the RAD finds that the Appellant has failed to provide a reasonable explanation why he could not have reasonably been expected in the circumstances to have presented this evidence at the time of his rejection. [26] As such, the Appellant's application to admit the new ground is dismissed, as it did not conform to the requirements of s. 110(4) of IRPA. ANALYTICAL APPROACH [27] In assessing the appeal, the RAD is guided by the recent Huruglica4 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first-level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made, as per s. 111(1)(b) of IRPA. [28] The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise than the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. ANALYSIS [29] The RAD focused on one issue in assessing this appeal: Does the Appellant face a personal risk of crime, as per s. 97 of IRPA? [30] In opening, the RAD would like to note that the RPD took efforts to accommodate the fact that the Appellant did not have representation as evidenced by postponements in the hearing, and by the member at the June 3, 2014 hearing who took the time to explain the process and content of the hearing to the Appellant. The Appellant was encouraged to clarify anything that he did not understand, and the RPD member took care to verify with the Appellant that he was following the proceedings. The RPD also provided the Appellant with an opportunity to make final statements or submissions at the end of the hearing. [31] The RAD noted that the Federal Court has found that it is problematic to find that an individual has been specifically targeted and then go on to conclude that he or she faces a generalized risk.5 A recent decision by Justice Russell6 states: "while a full consensus has yet to emerge, I think that there is now a preponderance of authority from this Court that personal targeting, at least in many instances, distinguishes an individualized risk from generalized risk, resulting in protection under s. 97(1)(b)." [32] In assessing the claim, the RAD considered the test for analysing a claim under s. 97 put forward by Justice Gleason in Portillo7 to: * determine the nature of the risk faced by the claimant; and * compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree. [33] The RAD noted that, in his pleadings, the Appellant indicated that: "In section (26), I wish to state that my fear arise not from the general criminal and corruption activities in Jamaica but more by the wide spread persecution of gays and lesbians". The RAD is cognizant that the Appellant did not have representation throughout the proceedings; however, the RAD noted that the admission by the Appellant that he did not fear general crime and corruption in Jamaica must be afforded significant weight. [34] The RAD considered the remaining evidence on the record regarding the Appellant's fear of returning to Jamaica. The Appellant testified that he fears the people that robbed his parents' home 20 years ago. The RPD correctly found that the Appellant's fear arises out of criminal activity (two robberies at his home), as no evidence was presented to indicate that the motivation for the incidents was anything other than robbery. In fact, the Appellant's BoC (question 2a) indicated that the robbers were asking for money and that his life would be in danger as people think that he has money (response to Question 2b). The Appellant alleged that he was targeted as the robbers asked about the Appellant's whereabouts during the robberies. The Appellant was not home during the robberies, and he had not been approached at any time by robbers or gang members while he was still in Jamaica despite his remaining in Jamaica between the two robberies and the fact that he only left Jamaica after he had married and was able to go to the United States. The record indicates that the Appellant did not know why the robbers had asked for him, other than speculating that it was jealousy. As such, the RAD concurs with the RPD that there was no persuasive evidence on the record that the Appellant was actively being pursued by anyone in Jamaica and that his parents were merely victims of crime. [35] The RPD found that the documentary evidence supports the fact that violent crime remains a serious problem in Jamaica.8 The RAD concurs with this finding. As such, the RAD concurs with the RPD that the Appellant faces a generalized risk of being a victim of a crime that is not distinguishable from that of the general population. [36] The Appellant also testified that he believed that, as a returnee, he would be perceived as having money and would be subsequently targeted. The Appellant did not provide any documentary evidence to support this contention. The Appellant did indicate on the record that his cousin feared crime in Jamaica, and when he visited from the United States, he left the hotel in the day and returned in the evening because of crime. The Appellant did not indicate that it was only ex-patriots or returnees that were targeted upon their return. [37] The documentary evidence cited by the RPD9 also confirms that crime is indiscriminate and widespread and does not target ex-patriots returning to Jamaica for any reason. In fact, the RPD found that the documentary evidence confirms that: "the Country of Origin Information Service could find no information to suggest that returning Jamaican nationals may be subject to adverse treatment for reasons of applying for asylum abroad". Returnees (deportees and failed asylum seekers) can receive support from the International Office of Migration upon their return to Jamaica. It would be reasonable to assume that the documentary evidence regarding returnees would make mention of the fact that they were being targeted, if this were in fact true. [38] Given the lack of evidence provided by the Appellant in support of an increased risk that returnees face and given the silence in the documentary evidence regarding this risk, the RAD concurs with the RPD that returnees to Jamaica would be subject to the same risk that is faced by the general public. [39] For the reasons outlined above, the RAD concurs with the RPD that it is not persuaded that the Appellant faces a personal risk of harm as per s. 97 of IRPA, as he fears generalized crime, which is similar in nature and degree to all others in Jamaica. DISPOSITION [40] The RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. [41] The appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney November 18, 2014 Date 1 RPD's Record, RPD's Exhibit 4, Notice of Intent to Participate and supporting documentation, pp. 68 - 110. 2 Exhibit M-1, Notice of Intent to Intervene, 28 August, 2014. 3 Exhibit P-3, Application for Extension of Time to File or Perfect and Appeal, received July 15, 2014. 4 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014; 2014 FC 799. 5 Kaaker, Farid v. M.C.I. (F.C., no. IMM-4241-12), Shore, November 30, 2012; 2012 FC 1401; Castaneda Malvaez, Angel v. M.C.I. (F.C., no. IMM-2803-12), Martineau, December 14, 2012; 2012 FC 1476. 6 Ore, Mario Salvatore Bozzeta v. M.C.I. (F.C., no. IMM-12646-12), Russell, July 2, 2014; 2014 FC 642, at para 33. 7 Portillo, Jonatan Guzman v. M.C.I. (F.C., no. IMM-5429-11), Gleason, June 4, 2012; 2012 FC 678. 8 Exhibit RPD-1, RPD's Record, RPD's Exhibit 3, National Documentation Package (NDP) for Jamaica (14 March 2014), Item 2.1, US Department of State Report, Jamaica: Country Reports on Human Rights Practices - 2013, 27 February 2014. 9 Exhibit RPD-1, RPD's Record, RPD's Exhibit 3, Item 2.4, UK Home Office, Country of Origin Information (COI) Report: Jamaica, sections 30.02 - 30.04, 15 January 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06002