TB4-03565

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 : TB4-03565 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX 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 July 16, 2014 Date de la décision Panel Daniel McSweeney 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 (de la) ministre Reasons and Decision [1] XXXX XXXX, a citizen of Jamaica, has appealed a negative determination of the Refugee Protection Division (RPD) dated March 27, 2014. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for redetermination. BACKGROUND [3] The Appellant alleges that she fears three women who were coworkers at XXXX XXXX. In XXXX 2009, the Appellant's coworkers began to use the Appellant's password to steal from the company. The Appellant reported this and an investigation ensured. The Appellant was cleared of any charges, but the three women were found guilty and sentenced to community service. As a result, the Appellant was threatened with death and fled Jamaica. The Appellant came to Canada on a seasonal worker visa on XXXX XXXX, 2009. The Appellant returned to Jamaica each year during the winter given the seasonal nature of her employment. While in XXXX, Jamaica, in XXXX 2013, the Appellant alleges that she accidentally met with one of her coworkers from XXXX who became very agitated, started shouting at the Appellant, and threatened to kill her for being an informant. The Appellant returned to Canada on XXXX XXXX, 2013 and was granted a visa until XXXX XXXX, 2014. The Appellant made her claim for refugee protection on January 7, 2014. [4] The Appellant had a refugee determination hearing on March 10, 2014. Written reasons for rejecting the claim were issued on March 27, 2013. In its Reasons and Decision, the RPD found that the Appellant's significant delay in claiming and her reavailments to Jamaica were indicative of a lack of subjective fear that was fatal to her claim for refugee protection under Section 96 of IRPA (s. 96). The RPD found that the Appellant did not face a personal risk of harm, as she was not harmed or threatened by any of her three coworkers for four years until a chance encounter in XXXX after which the Appellant was able to run away. The Appellant returned to the same address in Jamaica periodically and was not subject to harm during her visits to Jamaica. [5] The Appellant did not rebut the presumption of state protection given that she did not approach police after she was threatened in 2013. The RPD found that the Appellant's fear of police corruption was not sufficient to ground her arguments that police would not be able to protect her especially given that police had investigated and prosecuted the coworkers previously. The Appellant did not provide evidence that her coworkers had any connections to criminal gangs in Jamaica. The Appellant's failure to seek the protection of police after being threatened in 2013 was not reasonable. [6] Appeal pleadings were received on XXXX XXXX, 2014. In the appeal, the Appellant's immigration consultant argued that the RPD erred in several ways. The RPD erred in law when it assessed the Appellant's claim under s. 96 given that the claim was made under section 97 of IRPA (s. 97). The RPD erred in its plausibility finding related to the Appellant's subjective fear and her delay in claiming based on the Elcock1 case, as it did not take into consideration the fact that the Appellant came from a diverse culture which had an effect on her knowledge of the Canadian refugee process and her failure to make a claim in a timely manner. [7] The RPD erred by failing to perform a separate s. 97 analysis of the portion of the allegations which were found to be credible. The RPD erred by transferring its findings on subjective fear into its s. 97 analysis. [8] The RPD erred in its finding that the coworkers were dealt with by police and the courts, and the Appellant did not receive any more threats until XXXX 2013. The Appellant was accused of being an informer, and she reported the matter to police who did nothing to protect her. The RPD erred when it found that police had taken action on these women for years before, and therefore there was no reason for them not to act upon a complaint from the Appellant in 2013. The RPD erred in finding that the failure of the coworkers to harm the Appellant between 2009 in 2013 was indicative of lack of ill will towards the Appellant, as the Appellant lived outside of Jamaica for much of the time. The RPD erred in its finding that authorities in Jamaica have taken steps to address the issue of police corruption. The RPD erred by not evaluating Jamaica's real capacity to protect its citizens. [9] The appeal requested that the RAD returns the claim for redetermination before a different panel member or that the RAD substitute the RPD's decision with a different decision. [10] No new evidence was presented in support of the appeal other than an affidavit2 provided in support of the allegations. The RAD noted that the affidavit contained a significant inconsistency in lines 11 and 12 as follows: In 2013, while I was in XXXX, I was confronted by XXXX XXXX, who called me an informer and threatened me with death. I matter was reporter to the police, but nothing was ever done to protect me [sic]. [11] The allegation that the Appellant reported the threats of XXXX 2013 was not supported by her oral testimony at the hearing that she did not report to police, and her BoC addition (response to Question 2h) did not indicate that she made efforts to seek police protection in XXXX of 2013. The Appellant did not provide an explanation in her affidavit as to why she was providing evidence which was contrary to her oral testimony at the hearing. Given the inconsistency and the lack of a reasonable explanation for the inconsistency, the RAD finds that it cannot place weight on the statement cited above. The appeal pleadings were produced by the same representative as at the hearing, during which the Appellant clearly testified that she did not seek police protection after the 2013 incident, as the police did not do anything in 2009. As such, the RAD disregarded the section in paragraph 76 of the pleadings which confirms a detail that did not reflect the Appellant's testimony at the hearing and for which no explanation was provided that would explain why the Appellant had changed her allegations in the affidavit. STANDARD OF REVIEW [12] The RAD focused on two issues in assessing this appeal: a) Did the RPD err in law by assessing the claim under s. 96 of IRPA? b) Did the RPD err in mixed fact and law by finding that the Appellant had not rebutted the presumption of state protection in Jamaica? [13] The recent Federal Court decision, in Iyamuremye,3 provided guidance to the RAD regarding the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, as per Dunsmuir.4 [14] The correctness standard is applicable to questions of law and issues of general legal importance, which fall outside the specialized area of expertise of the RAD.5 The RAD finds the application of s. 96 is a question of law which requires a correctness standard. The issue of state protection is one of mixed fact and law which requires a reasonableness standard. ANALYSIS OF THE MERITS OF THE APPEAL [15] As identified above, the RAD focused on two issues in assessing this appeal: a) Did the RPD err in law by assessing the claim under s. 96 of IRPA? b) Did the RPD err in mixed fact and law by finding that the Appellant had not rebutted the presumption of state protection in Jamaica? Assessment of the Claim under Section 96 [16] The RPD found that the delay in claiming was indicative of a lack of subjective fear which was fatal to the Appellant's claim under s. 96. The RPD erred in law when it assessed the Appellant's claim under section 96 of IRPA given that the claim was made under s. 97 of IRPA. The RPD also erred by transferring its findings on subjective fear into its s. 97 analysis. [17] Based on a review of the totality of the evidence before it, the RAD finds that the RPD erred in assessing the claim under s. 96. At the onset of the hearing, the RPD indicated that the Appellant had a possible nexus to the definition in that she alleged that she has been labeled an informer, and she is against corruption of authorities. The Appellant's claim documents made no mention of a fear of persecution based on her imputed or perceived political opinion, and did not comment on a fear of persecution by authorities in Jamaica. The RPD did not provide any rationale in its Reasons and Decision as to why it chose to assess part of the claim based on s. 96. [18] The RAD is cognizant that the political opinion at issue need not have been expressed outright. The claimant may not always articulate his or her beliefs and that the political opinion will be perceived from the claimant's actions or otherwise imputed to him or her, or that the political opinion be ascribed to the claimant by the persecutor. The key question in assessing political opinion is: "Does the agent of persecution consider the claimant's conduct to be political or does it attribute political activities to him or her?"6 [19] In the case at hand, the Appellant indicated that authorities did not provide her protection when she first reported the threats in 2009. The Appellant's belief that she would not be provided protection by the police was put forward to support her claim that she would not be provided adequate state protection after the XXXX 2013 threat. At no point did the Appellant indicate that she had confronted authorities with her belief that they were corrupt. In addition, the Appellant did not indicate that she feared police or authorities in Jamaica. [20] The Appellant fears threats and harm by her coworkers based on a personal vendetta. The Federal Court has held that victims of crime, corruption7 or vendettas8 generally fail to establish a link between their fear of persecution and one of the Convention grounds in the definition of Convention refugee. The Board has been upheld in its finding of lack of nexus, where the claimant was the target of a personal vendetta9 or where the claimant was a victim of crime.10 The claimant's fear in this case is not linked to race, ethnicity, religion, to real or imputed political opinion or to any other Convention ground. The panel concludes that the claimant fears future crime based on her involvement in reporting the crimes at her workplace. [21] The RAD therefore finds that the RPD erred in law by assessing the claim under section 96, given that no persuasive evidence or argument was put forward to support why the RPD chose to address the claim based on s. 96, and given that the Appellant feared harm based on a personal vendetta. The RAD finds that this error is not determinative of the claim, given that the Appellant based her claim on a fear of harm or a risk to her life under s. 97. [22] The pleadings also indicated that the RPD erred in transferring its findings related to the subjective fear of the Appellant which were made under s. 96 to the s. 97 analysis. The pleadings correctly argue that there is no need to assess subjective fear under s. 97. While it was not necessary for the RPD to assess the subjective fear as a component of s. 97, the RAD finds that issues such as significant delay in claiming, and successive reavailments do not necessarily have to be applied to an assessment of the subjective fear of a claimant under s. 96. They can have a bearing on the assessment of the credibility of a claimant's fear of harm under s. 97. Reasonableness of State Protection Findings [23] In its reasons and decision, the RPD found that the Appellant has not provided clear and convincing proof that state protection in Jamaica is inadequate for persons in her situation. The RPD found that the Appellant's fear of police corruption was not sufficient to ground her arguments that police would not be able to protect her, especially given that police had investigated and prosecuted the coworkers previously. The Appellant did not provide evidence that her coworkers had any connections to criminal gangs in Jamaica. The Appellant's failure to seek the protection of police after being threatened in 2013 was not reasonable. The pleadings argued that the RPD erred in its state protection analysis in that it did not evaluate Jamaica's real capacity to protect its citizens and the effectiveness of state protection initiatives in Jamaica. [24] In assessing the reasonableness of the determination, the RAD focused on the totality of the evidence regarding the issue of the adequacy of state protection in Jamaica. The RAD is cognizant that the RPD is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons, unless the contrary is shown.11 The RAD is also cognizant of the requirements of the RPD to refer to the totality of the evidence before it and not necessarily to cite the evidence which supports its own particular conclusions.12 [25] The documentary evidence before the RPD regarding state protection in Jamaica is not equivocal. In submissions, the Appellant's representative indicated that the US Department of State Report for Jamaica13 indicated that unlawful security force killings were one of the most serious human rights problems in Jamaica. The representative went on to cite the UK Country of Origin Information Report which confirms widespread corruption in the Jamaican Police Force.14 The representative also indicated that the raid in 2010 in Kingston found 10,000 tons of ammunition that had been stolen from the police armory. The pleadings indicate that the public has lost faith in Jamaican police because of extrajudicial killings by police and police actions to cover up these killings.15 The pleadings also cite the fact that whistleblowers are not well protected by Jamaican law.16 [26] In addition to the submissions, the RAD considered other evidence in the National Documentation Package regarding the issue of state protection. The OSAC Report17 indicates that: Police support for foreign victims of crimes runs between semi-responsive and non-responsive due to a shortage of manpower, training, vehicles, and other resources... The Jamaica Constabulary Force is considered to be underpaid, poorly trained and corrupt. The general perception is that the majority of crime victims do not report crimes due to fear of reprisals by the police, the belief that police are corrupt, or the feeling that nothing would, from such reports. [27] While this report refers to foreign victims of crime, it does paint a portrait of Jamaican police as ineffective in providing protection. [28] A Response to Information Request (RIR)18 provides the most up-to-date information regarding crime, effectiveness of police, and state protection for witnesses and victims of crime in Jamaica. This report indicates that the judicial system in Jamaica is extremely ineffective, and it can take years for cases to come to trial. The RIR indicates that the witness protection program is ineffective and not trusted, and slow court process results in people being in the program for years. [29] Another RIR19 indicates that, although there are a variety of human rights structures in Jamaica, such as the Office for the Public Defender, the Children's Advocate and the Political Ombudsman, these institutions receive insufficient assistance in financing from the state. [30] Another RIR20 indicates that the review panel with local and international experts on law enforcement, governance and police reform faulted the Jamaican Constabulary Force for a culture of "command and control", for failing to act sufficiently against police corruption and abuse of human rights, for weak and ineffective oversight mechanisms, for inefficient management structures, and for poor working conditions of staff. [31] In its reasons and decision, the RPD acknowledged that there is "some evidence of corruption within the Jamaican police. However, the authorities have addressed the issue of police corruption to some extent by arresting, charging and dismissing a number of officers". [32] The Federal Court has directed the RPD to take a contextual approach when assessing the availability of state protection and determining whether a claimant has rebutted the presumption of state protection.21 This involves an assessment of the country conditions. The evidence and the conclusion must be connected with a line of reasoning that is transparent and intelligible.22 [33] A review of the RPD's Reasons and Decision reveals that the RPD applied the factors of a contextual approach (nature of human rights violation, profile of the alleged human rights abuser, the efforts that the victim took to seek protection from authorities, and the response of the authorities to requests for their assistance).23 [34] The RAD finds, however, that the RPD did not undertake a comprehensive assessment of the documentary evidence before it regarding the capacity of the Jamaican authorities to provide adequate state protection, in addition to the representative's submissions. The RPD's acknowledgement of some corruption among police officers was not sufficient to ground its finding that adequate protection was available to the Appellant, and it did not address the concerns identified by the Appellant's representative in submissions. The RPD did not make explicit why it chose to place more weight on documents which alluded to adequate state protection in Jamaica versus the significant evidence in the documentary package to the contrary. As cited above, the RPD had documentary evidence before it that spoke of the inability of Jamaican authorities to provide protection to their citizens. The RAD finds that it was incumbent on the RPD to make reference to the breadth of such evidence in making its finding. [35] Based on a review of the totality of the evidence, the RAD finds that the RPD's finding regarding the adequacy of state protection in Jamaica was not reasonable in that it failed to consider the totality of the documentary evidence on the record which opposed the RPD's conclusion, and the RPD failed to adequately support its argument that adequate state protection was available in Jamaica. The RPD's finding was not reasonable, as it was not transparent and intelligible. Credibility Concerns [36] The RAD noted that the RPD's Reasons and Decision found the Appellant to be a credible witness; however, a review of the totality of the evidence by the RAD revealed some credibility issues which may require further exploration and, therefore, preclude the RAD from substituting the negative determination with a positive determination. [37] For example, the Appellant's initial BoC forms made no reference to a threat of harm by the Appellant's co-worker in XXXX 2013. The RPD made a BoC amendment in question 2(h) at the time of the hearing. This amendment included the allegation that the Appellant was threatened by one of her former co-workers in XXXX 2013. The amendment did not provide the name of the co-worker. The RPD failed to explore at the hearing the Appellant's explanation for why the threat of XXXX 2013, which caused the Appellant to leave to Jamaica in fear, was not included in the original BoC. Omissions of significant facts in a BoC may have an effect on the credibility of the allegations and the assessment of the credibility of a claimant. [38] The Appellant provided a letter24 which was allegedly signed by a Justice of the Peace. This letter did not provide the name of the Justice of the Peace, and it had no security features, which would be expected from a letter endorsed by a Justice of the Peace, such as letterhead stamps or seals. The record did not indicate how this letter was received in Canada or that original letters were provided to the RPD. Furthermore, the letter indicated that the names of the three coworkers were: XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX. The Appellant's BoC indicated that she feared: XXXX XXXX XXXX(an alias) and XXXX. In her oral testimony, the Appellant testified that she feared XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX. The inconsistencies in the Appellant's description of the agents of harm may require further exploration by the RPD. [39] The Appellant also provided a letter from XXXX XXXX.25 This letter did not explain the relationship between the author and the Appellant. The letter indicated that the author reported the threats to the police; however, the company took matters into its own hands. This allegation may require further exploration given that Ms. XXXX involvement in reporting to the police was not included in the Appellant's BoC or in her testimony at the hearing. In fact, in her response to question 2(c) of the BoC, the Appellant indicated: "I demanded that the police got involve so that I could clear my name [sic]". Furthermore, the fact that Ms. XXXX approached police for protection is a significant detail which must be assessed in the analysis of the Appellant's evidence of a lack of state protection. [40] As highlighted above, the affidavit provided by the Appellant did not provide a rationale or explanation as to why she contradicted her oral testimony that she did not contact police for protection after the 2013 threat. [41] The Appellant alleges that she was threatened in XXXX. The Appellant lived in XXXX XXXX in the XXXX at the time was when she returned to Jamaica. The Appellant testified that she was not approached while she was living outside of XXXX. As such, the issue of an internal flight alternative (IFA) in XXXX may be an issue which can be explored by the RPD. [42] The RPD has the jurisdiction to conduct a hearing26 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, and it has the expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. Given that the RPD's state protection findings were found not to be reasonable and given issues identified above require an assessment of the Appellant's credibility, the RAD finds that it cannot substitute the negative determination with a positive determination. DISPOSITION [43] Based on a review of the totality of the evidence, the RAD finds that the RPD's findings related to the adequacy of state protection were not reasonable. As such, the RAD refers the matter back to the RPD for redetermination de novo, as per Section 111(1)(c) of IRPA. (signed) "Daniel McSweeney" Daniel McSweeney July 16, 2014 Date 1 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999. 2 Appeal Pleadings, Affidavit of XXXX XXXX, dated XXXX XX 2014. 3 Iyamuremye, Oscar v. M.C.I. (F.C., no. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 4 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para 47. 5 Ibid. 6 Inzunza Oreallana, Ricardo Andres v. M.E.I. (F.C.A., no. A-9-79), Heald, Ryan, Kelly, July 25, 1979; (1979), 103 D.L.R. (3d) 105 (F.C.A.), at 109. 7 Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no. IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v. M.E.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; Vargas, Maria Cecilla Giraldo v. M.E.I. (F.C.T.D., no. T-1301-92), Wetston, May 25, 1994. 8 Marincas, Dan v. M.E.I. (F.C.T.D., no. IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce, Rita Gatica v. M.C.I. (F.C.T.D., no. IMM-5237-94), Jerome, November 3, 1995; (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); and Xheko, Aida Siri v. M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998. 9 Farro Rivera, Jose Luis et al. v. M.C.I. (C.F.T.D., no. IMM-572-98), Tremblay-Lamer, February 22, 1999. 10 Bacchus, Amit v. M.C.I. (F.C., no. IMM-4679-03), Mosley, June 8, 2004; 2004 F.C. 821. 11 Sathanandan, Shanthini v. M.E.I. (F.C.A., no. A-645-90), Mahoney, Desjardins, Linden, October 7, 1991; (1991), 15 Imm. L.R. (2d) 310 (F.C.A.). 12 Orgona, Eva v. M.C.I. (F.C.T.D., no. IMM-4517-99), MacKay, April 18, 2001; 2001 FCT 346. 13 RPD's Record, National Documentation Package (NDP) for Jamaica, item 2.1, US DOS Report for Jamaica, 19 April 2013, Executive Summary. 14 RPD's Record, NDP for Jamaica, item 2.4, UK Home Office, Country of Origin Information (CoI) Report on Jamaica, 15 January 2013, s. 9.10. 15 RPD's Record, NDP for Jamaica, item 2.3, Freedom House, Freedom in the World 2013 Report. 16 RPD's Record, NDP for Jamaica, item 2.3, Freedom House, Freedom in the World 2013 Report, paragraph 4, p. 2. 17 RPD's Record, NDP for Jamaica, item 7.4, OSAC Crime and Safety Report, Jamaica 2013, 29 July 2013. 18 RPD's Record, NDP for Jamaica, item 7.3, RIR JAM104263.E, 14 January, 2013. 19 RPD's Record, NDP for Jamaica, item 10.3, RIR JAM103640.E, 20 December 2010. 20 RPD's Record, NDP for Jamaica, item 10.2, RIR JAM103639.E, 23 December, 2010. 21 Torres, Luis Felipe Gonzalez v. M.C.I. (F.C., no. IMM-1351-09), Zinn, March 1, 2010; 2010 FC 234; [2011] 2 F.C.R. 480 (F.C.). 22 Navarete Andrade, Ana Maria v. M.C.I. (F.C., no. IMM-6187-12), Rennie, April 26, 2013; 2013 FC 436. 23 Avila Ortega, Lucia v. M.C.I. (F.C., no. IMM-2183-09), Zinn, October 16, 2009; 2009 FC 1057. 24 RPD's Record, Letter signed by Justice of the Peace, p. 178. 25 RPD's Record, Letter signed by XXXX XXXX, p. 179. 26 IRPA, s. 170. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03565