Docket: IMM-1223-11
Citation: 2011 FC 1244
Ottawa, Ontario, November 1, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ARTHRINE MELISHA TURTON
VEDA-MAE DOROTHY TURTON
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 4 February 2011 (Decision), which refused the Applicants’ claims for
protection as Convention refugees or persons in need of protection under
sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicants, Arthrine Melisha Turton (Principal Applicant) and her mother
Veda-Mae Dorothy Turton (Secondary Applicant) are citizens of Jamaica. The Principal
Applicant arrived in Canada on 26 July 2008. The Secondary Applicant arrived
in Canada on 15
November 2008. The Applicants claimed refugee status on 22 January 2009.
[3]
On
21 July 2008, the Principal Applicant was abducted on her way home from work
and school. Her abductors forced her into the backseat of her own car and drove
with her to their neighbourhood. While there, she was seen by a number of
people in the neighboured. Her abductors stole her ID, Blackberry, laptop
computer, and other items. After dropping off one person in the neighbourhood,
her abductors took the Principal Applicant with them on a robbery spree. While
she was in the car with the gang members, she heard the name “Lance” mentioned.
[4]
While
robbing a store, the abductors shot and killed a security guard. As the Principal
Applicant later found out, the guard who was killed was John Amos, the nephew
of Senior Superintendent Newton Amos, a high ranking police officer
in the Jamaican Constabulary Force. After they completed their crime
spree, the robbers took the Principal Applicant back to their neighbourhood.
After giving her directions on how to return to her home, they told her they
had been watching her for a while and, if she went to the police, they would
find her and kill her. They then let her drive home.
[5]
After
returning home that night, the Principal Applicant was distraught. When she
went in to work the next day, she explained what had happened to her
supervisor. Her supervisor contacted the company’s head of security who
encouraged her to report the incident to the police. Although she was initially
reluctant to report the incident because she had been threatened and she
believed the police to be corrupt, the Principal Applicant agreed to file a
police report. Her reluctance to report the incident was overcome when her
company’s head of security told her that her licence plate had likely been
observed and, if she did not report to the police, she would likely be
implicated in the shooting.
[6]
Because
the Principal Applicant was afraid of being recognized by gang contacts at the
police station, the head of security arranged a meeting with three detectives
at the Hilton Hotel in Kingston. At the hotel, she told
them her story. The police told the Principal Applicant that she was likely
targeted at random because she drove a nice car, lived in an upscale neighbourhood,
and was a single woman travelling alone. She did not entirely agree, as her
assailants had told her that they had been watching her for some time. At this
meeting, the detectives told her that the security guard who was killed was the
nephew of Senior Superintendent Amos. They also told her that her abductors
were likely members of the Clansmen gang, well known for its tactics of
violence and intimidation.
[7]
After
she reported the incident to the police, the Principal Applicant and her
company remained concerned for her safety. The company hired a personal
bodyguard to protect her around-the-clock. Her company also bought her a plane
ticket to come to Canada, where she would be safe from reprisals. On 26
July 2008, the Principal Applicant departed Jamaica and landed
in Toronto.
[8]
On
28 September 2008, a member of the Clansmen was killed by the police. The Principal
Applicant later testified that she found out from the police that the gang
member who was killed was the same Lance she had heard mentioned in the course
of the robbery spree.
[9]
In
October of 2008, after the Principal Applicant had left Jamaica, the
Secondary Applicant was followed by three men on her way to Church. When the
men were approximately 50 meters away from her she cried out for help. The men
fled. The Secondary Applicant also testified to an event in Kingston where she
was followed while hailing a taxi. At neither of these times were the Secondary
Applicant’s assailants identified.
[10]
After
the Applicants made their refugee claim, the RPD gave them a screening form
which contained information about their hearing. Under the section marked
“Issues,” boxes next to the following issues were ticked:
- Subjective Fear
- Delay in Claiming
- State Protection
- Internal Flight Alternative
- Credibility
- Convention Refugee Definition s. 96
- Nexus
- Agent of Persecution
- Victim of Crime
- Risk to Life or Of Cruel and Unusual
Treatment Or Punishment s. 97(1)(b)
- Risk to Life
- Agent of Harm
The box next to “Generalized Risk” under “Risk
to Life or of Cruel and Unusual Treatment or Punishment s. 97(1)(b)”
[italics in original] was not ticked on the form.
[11]
The
hearing into the Applicants’ claims for protection was held in Toronto on 28
January 2011. The Applicants were not represented by counsel. At the hearing,
the RPD identified the following as issues in the proceeding:
a.
Credibility
– “it really is not an issue because credibility is looked on all claims”
b.
Subjective
Fear – “do you fear if you were returned to Jamaica, the alleged assailants or whatever you
fear, is it subjective? Do you fear being harmed if you went back to Jamaica?”
c.
State
Protection – “That is, if you returned to Jamaica, could the state protect you? For
example, could the police protect you?”
d.
Internal
Flight Alternative – “Internal Flight Alternative, I think you have heard that
one before, because I have seen your narrative. What does that mean? That means
that, well, first of all, before you can claim in any other country besides
your country of origin, you have to avail yourself, not only of state
protection, but is there anywhere safe in your country, in Jamaica, that you
could stay rather than come to Canada?”
e.
Nexus – “in
your particular case, it is… an issue is nexus, do you fit within the five
groups? […] or are you a victim only?”
The RPD also noted that
the Applicants would have to meet the statutory criteria under section 96 or paragraph
97(1)(b), saying
So, pursuant to the legislation, are you
a convention refugee?
Second, is are you at risk to life of
cruel or unusual treatment or punishment, pursuant to the legislation?
So your claim is saying to me that you
are a convention refugee and/or at risk
So, those are the questions obviously I
am going to be putting to you to see if you fit within the confines of the legislation.
[12]
The
RPD also informed the Applicants that they would have an opportunity to make
submissions at the conclusion of their testimony. The RPD said:
What is a submission? Well, most people
think it is just a summary of the case, well that is not really the purpose
because I just heard the evidence I mean I am getting old, I am not that old, I
can remember.
So submissions is [sic] a little more
than that. It is attaching the case law to it.
[…]
And other documentary evidence that you
have. Putting it together and informing the panel, basically your case,
how…what case law you want me to rely upon and the remedy that you want at the
end of the day.
So I am giving you that opportunity. Obviously
you do not know the case law, but if you want the opportunity, I am going to
give you that to give submissions, okay?
[13]
At
the conclusion of the hearing, the RPD gave the Applicants the opportunity to
make submissions, and asked if everything had been covered that the Applicants
wanted to have heard. The RPD made its Decision on 4 February 2011 and informed
the Applicants by letter on 9 February 2011.
DECISION
UNDER REVIEW
[14]
The
RPD rejected the Applicants’ claims under section 96 and paragraph 97(1)(b).
The RPD found that they had not established a serious possibility of
persecution if they were returned to Jamaica; nor had they established a risk
to their lives or a risk of cruel and unusual treatment or punishment on return
to Jamaica.
[15]
In
the Decision, the RPD noted credibility, nexus to a convention ground, and
generalized risk as the issues that determined the claim. As copies of the
Applicants’ passports were provided to the RPD, identity was established. The
RPD also noted that it had considered the IRB Chairperson’s Guidelines on
Women Refugee Claimants Fearing Gender-Related Persecution (Gender
Guidelines) because both Applicants are female.
Nexus to a
Convention Ground
[16]
The
RPD determined the section 96 claim on the issue of lack of nexus to a
convention ground. It held that there was no nexus to a convention ground
because, when she was attacked and forced to participate in the robbery, the Principal
Applicant was targeted because she drove a nice car and lived in an upscale
neighbourhood. The RPD noted that the “[Principal Applicant] believed that the
gunmen were looking for someone who was economically well off compared to the
average citizen.” The Principal Applicant was targeted because she was such a
person.
[17]
The
RPD accepted the Secondary Applicant’s testimony that she had been followed to
church by three men. It did not, however, accept her testimony as to the incident
in Kingston where she
was hailing a taxi and found that both these incidents were “vague”. The RPD
also found there was no evidence linking the Secondary Applicant’s experiences
with the Principal Applicant’s: the Secondary Applicant’s assailants did not
identify themselves as members of the Clansmen gang; nor was there any other evidence
of a link between the incidents. The RPD also found that the Secondary
Applicant was not contacted by the Clansmen gang after the Principal Applicant
left for Canada, nor were
any other members of her family contacted.
[18]
Though
the RPD accepted that the Applicants were victims of crimes in Jamaica, this was
not enough to establish a nexus to a Convention ground. They were not targeted
because of their race, religion, nationality, political opinion or membership
in a particular social group. Since there was no nexus to a Convention ground, the
RPD found that their claims under section 96 must fail.
Generalized
Risk
[19]
The
RPD also considered whether the Applicants were persons in need of protection
under paragraph 97(1)(b) of the Act. Based on the documentary evidence
before it, the RPD found that crime is prevalent in Jamaica. In
particular, the RPD noted that the Prime Minister of Jamaica had said on 22
July 2008, the day after the Principal Applicant was attacked, that in 2008
there were 269 arrests for serious crimes in June, 202 murders in May, 135
murders in June, and 69 murders to that date in July.
[20]
The
RPD found that the Applicants had suffered incidents of harm. However, the RPD
found that this harm did not amount to a personalized risk to their lives or a
risk of cruel and unusual treatment or punishment. Although the Applicant
suffered harm, the risk of further harm to them is no greater than that faced
by the general population in Jamaica. The Applicants’ risk
is one that is faced by all citizens of Jamaica,
particularly those Jamaicans who are perceived to be well off. The RPD said
that in Vickram v Canada (Minister of Citizenship and Immigration)
2007 FC 457, [2007] FCJ No. 619 this Court upheld the RPD’s finding that the
perception of wealth is not enough to establish a particularized risk within
the meaning of section 97. The RPD also noted that in Prophéte v Canada
(Minister of Citizenship and Immigration) 2008 FC 331, [2008] FCJ No. 415, Justice
Danièle Tremblay-Lamer held that where there is a generalized risk of crime,
the fact that a victim of crime is wealthy is not enough to establish a personalized
risk of harm. In this case, the RPD found that the Applicants feared the same
risk of crime as similarly situated persons in Jamaica. Though
wealthy people may be targeted more frequently, this does not mean the
Applicants were not subject to the same generalized risk. Since they shared the
same risk as others, the Applicants did not make their risk a personalized risk
within under paragraph 97(1)(b) of the Act.
Credibility
[21]
Although
the RPD noted in the Decision that it considered credibility, the decision does
not include an analysis of the Applicants’ credibility.
ISSUES
[22]
The
Applicants raise the following issues:
1.
Whether
the RPD breached the Applicants’ right to procedural fairness by failing to
notify them that generalized risk was in issue;
2.
Whether
the RPD ignored evidence of personalized risk;
3.
Whether
the RPD failed to consider gender as a ground for the Applicants’ claims.
Statutory Provisions
[23]
The
following provisions of the Act are at issue in these proceedings:
Convention refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries;
Person in Need of Protection
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
...
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Définition de «
réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
…
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STANDARD OF REVIEW
[24]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
SCJ 9, [Dunsmuir] held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[25]
In Thirunavukkarasu
v Canada (Minister of Employment and
Immigration),
[1994] 1 FC 589, [1993] FCJ No 1172, the Federal Court of Appeal held at
paragraph 10 that “A refugee claimant enjoys the benefit of the principles of natural
justice in hearings before the Refugee Division. A basic and well-established
component of the right to be heard includes notice of the case to be met.” In Gomes v Canada (Minister of Citizenship and
Immigration) 2006
FC 419, [2006] FCJ No. 520, [Gomes] Justice Robert Barnes found that it
was a breach of procedural fairness for the RPD not to notify the claimant that
state protection was in issue. Since the right to notice is an issue of
procedural fairness, the standard of review on the first issue is correctness.
[26]
As
the Supreme Court of Canada held in Dunsmuir, above, at paragraph
50
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask whether
the tribunal’s decision was correct.
[27]
With
respect to the second issue, in Kaleja v Canada (Minister of Citizenship and
Immigration) 2010 FC 252, [2010] FCJ No. 291, Justice John O’Keefe found
that the standard of review with respect to a determination under section 97 is
one of reasonableness. Further, in Guerilus v Canada (Minister of
Citizenship and Immigration) 2010 FC 394, [2010] FCJ No. 438 Justice
Richard Boivin held at paragraph nine that “The review of a claim made
under subsection 97(1) of the Act calls for an individualized inquiry […]
Accordingly, the appropriate standard of review is reasonableness.” The second
issue deals with the RPD’s determination under section 97(1), so the standard
of review on that issue is reasonableness.
[28]
In Vilmond v Canada (Minister of Citizenship and Immigration)
2008 FC 926, [2008] FCJ No. 1150, Justice Michel Beaudry found held at
paragraph 13 that the RPD’s “failure to consider the claim as it is put
forward by the applicant constitutes a misapprehension of the facts and the
evidence” which is reviewable on the standard of reasonableness. Further, in Walcott
v Canada (Minister of Citizenship and Immigration) 2010 FC 505,
[2010] FCJ No, 612 Justice Frederick Gibson held that the RPD’s “failure to
place emphasis on the applicant’s gender” was an error to be evaluated against
the standard of reasonableness. With respect to the third issue, the standard
of review in this case is also reasonableness.
[29]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12, [2009] SCJ No. 12 at paragraph 59. Put another way,
the Court should intervene only if the Decision was unreasonable in the sense
that it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
The RPD
Breached the Applicants’ Right to Procedural Fairness
[30]
The
Applicants argue that the RPD breached their right to procedural fairness by
failing to notify them that generalized risk was in issue. The Applicants say
that, following Cardinal v Kent Institution), [1985]
2 SCR 643, [1985] SCJ No. 78, they have an unqualified right to a fair trial,
including the right to know the case they had to meet. The RPD failed to raise
generalized risk as a part of the case they had to meet, and so violated their
right to procedural fairness.
[31]
The
Applicants rely on Gomes, above, and Maimba v Canada (Minister of
Citizenship and Immigration) 2008 FC 226, [2008] FCJ No. 296 [Maimba]
for the proposition that, where an issue is not raised by the RPD in either the
screening form provided to claimants or at the hearing, there is a breach of
procedural fairness. Unlike in Gomes and Maimba, where the issues
that were not raised by the RPD were not central to the determination before
the RPD, in this case the issue that was not raised was central to the RPD’s
determination. This makes the breach of the right to procedural fairness that much
more egregious.
[32]
The
Applicants say that Lin v Canada (Minister of Citizenship and
Immigration) 2010 FC 108, [2010] FCJ No. 124 [Lin] teaches that,
where some boxes on the screening form are ticked but others are not, the
claimant is put on notice that the issues next to the un-ticked boxes are not
in play. The screening form provided to the Applicants did not have the “Generalized
Risk” box ticked, though other boxes under “Risk to Life or of Cruel and
Unusual Treatment or Punishment” were ticked. Since the “Generalized Risk” box
was not ticked while other boxes were ticked, the Applicants were notified that
generalized risk was not in issue. For the RPD to then turn around and make its
determination on this basis is a violation of procedural fairness.
[33]
At
the beginning of the hearing the RPD went through a list of things that it
thought were in issue in the proceedings. None of the things the RPD listed was
sufficient to put the Applicants on notice that generalized risk was in issue
in the proceedings. Though the RPD said “are you at risk of cruel and unusual
treatment or punishment, pursuant to the legislation?” as it did at page seven of
the transcript, this was insufficient to notify them that generalized risk was
in issue. They argue that this statement simply notifies them that a risk to
life from an agent of harm is in issue.
[34]
The
Applicants rely on Velauthar v Canada (Minister of Employment and
Immigration), [1992] FCJ No 425 (FCA), 141 NR No. 239 and Kaldeen v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No.
1033, 64 ACWS (3d) 1190 [Kaldeen] for the proposition that it is a
breach of natural justice through a denial of the right to know the case to
meet when a board gives instructions on issues but makes a finding that negates
its stipulations. The RPD instructed the Applicants that some things were in
issue, yet found against them on a different basis, so there was a breach of
procedural fairness in this case.
[35]
Following
Augustine v Canada (Minister of Citizenship and Immigration), [1998] FCJ
No. 1069, 81 ACWS (3d) 854, the Applicants say that even a potential
misunderstanding of the issues is enough for a reviewing court to quash and
remit a decision. Since there was an actual misunderstanding of the issues in
this case there was a breach of procedural fairness and the decision of the RPD
should be quashed and remitted for redetermination.
[36]
The
breach of procedural fairness in this case was made more egregious by the fact
that the Applicants were unrepresented at the hearing by counsel. Where a
claimant is unrepresented at a hearing, the RPD has a more onerous obligation
to indicate what issues are in play and explain the case to be met. Since the
RPD did not meet this obligation, the Applicants’ right to procedural fairness
was breached.
The RPD’s
Conclusion on Generalized Risk was Unreasonable
[37]
The
Applicants further argue that the RPD erred in law and in fact by ignoring
evidence that showed they faced a personalized risk to life or cruel and
unusual treatment or punishment. They argue that, because the RPD found the
Applicants’ testimony to be frank and truthful and there was no issue of
credibility, the events the Applicants testified to must have actually occurred
as described in their PIFs and oral testimony.
[38]
In
its assessment of generalized risk, the RPD failed to address the following
facts (Listed Facts):
a.
the
specific targeting of the Principal Applicant by the Clansmen;
b.
the
Principal Applicant was targeted because she was a single woman who travelled
with her mother;
c.
the
Principal Applicant was a witness to the murder of John Amos, the nephew of the
Senior Superintendent of the Jamaican Constabulary Force;
d.
the
Principal Applicant cooperated with the authorities, which resulted in the
death of a Clansmen member;
e.
the Principal
Applicant’s abductors took her to their community, where she was seen by many
people who could later recognize her;
f.
the
Principal Applicant’s abductors stole her ID, laptop computer, and other
identifying information.
The Principal Applicant
argues that all of these uncontradicted facts point to a greater personalized
risk, so it was unreasonable for the RPD to find that she only faced a
generalized risk.
[39]
The
Principal Applicant says that what she fears on return to Jamaica is not a
general risk of crime, but retaliation from the Clansmen gang for her roll in
the killing of one of their members, the Lance she remembers hearing about the
night she was abducted. This risk that she fears is not one faced by Jamaicans
generally, but is one that is particularized to her. The Applicant analogizes
her case to that in Zacarias v Canada (Minister of Citizenship and
Immigration) 2011 FC 62, [2011] FCJ No. 144 [Zacharias],
where the RPD’s failure to find personalized risk in the face of factual
findings that reprisal could occur on the basis of cooperation with
authorities, refusal to go along with a gang, and knowledge of the
circumstances of a gang member’s death was an error. Since the facts in that
case and the instant case are similar, it must also be an error not to find a
personalized risk in this case.
[40]
The
Applicants further argue that the RPD has failed to consider the evidence which
was before it of the perception by the Principal Applicant’s employer of the
risk that she faced. The Applicant entered into evidence a letter from her
employer stating that it felt that she was at high risk of being victimized and
asking Canada to protect
her. Since the RPD only mentioned this letter in the “Allegations” section of
its decision and not in the “Analysis,” it must have ignored this evidence in
coming to its conclusion. Its conclusion must therefore be unreasonable.
[41]
The
Applicants point to the fact that the RPD only mentions Listed Facts in
the “Allegations” section of its decision. This shows that the Decision was
made in ignorance of the facts that were before it. Simply restating the facts
as alleged does not show that the RPD considered the facts that were before it.
The RPD did not say why these facts do not show a personalized risk. Further,
because these facts are important facts which go against the RPD’s conclusion,
relying on Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) [1998] FCJ No. 1425, 157 FTR 35, the Applicants say that the
Court can infer that the RPD did not consider them in coming to its
conclusions. As it was not based on the evidence before it, the Decision was
unreasonable.
[42]
The
Applicants also say that the RPD ignored documentary evidence that was before
it that the Clansmen gang pose a higher risk to women than to other groups in Jamaica. The
documentary evidence, as well as the uncontradicted testimony of the Principal
Applicant, both establish that the Clansmen are a dangerous gang. Where a
general risk of criminality has become particularized through interaction with
a gang, as has happened here, this supports a section 97 claim. Because the
Clansmen are dangerous and the Principal Applicant witnessed a murder in which
one of their members was implicated, and because she has cooperated with the
authorities and the Clansmen have her personal information, the risk to the
Principal Applicant has become particularized. Ignoring these pieces of
evidence shows that the RPD has not adequately analyzed the issue of
generalized risk in this case.
[43]
The
RPD erred when it only considered the factors that lead to the initial incident
between the Principal Applicant and the Clansmen gang; the generalized risk
analysis must be forward-looking. The RPD’s conclusion that the attacks on the Secondary
Applicant was unreasonable, as it was made in ignorance of the Principal
Applicant’s testimony, as well as the documentary evidence that was before the
RPD. Included in the documentary package before the RPD was an article from
Amnesty International entitled Let Them Kill Each Other: Public Security in
Jamaica’s Inner Cities. Because this report speaks to the risk to
women, and the RPD did not disbelieve the Principal Applicant’s testimony that
the attacks on her mother were linked to the attack on her, the conclusion that
the attacks were not so linked was unreasonable.
[44]
The
Applicants rely on Maldonado v Canada (Minister of
Employment and Immigration) [1979] FCJ No. 248, [1980] 2 FC 302 (FCA), for
the proposition that when a claimant swears to the truth of certain
allegations, this creates a presumption that these allegations are true unless
there are reasons to doubt their truthfulness. The RPD’s finding that the
attacks on the Secondary Applicant were not connected to the attack on the
Principal Applicant was unreasonable because there was no evidence the attacks
were not connected, though there was testimony that they were. The Decision
should be quashed as not based on all the evidence.
The RPD
Failed to Consider Gender
[45]
The
Applicants also argue that the RPD erred by failing to consider whether they
faced a personalized risk because of their gender. They say that the RPD has an
obligation to consider whether a claimant faces a personalized risk because of
her gender, whenever the issue is raised. The Principle Applicant raised the
issue when she testified that:
Well, yes, the fact that I have a Honda
Civic motor car, I am a single female, or sometimes I am with my mom in
the car. I live in a neighbourhood that is associated, economically
considered to be an upper class area. They normally tend to prey on people in
that area. In terms of when they are trying to… it is a car that is well… is
stolen a lot, it is considered to be one of those top cars that is easily
accessible. Again, I live in an area that is sort of considered upscale. I am
alone most time in my car. So that would be an easy target for them.
Since the Principal Applicant raised the
issue of gender when discussing why she was targeted by the Clansmen, the RPD
had an obligation to consider gender in its analysis of the claim. She says
that Bastien v Canada (Minister of
Citizenship and Immigration) 2008 FC 982 and Michel v Canada (Minister of
Citizenship and Immigration) 2010 FC 159 support this position.
[46]
Although
the RPD says in its Decision that it considered the Gender Guidelines, the
Applicants say that the RPD did not consider gender as a social group. Further,
because the Amnesty International report provided to the RPD shows that women
in inner-city Jamaica are vulnerable to attacks, this shows that there must be
a prevailing attitude of misogyny in Jamaica. There was evidence
before the RPD of a gender issue which it was obligated to consider. The
Principal Applicant’s gender is what made her vulnerable to the attack of the
Clansmen, so that failing to consider this means the Decision was unreasonable.
The Respondent
There Was No
Breach of Procedural Fairness
[47]
The
Respondent argues that there was no breach of procedural fairness because generalized
risk is an inherent part of section 97 and is therefore in issue in every
proceeding under this section. Nothing was required to put the Applicants on
notice that this was going to be considered by the RPD. The Respondent says
state protection and internal flight alternative are unlike generalized risk
because they are not inherent in section 97 so they require notice. Generalized
risk is inherent in section 97, so this issue does not require notice.
[48]
According
to the Respondent, the jurisprudence says that, where an issue is inherent in
the definition applicable in the proceeding, no notice of that issue is
required. He relies on Liu v. Canada (Minister of
Citizenship and Immigration) 2007 FC 831, [2007] FCJ No. 1101 [Liu]
to show that identity is a central issue in every claim so it does not require
notice. He also points to Ibnmogdad v Canada (Minister of
Citizenship and Immigration) 2004 FC 321, [2004] FCJ No. 327, [Ibnmogdad], Husein v
Canada (Minister of Citizenship and Immigration) [1998] FCJ No. 726, 80 ACWS (3d) 619 [Husein], Balkhi
v Canada (Minister of Citizenship and Immigration) 2001 FCT 419,
[2001] FCJ No. 671 (TD) [Balkhi] and Kante v Canada (Minister of
Employment and Immigration) [1994] FCJ No. 525, 47 ACWS (3d) 798 [Kante] for the same
proposition.
[49]
Further,
credibility is always in issue, so it too requires no notice to claimants. For
this proposition, the Respondent relies on Ayimadu-Antwi v Canada (Minister
of Citizenship and Immigration), [1995] FCJ No. 1116 (TD), 57 ACWS (3d) 332
[Ayimadu-Antwi] and Bains v Canada (Minister of Citizenship and
Immigration), [1995] FCJ 1146 Further, he says that Talukder v
Canada (Minister of Citizenship and Immigration) 2007 FC 668, [2007] FCJ
No. 906 [Talukder], teaches that boxes ticked on the screening are only
a preliminary assessment of the issues in a claim and that a claimant must
still present evidence on every aspect of the claim to be successful.
[50]
There
was also no breach of procedural fairness because the Applicants had notice
that generalized risk was in issue. The annex to the PIF, which was provided to
the Applicants with the form to fill out, contains the definition of “person in
need of protection,” which itself includes the language from subparagraph 97(1)(b)(ii) of the Act. This subparagraph sets
out the requirement that a person in need of protection must not face a risk
that is generally faced by others in the claimant’s country. When they got the
form, which includes this requirement, the Applicants had notice that this was
in issue, as they knew their claim was under paragraph 97(1)(b).
[51]
The
Respondent says that the Applicants have admitted at paragraph 28 of their
Memorandum of Argument that generalized risk was brought up at the hearing. The
Applicants cannot now say that it was not and there cannot have been a breach
of procedural fairness if this issue was brought up at the hearing.
[52]
The
Respondent also argues that the onus was always on the Applicants to make their
case before the RPD. Unlike a criminal case where the onus rests on the Crown
to prove the case, in a refugee hearing the onus is on claimants to prove that
they fall within the criteria for protection. Madi v Canada (Minister of
Citizenship and Immigration) 2001 FCT 1062, [2001] FCJ No. 1450 [Madi]
teaches that there is no case against refugee claimants; all claimants bear the
onus of proving that they fall within the definition of the section in issue in
the proceeding. There was no breach of procedural fairness in this case because
the Applicants bore the onus of demonstrating a personalized risk throughout.
[53]
The
Respondent also says that Rahaman v Canada (Minister of Citizenship and
Immigration), [1999] FCJ 1153 [Rahaman], teaches
that whether there is a breach of procedural fairness through lack of notice
turns on whether the claimant was actually prejudiced by being taken by
surprise or being mislead into not introducing relevant evidence. The Principal
Applicant has admitted in the Applicants’ Memorandum of Argument that she had
an opportunity to testify to all the facts that bore on the generalized risk
assessment. There was no actual prejudice and no breach of procedural fairness
occurred since neither Applicant was deprived of the opportunity to lead
evidence on this issue.
The Finding
of Generalized Risk was Reasonable
[54]
The
Respondent also argues that the RPD’s decision on generalized risk was
reasonable and should not be interfered with because it discussed all the facts
relevant to the generalized risk assessment in the “Facts” and “Analysis”
sections of its Decision.
[55]
The
Applicants have not introduced evidence as to why it was relevant that they
feared the Clansmen gang more than other gangs, or that this gang was more
dangerous than any other gangs in Jamaica. In its reasons, the
RPD discusses why the Principal Applicant was initially targeted; at the
hearing she agreed that they were looking for someone who was wealthy and had a
similar profile. Further, the she did not claim that she was targeted because
she was a woman, but because she had a number of characteristics. Although she
did not exactly believe the police when they said she was simply in the wrong place
at the wrong time, she was not sure that she had been targeted specifically or
whether the Clansmen knew about her before she was abducted. The RPD also found
as a fact that there was no evidence linking the attacks on the Secondary
Applicant with the abduction of the Principal Applicant. Since the conclusion
that the Applicants did not face more than a general risk of crime was based on
all of the above evidence, the conclusion was reasonable and ought not be
disturbed.
Gender
was Properly Considered
[56]
The
Respondent argues that the Applicants simply did not raise the issue of gender
in either their testimony or their PIFs. The Respondent relies on Pierre-Louis
v Canada (Minister of
Employment and Immigration), [1993] FCJ No. 420 [Pierre-Louis] for
the proposition that the RPD is not required to consider gender where it is not
raised on the evidence before it. Since it was not raised on the evidence
before the RPD in this case, it was not an error for the RPD to not consider
gender.
The Applicants’
Reply
The
RPD Failed to Analyze the Listed Facts
[57]
The
Applicants argue that, when he says that the RPD analyzed all the crucial facts
to determine generalized risk, the Respondent does not point to any specific
place in the Decision where the RPD actually conducted a generalized risk
analysis. Rather, he simply cites the entire Decision. The Applicants argue
that, because the RPD only mentions the Listed Facts in the “Allegations”
section and not in the “Analysis” section of the Decision, the only conclusions
the Court can draw are that the Applicants testified to these facts and the RPD
did not doubt the Applicants’ credibility. What the Court cannot infer from
their mention in the “Allegations” section is that the RPD actually considered the
Listed Facts in relation to the Applicants’ personalized risk.
[58]
The
Applicants also argue that, even if the RPD considered the Listed Facts, there
is no reason why these facts would not show a personalized risk under subparagraph
97(1)(b)(ii) of the Act. The RPD
did not explain how these facts did not support a finding of personalized risk
so its Decision was unreasonable.
[59]
The
Applicants also say that the Respondent invites the Court to infer from the
RPD’s consideration of the attacks on the Secondary Applicant that the Principal
Applicant did not face a prospective risk under paragraph 97(1)(b). The
Applicants argue that this does not meet the Dunsmuir standard of justification,
transparency, and intelligibility.
[60]
The
Applicants rely on Pineda v Canada (Minister of Citizenship and Immigration)
2011 FC 403, [2011] FCJ No. 525 [Pineda] for the proposition that,
though an initial encounter with a gang may have been a result of random
targeting, the risk may become sufficiently personalized through interaction
with that gang. This is what occurred in this case. Although the Principal
Applicant may have been initially targeted at random, once the Clansmen had
seen her ID, taken her to their community, and she cooperated with the police,
resulting in the death of a Clansman member, the risk from the Clansmen gang
became sufficiently personalized to support a claim under paragraph 97(1)(b).
The RPD ignored this so the Decision was unreasonable.
[61]
The
Applicants further argue that the Respondent’s argument is based on the claim
that RPD considered all the evidence, when in fact it did not. The RPD ignored
documentary evidence, in the form of an article from The Jamaica Observer about
the former head of the Clansmen Gang, Donovan “Bulbie” Bennett, which showed
that the Clansmen were a dangerous gang. The Applicants argue that the evidence
shows that the Clansmen are in fact very dangerous and have power and influence
in Jamaica; the
Respondent has no basis to say that the Applicants did not argue before the RPD
that the Clansmen were more dangerous than any other gang. The Respondent does not
respond to the evidence that her employer thought the Principal Applicant was
at risk of retaliation from the Clansmen gang.
[62]
The
Decision was unreasonable because the RPD did not sufficiently consider the
issue of personalized risk or the facts that pointed to it.
The RPD Breached
the Applicants Right to Procedural Fairness
[63]
Where
the Respondent argues that credibility is in issue in every hearing, the
Applicants say that this is not because it is inherent in the definition of
“person in need of protection” under section 96 or paragraph 97(1)(b).
Rather, credibility is in issue in every hearing before the RPD because
credibility is always in issue before every tribunal where witnesses are heard.
For this proposition, the Applicants rely on Bains, above.
[64]
The
Applicants further argue that, for the Respondent to say that generalized risk
was in issue because it is inherent in paragraph 97(1)(b) is to say that
the RPD has no onus to notify any claimant of anything that is in issue in a
hearing. To hold that there is no notice required for issues which are inherent
in the definition of these sections would render the screening form meaningless
because all of the boxes on the screening form are issues which are inherent in
the definitions of sections 96 and 97. At the same time, the jurisprudence
clearly establishes that a failure to notify a claimant of an issue is a breach
of procedural fairness. The Respondent has not set out what distinguishes
internal flight alternative and state protection, which are also inherent in
sections 96 and 97, from generalized risk such that notice is required for the
former, while not required for the latter.
[65]
The
Applicants say that the Court has made no ruling that “inherent issues” do not
require notice to claimants; the cases relied upon by the Respondent to
establish this proposition can be distinguished. The Respondent relies on Liu,
Ibnmogdad, Balkhi, and Hassan, above, to show that identity is
always in issue and so does not require notice but these cases are
distinguishable an their facts. In each of those cases, the claimants knew
ahead of the hearing that identity would be in issue and the judicial review
was only directed to the finding of credibility. In the instant case, the
Applicants did not know that generalized risk would be in issue before the
hearing and there was no issue of credibility.
[66]
In
Kante, above, procedural fairness was noted as a concern by the Federal
Court of Appeal because the RPD had given the impression that some things were
in issue but ultimately decided the application on other issues. Though the
Federal Court of Appeal disposed of the case on grounds other than procedural
fairness, this case supports the proposition that the RPD must be clear and
specific about which issues are on the table and which are not.
[67]
The
Applicants argue that Bains, above, cited by the Respondent to
establish that credibility does not require notice, is also distinguishable. Bains
shows that credibility does not require notice, not because it is inherent in
the definition of any of the sections of the Act, but because credibility is
always in issue where an adjudicating body hears from witnesses. The Applicants
argue that it is not appropriate to import this general feature of adjudication
into the specific sections of the Act.
[68]
The
Applicants also distinguish Talukder, above, (relied on by the Respondent to show that ticked
boxes on the screening form are only a preliminary assessment of the issues) on
the basis that there was notice of the issues at the hearing in that case. There,
the Board gave notice of the issues at the hearing and the claimants were
represented by counsel. Here, the Applicants were not represented. In this
case, they had no notice of generalized risk as an issue at all.
[69]
The Applicants
distinguish Madi, above, saying that in that case there was nothing to
mislead the claimant that some things were not in issue because the claimant
was not provided with a screening form at all. In this case, the Applicants
were provided with a screening form on which some boxes were ticked and some
were not. They were mislead into believing that some issues were not on the
table, including generalized risk, because the RPD listed only those issues
which were also ticked on the form at the hearing. Also in Madi, the
claimants were represented by counsel, which they were here.
[70]
The Applicants also
argue that Rahaman, above, is distinguishable. While the RPD did not, in
Rahaman, raise an issue on the screening form about which it later made
a finding, in that case the decision turned on an assessment of credibility not
the issue that was not raised in the form. Since the claimant in Rahaman had
the opportunity to respond to the determinative credibility issue, there was no
actual prejudice. The Applicants argue that, in their case, the failure to tick
off the “Generalized Risk” box on their form prevented the Principal Applicant
from explaining, when asked about why she was targeted, why her profile placed
her at risk which shows she suffered actual prejudice.
[71]
The
RPD found that what the Applicants faced was a generalized risk, but they did
not have a chance to answer this aspect of the case. Since they did not know
generalized risk was in issue, they did not have the chance to emphasize
relevant facts or to highlight evidence in answer to this issue. The failure to
consider the factors they would have drawn together demonstrates that the
Applicants suffered actual prejudice from a breach of procedural fairness, so that
the Decision should be quashed.
The Respondent’s Further
Memorandum
[72]
The
Respondent argues that the RPD fully met its duty of procedural fairness and
the Decision should stand. There is only a breach of the duty of procedural
fairness where there is actual prejudice either by surprise or by misleading
the claimant into not leading evidence on an issue. Neither occurred in this
case. The Applicants were informed of the generalized risk issue through the
questioning of the RPD. Though the questions put to the Applicants did not
raise the generalized risk issue in the language of the Act, there was
sufficient opportunity for the Applicants to respond.
[73]
At
the beginning of the hearing, the RPD alerted the Applicants to their burden of
showing that any risk to them must fit in to section 97 for them to qualify
protection. Having questioned them on generalized risk and alerted the Applicants
to the legal definition of generalized risk, the RPD made them aware of the
need to demonstrate that they faced a particularized risk. The Principal
Applicant admits as much in her affidavit on judicial review when she says
that, “While I did say all of this at various points in the testimony, I feel I
could have elaborated more if I had known that generalized risk was an issue.”
[74]
The
Respondent also says that self-represented litigants are not entitled to a
higher degree of procedural fairness than others. Procedural entitlements are
context-dependent and are intended to ensure a fair hearing where the
unrepresented parties will have an opportunity to present their cases. Further,
it is not the role of the RPD to act as counsel for claimants; where an
applicant chooses to be self-represented, here she must live with the
consequences. Though the RPD has an obligation to explain to an unrepresented
claimant the process that will be followed, this does not mean that
unrepresented claimants get more protection from the RPD than represented
claimants. The Respondent notes on this point that this Court has refused to
certify questions regarding whether self-represented applicants are owed a
greater duty of fairness as this question is settled law in Adams v Canada
(Minister of Citizenship and Immigration) 2007 FC 529, [2007] FCJ No. 721, Agri
v Canada (Minister of Citizenship and Immigration) 2007 FC 349, [2007] FCJ
No. 487; and Khan v Canada (Minister of Citizenship and Immigration) 2006
FC 1183, [2006] FCJ No.1481.
[75]
A
failure by a claimant to fulfill her obligations and assume her burden of proof
does not shift that burden to the RPD, particularly where a claimant is
“educated and prepared.” The Respondent relies on Kelly v Nova Scotia (Police
Commission) 2006 NSCA 27, [2006] NSJ No. 78 at paragraphs 46 and 95 on
this point:
In summary, the Board was faced with a
self-represented complainant who had a very broad understanding of what was in issue
[…]
…
[…] He was entitled to assistance from
the Board about the rules relating to how he could present the case he wished
to present. He was not, with respect, entitled to assistance from the Board
about what case he ought to present or advice about hearing tactics.
In this case, the Principal
Applicant was a sophisticated person; she did not have language difficulties,
nor was she unaware of her role in the proceedings or unprepared to proceed.
Unlike cases such as Nemeth v Canada (Minister of Citizenship and
Immigration) 2003 FCT 590, [2003] FCJ No. 776, where increased intervention
by the RPD was warranted, the Principal Applicant was alert to the burden she
faced and as such she was not entitled to more from the RPD than she received.
[76]
The
Principal Applicant was familiar with the requirements of section 97, including
the generalized risk requirement. She demonstrated through her PIF narrative
and testimony at the hearing that she was aware of internal flight alternative
as an issue. Since both internal flight alternative and generalized risk are
part of subparagraph 97(1)(b)(ii), the Principal Applicant cannot claim
ignorance of one while having knowledge of the other. Because she knew the
requirements of the section and had the opportunity to respond, the Principal
Applicant must have had notice of generalized risk and did not suffer actual
prejudice. Although the Principal Applicant was self-represented at the
hearing, this does not change her onus to make out her claim. The Decision
should stand because there was no breach of procedural fairness.
The
Generalized Risk Finding was Reasonable
[77]
The
finding that the Principal Applicant faced a generalized risk was reasonable as
it was based on documentary evidence of the country conditions in Jamaica. The RPD
found as a fact that, though the Principal Applicant had been personally
targeted by the Clansmen gang, this did not remove her from the generalized
risk of crime faced by all Jamaicans. Further, the claimant bears the onus of
proving a particularised risk and, where an initial attack is based on a
generalized risk, it is open to the RPD to find that future attacks are also
based on general risk. Simply because the Principal Applicant has a subjective
fear of an attack from the Clansmen gang is not enough to elevate her above the
general risk.
[78]
The
cases relied upon by the Applicants to support their claim of particularized
risk do not relate to their factual circumstances and are not relevant to these
proceedings. Zacharias and Pineda, above, and Pineda v
Canada (Minister of Citizenship and Immigration) 2007 FC 365, [2007] FCJ
No. 501, [Martinez Pineda] stand for the proposition that particularized
risk can be found when an applicant is specifically targeted, and subject to
actual repeated threats and attacks by a gang. However, experiencing fear of
threats and attacks alone, without more, is insufficient to give rise to a
particularized risk.
[79]
There
was no evidence before the RPD that either of the Applicants was harmed by the
gang after the initial attack. The RPD found that the Secondary Applicant’s
testimony about one of the attacks was “vague” and that, when she was followed
on the way to church, there was no evidence to link this incident with the
abduction of the Principal Applicant. Further, the RPD found that no members of
her family had been targeted after the Principal Applicant left Jamaica for Canada. While there
may, in some cases, be a particularized risk that arises out of a random
targeting, there must be evidence to support that risk. Since the RPD found
that there was no such evidence here, its conclusion that there was only a
generalized risk was reasonable.
There was No
Nexus Between a Section 96 Convention Ground and Gender
[80]
The
Respondent reminds the Court that the Applicants bear the burden of establishing
that they require the protection offered by the Convention and the Act. There
is no automatic nexus to a Convention ground merely because aspects of an applicant’s
allegations, such as her gender, relate to a Convention ground. For this
proposition, the Respondent relies on SM v Canada (Minister of
Citizenship and Immigration) 2011 FC 949, [2011] FCJ No. 1224 at
paragraph 7:
In general terms, a claimant’s burden is to satisfy the Board that
she was targeted as a woman. Stated differently, a claimant needs to
demonstrate that she would not have been attacked but for the fact that she was
a woman. For example, if a claimant's attackers robbed and attacked her, she
would have to satisfy the Board that the robbery was not the motive. Otherwise,
a man in her situation (even if he, too, had been raped) would not receive
protection but would face the same risk of attack.
[81]
In
the current case, the evidence before the RPD did not suggest that the Principal
Applicant was initially targeted because of her gender. There was no evidence
that the Clansmen gang target women more than men; they might have been
interested in her solely because she was a witness to the murder of John Amos.
The Respondent argues that the Principal Applicant has not demonstrated that
she has met the required burden to require that gender be considered. Further,
the RPD is not required to go beyond the evidence to find grounds on which a
claimant could be found to be a person in need of protection (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No. 74). In this
case, the RPD considered the Gender Guidelines. It was not an error for
the RPD not to consider gender as a ground for protection because there was no
evidence of a gender-based claim and the Applicants did not indicate that they
wished to base their claims on gender.
ANALYSIS
[82]
The
Applicants have three issues. However, in my opinion, only one of them has
substance and requires extensive analysis.
[83]
As
regards procedural fairness, the Applicants are asking the court to prefer form
over substance. This is not appropriate. See Hawthorne v Canada (Minister of
Citizenship and Immigration) 2002 FCA 475 at paragraph 3; Owusu v
Canada (Minister of Citizenship and Immigration) 2003 FCT 94 at paragraph
29; and Lima v Canada (Minister of
Citizenship and Immigration) 2008 FC 1138. A review of the record
reveals that the Applicants were given every opportunity to state the nature of
their case. Lines of questioning were pursued at the hearing that gave them fair
indication that personalized risk was at issue and they were asked to provide
evidence that would speak to this issue. This is what the Applicants did and
they made clear what they feared in Jamaica and adduced evidence to
support the risks of reprisal from the Clansmen gang.
[84]
In
her affidavit for this review application, the Principal Applicant says that
she was able to testify to the personalized risks she faced and what
distinguished her from the general population, but that “I feel I could have
elaborated more if I had known that generalized risk was an issue.”
[85]
The
Principal Applicant does not elaborate to the Court what more she could have
said and the transcript of the hearing, as well as the Decision, indicate a
full explanation of the generalized/personalized risk issue, as well as full
responses from the Principal Applicant on point.
[86]
The
record shows that, even though she represented herself, the Principal Applicant
is an educated and sophisticated individual who was well aware of what the law
required of her to establish section 97 risk and that, through its questioning
at the hearing, the RPD encouraged her to state what she feared and to provide
evidence on point. The RPD’s summary of the facts in the Decision reveals that
it fully understood the nature of the claim and the facts upon which it was
based.
[87]
As
regards nexus and gender, this was never part of the Applicants’ claim and it
has only been raised as part of this application. What is more, there was no
evidentiary basis that would prompt the RPD to address gender. There is
sufficient evidence in the CTR to support the RPD’s findings in paragraph 14:
The claimant testified that on July 21,
2008, she was abducted in her car by three unknown gunmen. The gunmen told her
that they had been watching her movement for sometime and that they possessed a
good deal of information about her and her family. The claimant did not know
exactly what this meant. The police officers she had spoken to thought the
incident might be a crime of opportunity; that is, the gunmen took advantage of
the claimant, as she was in the wrong place, at the wrong time. The claimant
did not exactly believe the police’s premise as she believed the gunmen had
been watching her for sometime. She believed the gunmen were looking for a
person with certain qualities such as living in a good and high end
neighbourhood, had an expensive car and had a good job. In summary, the
claimant believed that the gunmen were looking for someone who was economically
well off compared to an average Jamaican citizen. The claimant maintained that
she fit that profile. She did agree with the Panel that the gunmen were looking
for someone with these qualifications, and if such a person was in that
locality at that specific time, the gunmen would have and abducted that person,
no matter who he or she was.
[88]
The
RPD has an obligation to explore all aspects of persecution and risk that arise
on the facts before it, but it cannot be faulted for not considering something
that was not raised, and for which no evidentiary basis emerged, particularly
when the Principal Applicant agreed that the perpetrators would have abducted
her no matter who he or she was, provided she had the qualities stated. See Viafara
v Canada (Minister of
Citizenship and Immigration) 2006 FC 1526 at paragraph 24; Pierre-Louis,
above, at paragraph 3.
[89]
In
my view, the one matter of substance raised by the Applicants is whether the
RPD adequately dealt with the issue of whether, although they had been the
victims of generalized crime in the past, the risk of retaliation was not a
risk faced by other Jamaicans.
[90]
The
Principal Applicant says that she fears retaliation as a result of her having
given evidence against the Clansmen gang. This resulted in the gang being identified
as the killers of the Senior Superintendent’s nephew and the subsequent killing
by police of one of the gang members. There were no credibility issues raised
with respect to the Principal Applicant’s evidence on this point.
[91]
It
seems clear from the evidence that neither of the Applicants have been targeted
in the past by the Clansmen gang. In my view, the RPD was reasonable in
rejecting the Secondary Applicant’s attempts to link what had occurred to her
to the Principal Applicant and her fears of the gang. The Secondary Applicant
did not provide meaningful responses to questions she was asked on point and
what she did say was too vague to raise any connection.
[92]
So
all I am concerned with here is whether the RPD reasonably addressed the
prospective risks of targeting raised by the Principal Applicant in her
evidence.
[93]
In
SM, above, Justice Judith Snider has the following to say on point at
paragraph 18:
Someone who is attacked and fears that attacks may occur in the
future will no doubt see the attack as personalized. However, if that initial
attack was based on a generalized risk, it would likely not be unreasonable for
the Board to find that any future risk of an attack was a risk faced generally
by the population. That was the situation considered by the Court in Prophète v Canada
(Citizenship and Immigration), 2008 FC 331 (aff'd 2009 FCA 31). If however, the first attack
took place for a unique or individualized reason, it may be that the risk is
not generalized (see, for example, Pineda, above).
[94]
The
issue of targeting is very fact-driven. Justice Snider recently made this clear
in Pineda, above, at paragraphs 12-13:
I
acknowledge that, on a basic level, the Applicant is a victim of crime.
However, the facts of this case are unusual in that the Applicant claims to
have been personally and directly targeted by MS-18. The Board did not question
the credibility of this aspect of his claim. In other words, this is not a
generalized fear of being targeted by MS-18 just because the Applicant is a
citizen or because of his profile as a doctor. The nature of the risk he now
faces is not the same as the risk he faced prior to treating the gang member -
before he treated the gang member, he was susceptible to extortion or violence,
whereas now he is specifically and individually targeted for his perceived
actions, unlike the general population.
In
virtually all of the cases cited by the Respondent, the applicants were not
targeted personally per se. While the gangs may have
known their names, their personal information, and may have even threatened
them or assaulted them on a number of occasions, the nature of the threat was
still generalized. The gang could have gone after anyone with perceived wealth,
or any young person who may be recruited into their gang. These people were
essentially means to an end for the gang members. I doubt that it really
mattered whether person A or person B gave the gang the money for which they
were searching, even if both parties were personally threatened. Similarly, I
doubt that it really mattered whether person C or person D joined their cause,
provided that they continued to increase their membership. The situation before
me is fundamentally different. The Applicant presented a story to the Board of
being at risk because he was perceived to be a person who “ratted out” an
individual gang member.
[95]
On
the facts of the present case, the Principal Applicant does not claim that she
has been personally targeted by the Clansmen gang in the past. She fears that
she will be targeted if returned to Jamaica because of the role she
played in the events that led to the death of a gang member. In other words,
the Principal Applicant is speculating about what might happen to her if she is
returned to Jamaica because she
witnessed a crime and gave evidence to the police that connects her to the
death of a gang member at the hands of the police. The evidence is that the Clansmen
gang operates throughout Jamaica and no one is beyond
their reach. The evidence is also that the Principal Applicant’s employer
considered the threat to her personal safety to be so serious that the
employers hired a bodyguard to protect her and then advised her to leave Jamaica.
[96]
The
Applicants rely upon the case of Diaz v Canada (Minister of
Citizenship and Immigration) 2011 FC 705 and the guidance provided by
Justice Beaudry at paragraphs 15-19:
The
applicant submits that the Board had no doubt that the applicant faced a risk
in El Salvador (decision, para 15) but found that the
risk was not personalized as it was shared by most other Salvadorans. Later on
at para 19 the Board wrote “... While you may be specifically targeted, you
would be the victim of the general and horrific crime problem in El Salvador. Your risk is no greater or different
from most other residents there and your case is therefore not distinguished”.
The applicant argues that where there is specific targeting there is
personalized risk and relies on Martinez
Pineda v. Canada (Citizenship and
Immigration), 2007 FC
365. Therefore, the Board’s decision cannot stand because the conclusion is not
justifiable and is contradictory to its findings that the applicant may be
specifically targeted in El
Salvador.
The
respondent, on the other hand, alleges that under section 97 of the Act, it is
the applicant that has the burden of demonstrating that he personally faces a
risk to his life or a risk of cruel and unusual treatment or punishment if
returned to El Salvador.
He
underscores that the Board carefully weighed and assessed the objective country
conditions evidence in El
Salvador and noted that
gang violence was widespread and pervasive and that no one was immune.
Therefore, the Board did not err in finding that the applicant had failed to
establish that the risk he faced was a personalized risk rather than a generalized
one.
The
Court does not agree with the proposition advanced by the respondent. In the
case at bar, the applicant has been found credible, his evidence trustworthy
and reliable. The Board accepted at para 15 that the applicant was at risk and
at para 19 that he was specifically targeted. There are no explanations for
these findings. Is it because of the applicant’s son’s murder that gang members
would kill him fearing that he would avenge his death? Or because the applicant’s
allegations were found credible? When an applicant’s credibility is not in
question, the Board has the duty to fully analyze and appreciate the
personalized risk faced by that applicant in order to render a complete
analysis of his claim for asylum under section 97 of IRPA, Zacarias v. Canada (Minister of Citizenship and
Immigration) 2011 FC 62 para 17.
The
Board’s conclusion that the applicant is at no greater risk than other
Salvadorans cannot be justified when it already accepted that he was at risk
and specifically targeted. This outcome is outside the range of acceptable ones
as qualified in Dunsmuir
at para 47.
[97]
The
problem on the present facts is that there is no finding that the Principal
Applicant is at risk, or that she has been specifically targeted. In fact, the
evidence is clear that she has not been specifically targeted. She fears that
she will be targeted in the future.
[98]
The
RPD addresses the issue in the following way at paragraph 22 of the Decision:
The Board finds that the claimant is a
victim of forcible confinement, robbery and assault; but these crimes are
widespread in Jamaica and are not specific to the
claimant. There was no persuasive evidence before the Board that the claimant
was targeted for any other reason than she was perceived as being generally
well-off and/or having money due to the type of car she had, where she lived
and the job she had. The same is true for the mother, that there was no
persuasive evidence that the mother was specifically targeted; in the mother’s
case, she was a potential victim of general crime and violence. On the issue of
generalized violence, with respect to a risk to their lives, or to a risk of
cruel and unusual treatment or punishment, the Board finds that the claimant
and her mother did suffer incidents of harm. However, they have not established
an identifiable risk that is distinguishable from that of the general
population. The Board finds that the claimants’ fears of generalized risk is
one that is faced by all citizens of Jamaica or, in this particular case, by
those in Jamaica who are perceived to be well-off. The Refugee Protection Division
does not have a specific legal mandate that extends its protection to persons
such as these claimants.
[99]
There
is nothing unreasonable about the RPD’s conclusions about past targeting. It is
the conclusions about the future that are troubling. On this issue the RPD says
that the Applicants “have not established an identifiable risk that is
distinguishable from that of the population” and that “the claimants’ fears of
generalized risk is one that is faced by all citizens of Jamaica, or, in this
particular case, by those in Jamaica were perceived to be well-off.”
[100] So it is
clear that, in considering future risk to the Applicants, the RPD only
considered that risk from the perspective of someone who is “well-off.” But, as
the Principal Applicant made clear, and as the RPD recited in the facts, the
Principal Applicant’s fear of targeting in the future is not based upon her
being “well-off.” It is based, rather, on her fear that she is now associated
with the death of a Clansman gang member and that she will, as a result, be
specifically targeted by a powerful and vindictive gang. Her employer obviously
shared those fears and provided personal protection, so the Principal Applicant
has some support for her views of what will happen to her.
[101] In focusing
on the “well-off” issue, the RPD appears to have overlooked this aspect of
prospective risk. I am not saying that the RPD should have found that the
Applicants faced a personalized risk if returned to Jamaica. What I am
saying is that the fear of prospective harm at the hands of the Clansmen gang
because of the Principal Applicant’s role in assisting the police and the death
of a gang member was really the heart of their claim, and I think it was
unreasonable for the RPD not to address this stated fear and consider whether,
on the facts of this particular case, it raised a personalized risk. See Zacharias,
above, at paragraph 17.
[102] Because the
RPD did not consider this aspect of the claim with regard to the Principal
Applicant, it also failed to consider whether, notwithstanding the Secondary
Applicant’s lack of coherent evidence, she would face a similar risk of
targeting if returned because of her close association with the Principal
Applicant and the evidence that the Clansmen gang are quite willing and able to
harm family members of targets they cannot reach. In other words, does the
Secondary Applicant face a specialized risk because of her close family
connection to the Principal Applicant?
[103] Counsel agree
there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
This
application is allowed. The decision is quashed and them matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”