Docket: IMM-6295-14
Citation: 2015 FC 994
Toronto, Ontario,
August 20, 2015
PRESENT: The
Honourable Mr. Justice Diner
BETWEEN:
MARTIA ALTHIA ALLEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED
JUDGMENT
I.
Overview
[1]
This is a judicial review of a decision [Decision]
of the Refugee Appeal Division [RAD] confirming the determination of the
Refugee Protection Division [RPD], pursuant to section 111(1)(a) of the Immigration
and Refugee Protection Act (SC 2001, c 27) [the Act], that the Applicant
was not a Convention refugee or a person in need of protection. The RPD rejected
the Applicant’s claim for refugee protection on the basis of its credibility
determinations and a failure to rebut the presumption of state protection. On
appeal, the RAD came to its conclusion "solely on
its reasonable protection finding" and found it "unnecessary for the RAD to consider or comment on the
RPD’s negative credibility findings or on the Appellant’s delay in claiming"
(Applicant’s Record [AR], p. 16).
[2]
In my view, the RAD erred in its failure to
independently engage with the documentary evidence on state protection. Rather
than analyzing this evidence for itself, the RAD reviewed the RPD’s conclusions
deferentially, on a standard of reasonableness. As this Court has repeatedly concluded,
and as I indicated in my reasons in Brodrick v Canada (Citizenship and
Immigration), 2015 FC 491 at para 33 [Brodrick], it is inappropriate
for the RAD to administer the functions of a judicial review (Geldon v
Canada (Citizenship and Immigration), 2015 FC 374 at para 10; Green v
Canada (Citizenship and Immigration), 2015 FC 536 at para 26 [Green];
Ngandu v Canada (Citizenship and Immigration), 2015 FC 423 at para 30).
[3]
For the following reasons, I find the Decision
to be unreasonable and would remit the matter to the RAD for redetermination by
a different panel.
II.
Facts
[4]
The Applicant is a citizen of Jamaica. In the
2011 Jamaican general election, she was employed as a poll clerk in a riding
contested by the People’s National Party (PNP) and the Jamaican Labour Party
(JLP). She alleges that both parties had recruited local criminal gangs, headed
by Dons, to influence the outcome of the election. One of their methods was to
provide gang members with the identification of deceased voters in order to
cast fraudulent ballots and inflate the votes garnered for their chosen
candidate.
[5]
Ms. Allen resided in the riding in which she was
working as a poll clerk her whole life, and refused to cooperate with these
schemes and turned away the fraudulent voters. As a result, she claims that she
has received threats and harassment from gangs aligned with both the PNP and
the JLP that aim to make a example out of her and dissuade others from doing
the same in future elections (AR, p. 18).
[6]
The Applicant maintains that she reported the
harassment from these criminal gangs to the police, but they merely took her
report and did nothing else. Furthermore, news spread that she had become
"an informer", which exacerbated her danger given the brutality
inflicted on those seen to be assisting law enforcement. If returned to
Jamaica, the Applicant fears that she will "immediately
be shot and killed, by members of the PNP and JLP Dons" (AR, p.
26).
[7]
The Applicant applied for a Canadian Temporary
Resident Visa, issued on June 5, 2012, and arrived in Canada on June 26, 2012. She
made the underlying claim for refugee protection on January 28, 2014.
III.
Analysis
[8]
The Applicant argues that (i) this Court should
review the RAD’s selection of its standard of review relative to the RPD (aptly
characterized by the Applicant as the "standard of
intervention") for correctness and (ii) the RAD erred by adopting a
standard of reasonableness to review the RPD’s findings on state protection. The
Respondent contends these two points, and maintains that in any event, the
RAD’s reasons demonstrate that it considered the evidence before it
independently.
A.
Should this Court review the RAD’s
selection of the standard of intervention for correctness?
[9]
As I indicated at the hearing, I also do not
think it is necessary for the resolution of this case to resolve the Court’s
standard of review when assessing RAD’s selection of its standard of
intervention. This is for two reasons.
[10]
Firstly, whether this Court determines that the
Court’s standard of review of the RAD’s selection of its standard of
intervention should be on the basis of reasonableness or correctness, it would
not ultimately influence the outcome of this case, since, as I will explain
below, under either standard the RAD’s selection of reasonableness as the
standard of intervention is inappropriate (Green at paras 25-26; Meilina
v Canada (Minister of Citizenship and Immigration), 2014 FC 1233 at para
9).
[11]
Secondly, I have recently provided my thoughts
on the issue in Brodrick at paras 23-29, concluding that based upon the
high threshold required to rebut the presumption of reasonableness when
judicially reviewing exercises of statutory interpretation in a home statute,
this Court’s review of the RAD’s selection of its standard of intervention
should be reviewed for reasonableness. I see no compelling reason to depart
from my conclusions on this issue. Moreover, any further comments would not be
of considerable value, as the Federal Court of Appeal will address the matter
when it hears the appeal of Huruglica v Canada (Minister of Citizenship and
Immigration), 2014 FC 799 [Huruglica].
B.
Did the RAD err by adopting a standard of
reasonableness to review the RPD’s findings on state protection?
[12]
The reasons of the RAD are peppered with
language indicating the panel was reviewing the RPD’s findings regarding state
protection in Jamaica deferentially. Indeed, it stated explicitly:
[13] …The Appellant also submits that
the RPD erred in its assessment of state protection in Jamaica. These errors
deal with the issue of mixed fact and law. The appropriate standard of review
on these issues is one of reasonableness. (AR, p. 9)
[13]
Judges of this Court have indicated in several
instances that reasonableness is an inappropriate standard of intervention for
the RAD to apply when reviewing findings of mixed fact and law that are
divorced from assessments of credibility (Huruglica at para 54; Kurtzmalaj
v Canada (Minister of Citizenship and Immigration), 2014 FC 1072 at paras
33-34 [Kurtzmalaj]; Meilina at paras 1, 10-12).
[14]
Unless the Respondent can show that an
independent analysis was indeed conducted, or that the findings were in some
way inconsequential, a failure to independently assess evidence for dispositive
issues such as the availability of state protection or an internal flight
alternative amounts to a reviewable error (Huruglica at paras 54-56; Kurtzmalaj
at para 40; Brodrick at para 36).
C.
Do the RAD’s reasons demonstrate that it
assessed the state protection evidence independently?
[15]
A good portion of the hearing was spent arguing,
what is in my view, the crux of this case – that is, despite purporting to
apply a standard of reasonableness, do the reasons indicate that the RAD actually
independently assessed the evidence for itself (Hossain v Canada (Minister
of Citizenship and Immigration), 2015 FC 312 at para 30)?
[16]
It is true that the RAD cited a passage from a
Report by the United States Department of State regarding the 2011 elections
which stated that "…[u]nlike in the past, however,
civil society activism and pressure from the private sector, churches and civic
watchdogs made it difficult for either party to continue past practices of
intimidation, lack of transparency and back room details" (AR, p.
14). The RPD, however, had cited the very same passage in its reasons (AR, p.
52). Further, the RAD adopted the RPD’s findings from a Freedom House
report that the relationship between politicians and organized crime has
recently come under stricter scrutiny. To me, this mirroring in the reasons does
not indicate that the RAD was conducting an independent assessment of the
documentary evidence, insomuch as reviewing the RPD’s assessments.
[17]
It does not elude me that the same Freedom
House report mentioned above gave Jamaica a ranking of 2 for Political
Rights in 2013 (with 1 being the best possible score and 7 being the worst). However,
as the Applicant points out, other portions of the documentary evidence
indicate that circumstances surrounding an election are dubious. For example, in
the same Freedom House report cited by the RPD, a separate paragraph
notes:
Powerful criminal gangs in some urban
neighbourhoods maintain influence over voter turnout in return for political
favors, which has called into question the legitimacy of election results in those
areas.
[18]
It is not for this Court to reconcile competing
evidence to make factual findings on the adequacy of state protection – Parliament
intended this be done by the RPD and the RAD. In performing this task, the RAD should
not merely bless the findings of the RPD from afar, but must provide cogent
reasons which enables this Court upon judicial review to determine what evidence
the RAD itself found persuasive and trace the path of its reasoning (Lemus v
Canada (Citizenship and Immigration), 2014 FCA 114 at para 38).
[19]
The Respondent further argues that the RAD’s
reasons indicate that it took a fresh look at the Applicant’s evidence of
filing a police report and their alleged refusal to act thereafter, and found
it unpersuasive. The RAD noted a nuanced distinction between the Applicant’s
Basis of Claim form, which stated that "…[i]t’s
impossible to tell the good police officers from the bad ones…" and
an affidavit submitted at a later stage which stated that "I went to the Stony Hill police station and made a
report of the incident, but the police refused to act."
[20]
The RAD concluded the following:
[26] The RAD finds, from the Appellant’s
own evidence, that the police were willing to assist her. They took a report of
the threats. There is no persuasive evidence before the RPD or the RAD to find
that the police refused to file her complaint. The RAD finds the
Appellant submits a further explanation for her allegations that police
protection is not available to her in Jamaica. This issue was canvassed at the
hearing and the Appellant was given an opportunity to respond to questions put
to her by the RPD and her counsel. The Appellant cannot use the pleadings to
fill in the gaps in an effort to explain away her testimonial failings. (Emphasis
added)
[21]
In my view, noting these inconsistencies is not
enough to save the Decision for two reasons. First, the RAD clearly indicated
that it was unnecessary to comment on or consider the RPD’s negative
credibility findings, and had come to its conclusion solely on the state protection
issue. Second, even if I place weight on the RAD’s finding in paragraph 26
above (despite the RAD’s position not to question credibility), filing a police
report is not a legal requirement for refugee protection, as Justice Zinn made
clear in Majoros v Canada (Citizenship and Immigration), 2013 FC 421:
[8] In its decision, the Board found
that applicants failed to rebut the presumption of state protection because
they had failed to provide sufficient information to the police after the
various attacks to allow them to properly investigate and apprehend the
persecutors, and did not make any complaint to any state authority that they
were dissatisfied with the police response.
…
[13] One can only conclude from
reading the Board’s decision as a whole that it placed decisive emphasis on the
applicants’ attempts to engage the police, and lost sight of the real question
of whether state protection in Hungary is adequate.
[14] The difficulty with the Board’s
emphasis on the actions of these applicants is this: the evidence on the record
was that the persecution suffered by the applicants was from a right-wing
movement, and that the particular acts of violence and harassment were
perpetrated indiscriminately. As a result, one must ask: “What difference would
it have made if the applicants had more diligently reported and followed up
with the police, and the individuals responsible for the various acts of
violence had been caught?” Based on the record, one can only conclude nothing,
or at the very most very little would have changed: persecution against the
Roma in Hungary is widespread and in most cases indiscriminate. As a result,
the state would be offering no more “protection” than it did prior the
particular acts of persecution. (Emphasis added)
[22]
In other words, while the willingness of the
police to take a report is indicia of adequate state protection, the analysis
cannot end there. The RAD must still consider whether the state protection
afforded to the claimant is adequate in the circumstances. The RAD must make
this determination independently of the RPD, which it did not in this case.
[23]
I note that Justice Kane in Green
recently came to a similar conclusion regarding an inadequate state protection
analysis for Jamaican refugee claimants (Green at para 43).
IV.
Conclusion
[24]
For these errors, I will send the matter back to
the RAD for redetermination. The RAD may indeed ultimately reach the same
result, but the Applicant should not be denied the proper appeal available to
her under the law (Aloulou v Canada (Citizenship and Immigration), 2014
FC 1236 at para 70).
THIS
COURT’S JUDGMENT is that
1.
The application for judicial review is allowed.
2.
The matter is remitted to a differently
constituted panel of the RAD for redetermination of the Applicant’s appeal.
3.
No costs will be awarded and there is no
question for certification.
"Alan S. Diner"
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