Docket: IMM-349-16
Citation:
2016 FC 868
Ottawa, Ontario, July 22, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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SHAVEL ROBINSON
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Ms. Shavel Robinson, is a citizen
of Jamaica. She applied for refugee protection following the murder of her
uncle, which she alleges was arranged by two other relatives. She fears
persecution and alleges that her life is at risk as a result of a family
dispute to which she attributes her uncle’s murder. She also fears she may be
perceived to be a witness in any future prosecution.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board of Canada [RPD] rejected Ms. Robinson’s refugee
claim. She appealed to the Refugee Appeal Division [RAD], which dismissed her
appeal, and is now seeking judicial review of the RAD’s decision. She argues
that the RAD erred in failing to allow her refugee claim under section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] as a
victim of gender-related violence, in failing to admit new evidence submitted
in the appeal, and in rejecting her claim for protection under section 97 of
IRPA for lacking credibility without considering the danger she may face in the
future. Ms. Robinson also submits that the RAD erred in its selection and
application of the standard of review applicable to its assessment of the RPD’s
decision.
[3]
For the reasons explained below, I am dismissing
this application for judicial review. I have identified no reviewable error on
any of the grounds argued by Ms. Robinson and find the decision reasonable.
II.
Background
[4]
Ms. Robinson’s uncle Arnold, a Canadian citizen,
owns land in Jamaica on which he started raising chickens. Ms. Robinson, her
cousin Brittania and her uncle Winston were responsible for running Arnold’s
affairs when he was not in Jamaica. Ms. Robinson and her cousin Brittania were
under Arnold’s and Winston’s care and were also allegedly the beneficiaries of
his estate.
[5]
At her RPD hearing, Ms. Robinson alleged that
there was animosity between her aunt Gayan and Gayan’s husband, Tyrone, and the
rest of the family. She testified to several background events involving
violence and threats. In November 2014, on a weekend when Ms. Robinson had
informed her family that she would be coming home from university, Winston was
stabbed to death by unknown assailants who broke into the house where the
family lives. Ms. Robinson had been unexpectedly detained at university and
alleges that Gayan and Tyrone were behind Winston’s murder and had intended to
kill her too.
[6]
Ms. Robinson alleges that the Jamaican police
advised her family that they had received threats of further violence at
Winston’s funeral. She subsequently came to Canada in December 2014 and, after
being informed that the murder investigation was ongoing and that she was still
in danger, she made a claim for refugee protection in May 2015.
III.
Issues
[7]
Ms. Robinson’s submissions raise the following
issues to be decided in this judicial review:
A.
Did the RAD err in its selection and application
of the standard of review applicable to its assessment of the RPD’s decision?
B.
Did the RAD err in failing to allow her refugee
claim under section 96 of IRPA as a victim of gender-related violence?
C.
Did the RAD err in failing to admit new evidence
submitted in the appeal?
D.
Did the RAD err in rejecting her claim for
protection under section 97 of IRPA for lacking credibility without considering
the danger she may face in the future?
IV.
Analysis
A.
Did the RAD err in its selection and application
of the standard of review applicable to its assessment of the RPD’s decision?
[8]
Based on the recent decision of the Federal
Court of Appeal in Huruglica v Canada (Minister of Citizenship and Immigration),
2016 FCA 93 [Huruglica], Ms. Robinson argues that the RAD’s
consideration of the RPD’s decision involved findings of fact and mixed fact
and law and that the RAD should have applied a correctness standard of review
rather than one of reasonableness.
[9]
The Respondent takes the position that Huruglica
limited the application of the correctness standard to circumstances where
issues of credibility were not engaged. The Respondent submits that correctness
may apply to the RAD’s consideration of whether to admit new evidence or
whether section 96 applies to Ms. Robinson’s claims, but that the standard of
reasonableness applies to the RAD’s consideration of the RPD’s credibility
findings.
[10]
In its decision, which was issued before the
Federal Court of Appeal had ruled in Huruglica, the RAD relied on the Justice
Phelan’s decision in that case (Huruglica v Canada (Minister of Citizenship
and Immigration), 2014 FC 799) in concluding that it must conduct its own
independent assessment and determine whether Ms. Robinson is a Convention
refugee or a person in need of protection, giving deference to the credibility
findings of the RPD or to other findings where the RPD has a particular
advantage in reaching its conclusions. This Court has had to consider how to
approach cases, like this one, where the RAD based its approach to standard of
review on Justice Phelan’s decision before the appellate decision in Huruglica
was released. In Gabila v Canada (Minister of Citizenship and
Immigration), 2016 FC 574 [Gabila] at paras 19-21, Justice Diner
stated:
[19] As a preliminary
matter, the Federal Court of Appeal recently clarified that the standard of
review the RAD should apply when reviewing RPD decisions is correctness,
conducting “its own analysis of the record to determine
whether, as submitted by the appellant, the RPD erred” (Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 103 [Huruglica
FCA]). The RAD’s selection of a standard of review must then be reviewed by
this Court on a reasonableness standard (Huruglica FCA at para 35).
[20] In the decision at
issue, the RAD selected and applied the standard laid out in Huruglica FC at
para 54, a standard that has since been supplanted by the approach offered in Huruglica
FCA. Selecting the Huruglica FC standard does not mean that the
RAD has committed a reviewable error: so long as the RAD conducted, in
substance, a thorough, comprehensive, and independent review of the kind
endorsed in Huruglica FCA, the RAD’s selection of a standard of review
was reasonable (Ketchen v Canada (Citizenship and Immigration), 2016 FC
388 at para 29). I agree with the parties that the RAD did not err on this
point: it had the full record before it, including a recording of the RPD
hearing, and conducted an independent assessment throughout.
[21] As for the RAD’s assessment of the
evidence, it is reviewable on a reasonableness standard (Vushaj v Canada (Citizenship and Immigration), 2016 FC 255 at para 10; Cortes v Canada
(Citizenship and Immigration), 2015 FC 1325 at para
13). As such, if the RAD’s decision on these points is an acceptable and
rational solution that is justifiable, transparent and intelligible, it should
not be disturbed (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[Emphasis added.]
[11]
As in Gabila, the RAD in the present case
reviewed the record that was before the RPD, including Ms. Robinson’s
testimony, and Ms. Robinson has not established that its decision fails to
demonstrate an independent assessment of the evidence, consistent with the
standard it identified it was adopting. I therefore find no error in the RAD’s
selection or application of the standard of review. I also note, as expressed
by Justice Diner at paragraph 21 of Gabila, that the RAD’s own
assessment of the evidence is reviewable by this Court on a reasonableness
standard.
B.
Did the RAD err in failing to allow her refugee
claim under section 96 of IRPA as a victim of gender-related violence?
[12]
The RPD found that Ms. Robinson had not
established a link between her claim and a Convention ground, as a result of
which her claim failed under section 96. It considered her argument that she
should be considered a member of a particular social group as a girl facing
gender violence. However, the RPD noted that her testimony was that her uncle Tyrone
made unwanted advances and statements towards her in 2006, not that he did
anything to her physically. As the reason she was presently fearful was her
belief that Tyrone and Gayan wished to kill her, the RPD concluded from her
evidence that her allegations are that she is a victim if a personal vendetta,
which did not engage section 96.
[13]
The RAD considered this conclusion by the RPD
and noted that Ms. Robinson did not make any submissions on this issue in her Memorandum
of Appeal. She disagrees with this statement, referring the Court to paragraphs
in her affidavit and Memorandum submitted to the RAD. However, those paragraphs
take issue with the RPD’s rejection of her claim based on credibility because
she could not provide evidence of physical harm resulting from an event that
occurred when she was 11 years old. In her Memorandum, she characterizes this
as the RPD relying on trivial errors and failing to apply the UNHCR guidelines
on gender-related persecution [Gender Guidelines]. Ms. Robinson has not referred
the Court to any submissions made to the RAD that her claim should be
characterized as related to gender violence so as to fall under section 96.
[14]
Nevertheless, the RAD did consider the claim
from this perspective, noting Ms. Robinson’s submissions that the RPD erred in
relying on trivial errors, including her inability to give evidence of events
when Tyrone made unwanted advances towards her. The RAD noted that the RPD
found these allegations did not support that Ms. Robinson should be considered
a member of a particular social group, as a girl facing gender violence. The
RAD concurred with the RPD, finding that there was no documentation to support
her allegations of this occurrence and that, in reviewing her testimony and the
narrative in her Basis of Claim form, the basis of her claim was fear of
persecution and death from her relatives, not gender-related persecution. The
RAD therefore found that her claim under section 96 failed.
[15]
On this judicial review, Ms. Robinson argued
that the RAD erred in failing to apply the Gender Guidelines, referring to a section
to the effect that sex can be within the ambit of the social group category.
She also submitted that the fact the incident with Tyrone took place long ago
does not take her claim outside the scope of section 96.
[16]
However, I do not read RAD’s decision as
concluding either that gender-related violence is outside the scope of section
96 or that Ms. Robinson’s claim is outside that scope because of when it
happened. Rather, based on her testimony and Basis of Claim narrative, it
concluded that the basis of her claim was not one of gender-related violence.
The Respondent points out that Ms. Robinson’s only testimony before the RPD on
this issue is one statement that in 2006 her aunt’s husband started making
advances at her and would use insulting language. Her Basis of Claim narrative
contains no mention of this incident or any other gender-related incidents and
focuses entirely on her fear for her life resulting from Winston’s murder and
surrounding threats and events. I find no basis for a conclusion that the RAD
erred in its decision on this issue.
C.
Did the RAD err in failing to admit new evidence
submitted in the appeal?
[17]
Ms. Robinson argues that the RAD erred in
failing to admit into evidence a report of a private investigator, bank
statements from an account held by her and Arnold, and a valuation of Arnold’s
property, as they met the requirements of section 110(4) of IRPA for admission
of new evidence on appeal. Section 110(4) permits introduction of new evidence only
if it arose after the RPD’s rejection of the claim or was not reasonably
available, or if the claimant could not reasonably have been expected to have
presented it, at the time of the rejection.
[18]
The RAD considered the bank statements and the
valuation and declined to accept them into evidence for various reasons,
including a finding (based on their dates) that they could reasonably have been
expected to be available at the time of the RPD hearing or before the claim was
rejected. There is no basis for the Court to interfere with this finding.
[19]
With respect to the private investigator’s
report, Ms. Robinson argues that the RAD allowed form to dictate over
substance, when it rejected this report based on it not being notarized or on a
business letterhead and based on the identity, occupation and role of the
author not being substantiated. She notes that the report bears the signature
of the apparent author and that of another individual who has written “JP” (argued to stand for Justice of the Peace) after
his or her name.
[20]
The Respondent takes issue with Ms. Robinson
raising these specific arguments surrounding the private investigator’s report,
as they were not contained in her written submissions, and submits that the
Court should not consider them. However, as the Respondent proceeded to address
these arguments with what I consider to be a compelling response, I prefer to address
this issue on the merits.
[21]
Unlike the other new evidence, the RAD did not
reject the report as a result of its timing, as it was dated after the RPD’s
decision. However, it applied the factors identified in Raza v Canada
(Citizenship and Immigration), 2007 FCA 385, which have recently been
approved by the Federal Court of Appeal in Canada (Citizenship and
Immigration) v Singh, 2016 FCA 96 as applying to the consideration of the
admissibility of new evidence under section 110(4). These factors require
consideration of whether the new evidence is credible, relevant and material.
[22]
The RAD refused to accept the report as new
evidence because of its lack of credibility and probative value. As the
Respondent points out, the RAD reached this conclusion not just based on the
analysis of the form of the document, but also based on its content. The RAD
noted that Ms. Robinson submitted that the investigator was working with the
police but found that this was not substantiated by the report, in which the
investigator refers to speaking with the police and discovering that they were
unable to protect Ms. Robinson and her cousin. The RAD also observed that the
investigator does not identify who allegedly called him in to assist in the
investigation. Taken in combination with the RAD’s findings with respect to the
form of the document itself, I can find no reviewable error in the RAD’s analysis.
D.
Did the RAD err in rejecting her claim for
protection under section 97 of IRPA for lacking credibility without considering
the danger she may face in the future?
[23]
Ms. Robinson argues that the rejection of her
claim for lack of credibility is unreasonable, because a claimant need not show
evidence of past persecution before being entitled to protection. The
difficulty with Ms. Robinson’s assertion of this principle in the present case
is that her allegation of fear and resulting claim for protection are based on
her descriptions of past events surrounding her uncle’s murder and the connection
with Tyrone and Gayan. The RAD found that, other than the murder itself, these
descriptions were not credible. Without the credibility findings being
impugned, there is no basis for interference with the RAD’s conclusion that she
is not a person in need of protection.
[24]
With respect to the credibility findings, Ms.
Robinson argues that the RAD erred in failing to place probative value on a corroborative
letter from a Jamaican police inspector, because it was not an official police
report and was written in an ambiguous manner. This is an argument as to the
weight to be given to the documentary evidence, which is not a basis for the
Court to intervene on judicial review. Ms. Robinson also argues that this
letter should have been considered in combination with the report of the
private investigator. However, as noted above, the RAD did not admit the
investigator’s report into evidence.
[25]
In summary, Ms. Robinson has not raised
arguments that present a basis for finding the RAD’s decision to be
unreasonable. This judicial review must accordingly be dismissed. Neither party
proposed any question for certification for appeal, and none is stated.
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