Turton v. Canada (Citizenship and Immigration)

Turton v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-11-01
Neutral citation
2011 FC 1244
File numbers
IMM-1223-11
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20111101
Docket: IMM-1223-11
Citation: 2011 FC 1244
Ottawa, Ontario, November 1, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ARTHRINE MELISHA TURTON
VEDA-MAE DOROTHY TURTON
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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,
...
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,
…
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 he