VB8-05766

RAD File / Dossier de la SAR : VB8-05766 VB8-05767 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision July 10, 2019 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the persons who are the subject of the appeal Kirk W Olearnek Barrister and Solicitor Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Randal Hyland Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is an appeal by the Minister of Public Safety and Emergency Preparedness and the Minister of Immigration, Refugees and Citizenship (Appellant) against a September 20, 2018 decision of the Refugee Protection Division (RPD) that allowed the refugee claims of the Respondents, XXXX XXXX XXXX XXXX (Principal Respondent) and his spouse, XXXX XXXX XXXX XXXX XXXX (Associated Respondent). [2] The Appellant did not submit new evidence and is not requesting that the Refugee Appeal Division (RAD) convene an oral hearing. The Respondents submitted no new evidence but ask for an oral hearing or referrals back to the RPD if the RAD is going to make credibility findings in the course of this appeal. DECISION [3] The Minister's appeals are dismissed. OVERVIEW [4] The Respondents are citizens of El Salvador who were found to be persons in need of protection from El Salvador because of risk of harm or torture from gangs, specifically the Mara Salvatrucha (MS-13). [5] The Respondents left El Salvador for the United States of America (USA) in 2008 after incidents in 2007 with the MS-13. They lived without status in the USA until coming to Canada in XXXX 2017. They have three USA born children who have citizenship and no claims against the USA. The decision regarding the three minor children is not being disputed in this appeal. [6] Claims for refugee protection were made in August 2017 and referred for adjudication by the RPD after the Canada Border Services Agency (CBSA) officers interviewed the Respondents, reviewed their Basis of Claim forms (BOCs), and found them eligible to make claims. [7] The Appellant raises two main arguments: a) that the RPD failed to undertake adequate inquiry into exclusion of the Associated Respondent pursuant to Article 1E regarding her access to citizenship in Guatemala; and, b) that the adjudication of the claim against El Salvador contains errors in the assessments of unreasonable delay in making a claim, lack of future oriented risk, International Flight Alternative (IFA), generalized risk and state protection. [8] The Appellant asked the appeals be allowed and suggested severing the Associated Respondent claim and referring it back to the RPD to properly address the question of Guatemala as a country of nationality for her. DISCUSSION The appeal for an Article 1 E exclusion for the Associated Respondent is dismissed [9] The Appellant has not established that the RPD Member erred by not investigating the possibility of citizenship for the Associated Respondent in Guatemala. The RPD Member briefly addressed the matter by concluding that there is insufficient evidence to find that acquiring Guatemalan citizenship is within the Associated Respondent's control.1 That finding is an accurate assessment of the evidence and the Minister's arguments do not provide a basis to disturb that finding. [10] The only indication that the Associated Respondent has some connection to Guatemala is in her BOC where she provided requested family information including that her father was born in Guatemala and is living in the USA.2 In XXXX 2017, after arriving in Canada, the Respondents each completed a BOC and were interviewed by CBSA officers, where the contents of their BOCs were available for review by officers, with opportunity to question both or either of the Respondents about any knowledge of potential citizenship in Guatemala. The officers did not explore that possibility or ask any questions about connection to Guatemala in the context of their statutory obligation to decide if the claims were eligible for referral to the RPD.3 The Minister chose not to participate in the RPD hearing or present evidence to the RPD regarding access to citizenship in Guatemala. [11] In support of this appeal, the Minister has not identified information in the country documents that would provide insight about potential citizenship in Guatemala for the Associated Respondent. The Minister has not provided any expert official or legal evidence regarding access to citizenship or to status in Guatemala. The Minister relies simply on the argument that the RPD process has an inquiry mandate that should have obligated the RPD Member to undertake a thorough analysis of the possibility of exclusion before deciding the inclusion issues. [12] Rules applicable to the Minister as an Appellant at the RAD require that, to perfect an appeal, the Minister must provide supporting documents intended to be relied on,4 a memorandum with "full and detailed" submissions about the errors in the RPD's decision, and the decision the Minister wants the RAD to make. The Minister has generous opportunity to initiate or participate in appeals but the arguments in this case meet the requirements for perfection by only a bare minimum because of the lack of specifics regarding evidentiary support for the requested outcome. The arguments do not provide a basis to find that the RPD Member erred for not conducting additional enquiry into the question of Guatemalan citizenship for the Associated Respondent. The RPD adjudication of the claims against El Salvador was correct [13] The Minister's arguments fail to disclose errors in the RPD's decision to allow the claims. I confirm the RPD's decision for the reasons that follow. [14] The claims were accepted based on the Immigration and Refugee Protection Act's5 section 97, not section 96, because there is no nexus to a Convention6 ground. The RPD Member found that the Respondents would, on a balance of probabilities, face a risk to life or a risk of cruel and unusual treatment or punishment in El Salvador. The RPD Member correctly applied the legal test of balance of probabilities and assessed the claim based on the narrower definition of harm such as torture or risk to life. The RPD Member correctly concluded that the failure to claim asylum in the USA did not undermine the credibility of the Respondents regarding their allegations of fear if they had to return to El Salvador. [15] The essential facts are not in dispute. The Respondents were subjected to extortion demands by the MS-13 in the operation of their chicken farm in El Salvador. They initially complied but were then not able to pay the demanded amounts. There were threats and, on one occasion in 2007, the Principal Respondent and both of his parents were shot and harmed when gang members attacked the home in retaliation. The Principal Respondent's parents bear scars and permanent wounds. The family reported the incident to police, was traumatized by the event, and fled to the USA shortly afterwards. There is reliable and trustworthy evidence about the 2007 incident including police and medical reports. One adult son of the Respondents could not get a visa to the USA and remained in El Salvador but has since escaped to Mexico in the face of further threats and intimidation. [16] The Minister does not dispute these and other facts regarding the history of harm and threats, and the departure from El Salvador. Nor is there dispute about the Respondent's residence and activities in the USA until coming to Canada in XXXX 2017. [17] One of the Appellant's main arguments is about the fact that the Respondents lived in the USA for a decade without making a claim for asylum there. [18] The Appellant argues that the fact that the Respondents did not make an asylum claim in the USA during their 10 years residing there is evidence of a lack of subjective fear and undermines their allegation of risk of harm or torture if they return to El Salvador. The Appellant argues that it was an error for the RPD Member not to address this problem in the Respondents' evidence. [19] In the Convention refugee context, a delay in seeking asylum when the opportunity to do so arises is generally characterized as lack of subjective fear. In a section 97 context, there is not a similar subjective fear component but a requirement to show, on a balance of probabilities, that a Respondent faces personalized risk that is not faced generally by others in the country. Delay in making a claim may be evidence that a Respondent lacks credibility regarding their allegations but, in this case, the RPD Member concluded that the two Respondents were credible witnesses who had suffered specific and direct threats from MS-13 gang members in El Salvador. Their failure to pay extortion demands and their report to the police after the personal attack and escape to the USA were acts of disrespect that placed them personally at risk to life or risk of cruel and unusual treatment and punishment. The family's resistance is well-known in the village and the gravity of the threats continues and does not diminish over time because the memory of affront is long and families remain the focus of retaliation given the importance on reputation and respect to the gangs. The accounts reflect what is described in the country documents and thus the RPD Member correctly concluded that the Respondents were persons in need of protection. [20] The Respondents gave reasonable and credible explanations for not pursuing efforts to obtain status in the USA, such as cost, a sister's personal experience, and legal advice indicating the likelihood of being denied and then sent back to El Salvador. The Appellant has not shown that the RPD Member's analysis of credibility, or the conclusion that the Respondents face personalized risk, is wrong. The Appellant argues that the general evidence on gangs is not sufficiently specific to find there is personal risk in future but failed to establish how or why the comprehensive analysis of the RPD Member, that considered the country information along with the specific attack against the Respondents and their escape from the gang's retaliation efforts, is incorrect. [21] A related argument concerns IFA. The RPD concluded that the vast, meticulously organized network of MS-13 in the small country of El Salvador and the evident American culture of the Respondents' children would make them targets no matter where they live in El Salvador. The Appellant argues that the RPD dispensed with the proposed IFA without sufficient evidence and based on speculation, and that the findings on IFA more appropriately support a finding of generalized risk. I disagree. While it is true that the Respondents are in a general category of business owners subjected to extortion demands, they became specific targets after resisting, and being personally attacked and wounded, and failing to pay the extortion demands. They escaped the gang's retaliation and became personalized targets as a result. The Appellant's arguments of a generalized rather than personalized risk do not show that the RPD Member was wrong to take into consideration the specific and targeted events and personalized consequences to the Respondents and their family in this case. [22] The Appellant argues that the RPD Member erred in finding that Respondents did not rebut the presumption of state protection because during the police investigation the Respondents refused to identify the assailants. The Appellant correctly cites the test and related jurisprudence confirming a need to take objectively reasonable efforts but fails to show how the RPD Member's analysis was wrong with respect to the specific and credible explanations provided by the Respondents. The Appellant characterizes the Respondents' actions as a failure to assist with the police investigation, but that is incorrect. The Respondents cooperated and provided information to the police about the attack but, out of personal fear, would not identify the assailants. Their explanation was credible and objectively reasonable: they had just been shot and feared that the shooters would return to kill them. It is well known and was an objectively well-founded perception of the Respondents that the rule of law in El Salvador is weak, that there is widespread corruption and criminality within the police force, and that criminal gangs have control. CONCLUSION [23] The RAD dismisses the appeals and confirms the decision of the RPD that the Respondents are persons in need of protection. (signed) "Maryanne Kingma" Maryanne Kingma July 10, 2019 Date 1 Exhibit RPD-1, RPD Record, RPD Decision, para.. 12. 2 Exhibit RPD-1, RPD Record, p. 32. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 100(1) Referral to Refugee Protection Division - An officer shall, within three working days after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.. 4 Refugee Appeal Division Rules, SOR/2012-257; subsection 9(1). 5 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 6 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-05766 VB8-05767 RAD.25.02 (April 04, 2019) Disponible en français 6 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français