TC0-09713

RAD File / Dossier de la SAR : TC0-09713 TC0-09714 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 23, 2021 Date de la décision Panel Karen McGovern Tribunal Counsel for the persons who are the subject of the appeal Belinda Bozinovski Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appealXXXX XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX (Associate Appellant) are citizens of the Philippines. a. The Appellants fear being killed by NS, the brother-in-law of the Principal Appellant (PA). The PA helped NS's daughter to report to the police that NS was sexually assaulting her. As a result, NS was charged and spent XXXX months in jail. NS is wealthy and has many influential connections that allowed him to get the sexual assault case withdrawn and provided him with preferential treatment at the prison. NS hired gunmen to kill the PA and the Associate Appellant (AA). The Appellants moved several times in an effort to avoid NS. The police intervened in an incident involving the gunmen on motorcycles planning to kill the AA. After arriving in Canada, the Appellants learned that NS had been released from prison and went to Manila to search for them. b. The Refugee Protection Division (RPD) made no credibility findings but concluded that state protection was available and that the Appellants had a viable internal flight alternative (IFA) in Manila. The RPD found the PA's testimony about how NS could locate the Appellants to be speculative. The Appellants argue that the RPD erred in finding there was state protection by ignoring evidence of NS's influence and levels of corruption in the Philippines. They also argue that the RPD misconstrued evidence and failed to consider evidence that demonstrates the PA's testimony is not speculative. c. The determinative issues are state protection and IFA. d. The RPD failed to consider NS's influential connections and that neither he nor the gunmen have been apprehended. Given the high levels of corruption, adequate state protection is not available. In addition, the RPD misconstrued evidence from the Chief of Police and failed to consider corroborating documentation that demonstrates there is a serious possibility that NS is motivated and would be able to find and harm the Appellants in Manila or elsewhere in the Philippines. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellants are persons in need of protection. NEW EVIDENCE [3] The Appellants submitted the following as new evidence: a) Paragraphs 36 - 40 of the PA's affidavit sworn August 12, 2020; b) Copies of texts received by the PA's brother, BR; c) Letter to the Mayor of the Municipality of XXXX dated XXXX XXXX, 2020; d) Letter from the Deputy Chief Public Attorney dated XXXX XXXX, 2020; e) News articles: i. "We are Social report: Philippines tops internet and social media use in 2020" dated February 25, 2020; ii. "Filipinos Spent the Most Time on Social Media (Again), According to Study" dated June 23, 2020; iii. "3 Reasons why Social Media in the Philippines is Huge" dated August 1, 2019; and iv. "4 More Reasons why Social Media in the Philippines in Huge" dated August 15, 2019. [4] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [5] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 Items (a), (b), (c) and (d) are admitted [6] The affidavit3 is sworn on August 12, 2009, by the PA. In paragraphs 36 - 40, the PA describes new information she has received from her brother, BR, in the Philippines. She states that NS has been reported to the police twice for allegations that he sexually assaulted his second daughter, MS, as well as for continuing sexual abuse of his older daughter and physical abuse of the PA's sister; however, NS has not been charged. The PA states that she suspects that a powerful politician, RA, who has a close connection to NS, is using his influence to dismiss the recent reports of ongoing physical and sexual assault. Although some of the information pre-dates the RPD decision, the PA states that she and her family have had challenges in getting documentation because of the Covid-19 pandemic and reluctance from the Chief of Police in releasing information. In that respect, the noted paragraphs of the affidavit and the attached copies of texts from the PA's brother, and the two letters to the Mayor and letters from the Deputy Chief Prosecutor is information that was not available prior to the RPD decision on July 8, 2020. The information is new and relevant to the Appellants' allegations. On review of the documents, I have no concerns as to credibility. Paragraphs 36 - 40 of the affidavit, the copies of texts from the PA's brother and the two letters are admitted. Item (e) is admitted [7] The four news articles are dated between August 1, 2019, and June 23, 2020. The articles describe the significant use of social media in the Philippines and reasons for its popularity. The Appellants submit that they were unaware that the RPD found their testimony about NS being able to locate them via social media to be speculative. For this reason, it cannot be reasonably expected that they would have provided this information to the RPD prior to the decision. I agree. The information in the articles is new and relevant to the Appellant's allegations. On review, I have no concerns as to reliability. The news articles are admitted. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.4 State protection is not available [9] The RPD found that state protection was available to the Appellants because the police were performing their duties by taking reports and investigating. The Appellants argue that state protection must be adequate and that the RPD erred by failing to consider evidence about the results of the police investigation as well as evidence of NS's connections with police and members of the justice system. I agree. Police investigation [10] As the Appellant notes, the investigation report from the XXXX Municipal Police Station into the assassination threat confirms the incident and indicates that the two hitmen have not been apprehended. The report concludes that the Appellants will be safe from harm based on their plan to leave the Philippines: Based on the foregoing facts, it shows that the incident connotes danger and precautionary measures should be undertaken to prevent any untoward incident and loss of life. The plan of spouse XXXX and XXXX XXXX to migrate abroad for their safety and some personal matters is a great means to thwart any harm and danger. With this, is recommended that in-dept investigation be conducted to unveil and identify the said unidentified gunmen for hire and closed coordination to Socorro MPS be pursued for identification and monitoring if armed group exist at Sintakan, Socorro. Likewise, let this investigation report be part of any legal paper to secure pertinent papers for the migration of XXXX XXXX XXXX XXXX XXXX and their family.5 [11] The Chief also testified that the authorities have identified that NS hired the two hitmen to kill the Appellants; however, NS has been released from jail and has not been apprehended. He further testified that the Appellants should not return to the Philippines because NS remains motivated to kill the Appellants because the PA was involved in him being charged with the sexual assault of his daughter. AOP's connections to police and the justice system [12] The Appellants testified that NS is wealthy and has significant connections with police and members of the justice system through his membership in the XXXX XXXX. The Appellants also testified that NS received preferential treatment while he was in jail, including having a cell phone, leaving the prison to go to the market and having his girlfriends spend the night with him at the prison. The PA testified that NS was called "the manager" by the guards at the jail because they received money and other benefits from him. [13] I also agree with the Appellants that country documentation6 before the RPD demonstrates that corruption among police and members of the judicial system is common and can result in impunity for offenders who are wealthy and or have personal connections. The Appellants submitted a transcript of a news report that provides an example of a prisoner receiving preferential treatment similar to the type that the Appellants testified NS received.7 [14] In the new evidence submitted, the PA states that despite reports of physical assault of the PA's sister and sexual assault on his daughters, NS has not been charged. The PA identifies a powerful politician, RA, as a close connection of NS and believes that RA is using his influence to dismiss the recent reports of ongoing physical and sexual assault.8 Copies of texts from the PA's brother9 as well as letters to the Mayor of the Municipality of XXXX10 and from the Deputy Chief Public Attorney11 corroborate that concerns about NS's physical and sexual assault of his wife and daughters have been reported to authorities. [15] I find, on a balance of probabilities, that there is credible evidence to establish that adequate state protection is not available to the Appellants with respect to the risk of harm they face from NS. Internal flight alternative is not available [16] The RPD found that there was no serious possibility that the Appellants would face a risk to life in Manila because their testimony that NS could find them through social media was speculative. The Appellants argue that the RPD ignored country documentation and other evidence that contradicts the RPD's conclusion. They also argue that the RPD misconstrued evidence and failed to consider other relevant evidence from the Chief. I agree. Appellants could be located by NS through social media [17] The PA testified that they were likely to be found by NS through social media and connections with neighbors and friends and family. The RPD dismissed the PA's testimony that in Filipino culture, new neighbors would be curious and find out who they are and where they are from. The PA also testified that social media is very popular in the Philippines and would be likely to pass the information on through social media. The RPD concluded: The panel received insufficient, reliable credible evidence to indicate [PA]'s brother-in-law would be using social media to locate the claimants.as speculative. Furthermore, the panel finds it speculative to assume the neighbours would use social media to report about their new neighbors.12 [18] The Appellants argue that country documentation before the RPD corroborated the PA's testimony about high levels of use of social media in the Philippines. The Appellants also note that several media documents before the RPD provided examples of the significant use of social media.13 I agree. [19] Given that the RPD made no credibility findings with respect to the Appellants, the RPD was required to consider evidence that supports the PA's testimony about social media use and provide rationale for finding the testimony was speculative. In essence, the RPD found that the PA's testimony was implausible. It is trite law that plausibility findings should only be made rarely because there is significant risk of the decision-maker viewing the plausibility through the lens of North American culture. [20] In assessing the news articles admitted as new evidence, I find there is ample evidence to corroborate the PA's testimony with respect to high levels of social media use and the cultural context in the Philippines. An annual report on social media use around the world identified people in the Philippines spend the most time on social media compared to others. Filipinos spend an average of 9 hours and 45 minutes online daily and are the most active on social media, averaging 3 hours and 53 minutes daily compared to the global average of two hours and 24 minutes.14 The cultural context of using social media that the PA testified about is also supported in several articles15 For Filipinos, social media is a form of connectivity that serves as a means to establish and reinforce their relationships. They care a great deal when it comes to connecting with others. Engaging in social networking sites is the number one activity among internet users as its user-generated content allows for real-time updates from people from all over the country (and beyond!).16 [21] I find that the RPD erred in concluding that the PA's testimony about how NS could locate them through social media was speculative. Evidence from the Chief of Police [22] The RPD accepted the Chief's testimony that the Appellants should stay in Canada because NS and the gunmen have not been apprehended and the death threats against them remain. However, the RPD then refers to Exhibit 6, "where the Chief recommends the claimants go to Manila or Batangas for safety reasons."17 I agree with the Appellants' submission that the RPD has mischaracterized statements in Exhibit 6 as evidence from the Chief and failed to consider evidence the Chief did provide in his testimony at the hearing. [23] Exhibit 6 is a letter from the Appellants' RPD counsel to the RPD, which describes expected evidence from witnesses at the hearing and attaches additional documents in support of the Appellants' claim. Specifically, counsel states: Today I was provided with a list of witnesses. I regret that the list is late however there was difficulty in locating the witnesses however that was done and they are able to give important evidence which corroborates the risks facing the claimants. XXXX XXXX XXXX Chief of Police Victoria Oriental Mindoro. He will testify to the possible motivation for the cousin to hire killers to attack the claimants. How he and his men rescued them when hired killers came to attack them and how he took the claimants' away in his patrol car and urged them to move to Manila or Batangas for their safety. He will also give an opinion as to the availability of state protection and long term viability of the internal flight alternative.18 [24] It is clear that this letter contains counsel's summary of expected testimony from the Chief in the upcoming RPD hearing and is not actual evidence from the Chief. The RPD erred in misconstruing this as the Chief's evidence and by relying on it to conclude that the Appellants would not face a serious risk to their lives in Manila. The RPD's finding cannot stand. [25] I have reviewed the transcript of the RPD hearing and note that the Chief did testify about the Appellants going to Manila. Specifically, he testified about the incident with the motorcycle riders: WITNESS #1: Immediately after, Your Honour, I (inaudible) and tell it to them (inaudible) managed to apprehend a motorcycle rider (inaudible) that are allegedly trying to kill the couple XXXX XXXX XXXX XXXX, but we are - we managed to rescue Mr. XXXX XXXX (inaudible) and I order him to - that we will accompany him in our (inaudible) to Manilla in order for him to be safe and get away from the motorcycle suspects that are trying to kill him. COUNSEL: Sir, was there any follow-up? Were those motorcycle suspects ever subsequently arrested or detained? WITNESS #1: On the (inaudible) we have conducted (inaudible) the same motorcycle rider suspects (inaudible) trying to kill the said couple. Also the motorcycle rider suspects that killed the former policeman (inaudible) and we also found out that (inaudible) (inaudible) manage to apprehend them because they are (inaudible) and they have so many safe houses here in (inaudible) and maybe other places (inaudible) because (inaudible) to kill someone and (inaudible) we coordinated with (inaudible) and as of now we are trying to (inaudible) also happening here in different towns in Oriental Mindoro. COUNSEL: Are there, if you know, are there many killers for hire in the Philippines? WITNESS #1: Yes, sir (inaudible) information (inaudible) and other (inaudible) by unidentified motorcycle rider suspects (inaudible) and we are devising some strategies to (inaudible) or to apprehend that motorcycle suspects because (inaudible). COUNSEL: It sounded like - no, let me retract that. Do you have any opinion as to whether if XXXX XXXX XXXX were to return to the Philippines they could live safely perhaps in a big city like Manilla? WITNESS #1: (Inaudible) that for now they should (inaudible) in Manilla (inaudible) and they must stay there in Canada for their safety because the motorcycle suspects (inaudible) to kill them are not yet apprehended and (inaudible). COUNSEL: Do you know --- WITNESS #1: So I strongly, I strongly recommend, sir, that it is better for them to stay there in Canada than to return here in the Philippines because they have lot of death threats here and maybe if they return here they might, they might be killed (inaudible).19 [emphasis added] [26] In my view, it is clear that the Chief's testimony about the Appellants going to Manila was for their safety at the time of the motorcycle incident. When asked whether he believed the Appellants could live safely in Manila if they returned now, the Chief testified that the Appellants should stay in Canada because there are still death threats and the suspects have not been apprehended. The Chief also testified that the police believe NS hired the killers because the PA helped NS's daughter to file a report about him sexually assaulting her. NS looked for the Appellants in Manila [27] I agree with the Appellants that the RPD failed to consider relevant evidence about NS's motivation to locate and harm them. The PA testified that after they arrived in Canada, they learned that NS was released from jail and went to Manila to look for them. When he could not find them, he paid for a black magic curse to be placed on the Appellants. This testimony is relevant to determining whether the first prong of the test for an IFA is met and the RPD erred by failing to consider it. The RPD also erred by failing to consider evidence from the PA's narrative and the Appellants' testimony that they moved on three occasions within the Philippines in order to be safe from NS; however, they were ultimately found. [28] I find, on a balance of probabilities, that there is a serious possibility of risk to life for the Appellants in Manila and elsewhere in the Philippines. There is no available IFA for the Appellants. Although the Appellants raised additional arguments, I find this is determinative and it is not necessary to consider additional arguments. Individual risk not faced generally by others [29] Having reviewed the RPD record, the RPD transcript as well as the new evidence admitted in this appeal, I note there is sufficient credible testimony and documentary evidence to establish that the Appellants allegations are true. They are targeted by NS, who was jailed for 6 months, after the PA supported his daughter to report to police that he sexually assaulted her. NS has hired gunmen to assassinate the Appellants and one attempt was made to kill the AA. The risk to life the Appellants face from NS is specific to them and is not a risk that others in the Philippines also share. [30] For all the above reasons, I find, on a balance of probabilities, that the Appellants face a risk to life or a risk of cruel and unusual treatment or punishment pursuant to section 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). CONCLUSION [31] The appeal is allowed. I substitute my own decision that the Appellants are persons in need of protection. (signed) Karen McGovern Karen McGovern April 23, 2021 Date 1 Subsection 110(4), Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Exhibit P-2, Appellant Record, pp. 10-26. 4Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Exhibit RPD-1, RPD Record, p. 220, Exhibit 4, p. 217. 6 National Documentation Package (NDP) for the Philippines, (April 30, 2020), item 2.1, United States, Department of State, 11 March 2020, p. 10. 7 Exhibit RPD-1, RPD Record, pp. 291-292, Exhibit 6, p. 288-289. 8 Exhibit P-2, Appellant Record, pp. 23-24. 9 Exhibit P-2, Appellant Record, pp. 316-338. 10 Exhibit P-2, Appellant Record, pp. 312-313. 11 Exhibit P-2, Appellant Record, p. 314. 12 Exhibit RPD-1, RPD Record, pp. 9-10, RPD Reasons, pp. 3-4, para 20. 13 Exhibit RPD-1, RPD Record, pp. 291-298, Exhibit 6, pp. 288-295. 14 Exhibit P-2, Appellant Record, pp. 297-298. 15 Exhibit P-2, Appellant Record, pp. 302-305, 308. 16 Exhibit P-2, Appellant Record, p. 303. 17 Exhibit RPD-1, RPD Record, p. 10, RPD Reasons, p. 7, para 22. 18 Exhibit RPD-1, RPD Record, p. 282, Exhibit 6, p. 279. 19 Transcript of (October 1, 2019) RPD Hearing, pp. 60-61. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09713 TC0-09714 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français