MC0-04427

RAD File / Dossier de la SAR : MC0-04427 MC0-04428 / MC0-04429 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 XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 4, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Laura Setzer Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I grant this appeal for the reasons that follow. [2] XXXX XXXX XXXX XXXX, his spouse, XXXX XXXX XXXX XXXX XXXX, and their daughter, XXXX XXXX XXXX XXXX (the Appellants), are citizens of El Salvador. They fear that they would be killed or seriously harmed by members of the Mara Salvatrucha gang (Maras or MS-13) if they return to El Salvador. Mr. XXXX XXXX and Ms. XXXX XXXX XXXX ran a XXXX XXXX in the city of Armenia. They allege that they were contacted by an unknown individual in July 2013 to make an extortion payment. In August, three individuals visited the salon to ask for the money, saying the deadline had passed. The individuals gave Ms. XXXX XXXX XXXX a piece of paper with a phone number on it and told her to have her husband call them. The same day, shots were fired when Ms. XXXX XXXX XXXX and her daughter left the salon for lunch. Mr. XXXX XXXX called the phone number on the paper and was told to bring the $7000 that evening. When he only brought $2000, the individuals told him the MS-13 does not play games, beat him, and gave him a week to pay the remaining sum. The Appellants closed the salon in August 2017 and stayed in their home until they left El Salvador on XXXX XXXX, 2013, except for going to the police to file a report on September 9, 2013. They travelled to Mexico and Ms. XXXX XXXX XXXX and her daughter sought asylum at the United States border. Mr. XXXX XXXX entered the United States by irregular means three days later, since he was subject to a 10-year ban on re-entry to the United States after being deported several years earlier. The Appellants crossed the border to claim refugee protection in Canada in August 2017 because they feared deportation from the United States. [3] The Refugee Protection Division (RPD) found that the Appellants' allegations did not have a nexus to any of the grounds included in the refugee Convention. In particular, it rejected their Counsel's argument that they fell within the ground of a "particular social group" as owners of a business. Therefore, the RPD examined their claim under s. 97 of the Immigration and Refugee Protection Act (IRPA), the section that deals with persons in need of protection. The RPD found that the claimants were not credible due to an inconsistency between their evidence and a police report they submitted as supporting evidence, the fact that the MS-13 did not look for them at their home after they closed the XXXX XXXX, the fact that the MS-13 had not sought to find them through family members who remain in the same town where they lived, and due to Mr. XXXX XXXX failure to claim asylum in Mexico. The RPD also found speculative, the Appellants' evidence that certain unidentified individuals, who allegedly went to visit their former house in 2017, were members of the MS-13 who were looking for them. As a result, the RPD found that there was no credible evidence to establish that the Appellants were personally victims of extortion in El Salvador. It found that any risk that the Appellants might face in returning to El Salvador does not differ from the risk faced generally by others in or from that country. [4] The Appellants challenge the RPD's findings. DECISION [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I find that the RPD erred in finding that there was a sufficient basis to rebut the presumption of truthfulness in this case. I also find that the RPD erred in finding that the risk faced by the Appellants in this case did not differ from the risk faced generally by others in or from El Salvador. PROPOSED NEW EVIDENCE The evidence presented by the Appellants is accepted [6] According to the law,2 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 the appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] 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.3 [8] The Appellants submitted as proposed new evidence: (i) a Human Rights Watch report, titled "Deported to Danger", dated February 2020, and (ii) an Insight Crime article, titled "US Deportations to El Salvador Sending Migrants to Their Deaths: Report", dated February 12, 2020, which discusses the Human Rights Watch report. [9] It is unnecessary to admit the Human Rights Watch report as new evidence as the report is now included at Tab 2.8 of the most recent version of the National documentation package (NDP) for El Salvador. Therefore, the Refugee Appeal Division (RAD) is bound to take it into consideration. The Insight Crime article is admissible as new evidence as the information, in the article, post-dates the RPD's decision, the article is authored by a credible source and the information is relevant and new. ANALYSIS OF MERITS [10] It is well established that refugee claimants, who provide their testimony under oath or affirmation, are presumed to tell the truth unless there is a valid reason to doubt the truthfulness of their testimony.4 For the reasons set out below, I agree with the Counsel that the RPD erred with respect to several of the negative credibility inferences that it drew in this case. Ultimately, I find that there was an insufficient basis on which to rebut the presumption of truthfulness in this case. I also find that the Appellants have established that they are persons in need of protection. Credibility findings Police report [11] I agree with the Counsel that the RPD member erred in drawing a negative credibility inference due to a small discrepancy between the Appellants' evidence and the content of a police report they filed regarding the threats they received from the MS-13. As noted by the RPD, Ms. XXXX XXXX XXXX testified that she took the first call from the MS-13, whereas the police report states that it was Mr. XXXX XXXX who received the first call from the MS-13. When the RPD asked Mr. XXXX XXXX about this discrepancy, he said that he told the police officer that it was his wife who received the call from the MS-13 and he did not know why the officer wrote that it was him. In my view, the RPD's focus on this discrepancy amounted to a microscopic assessment of the evidence. The rest of the report was consistent with the Appellants' evidence regarding the threats they received from the MS- 13. In these circumstances, the RPD engaged in a microscopic analysis in drawing a negative credibility inference based on whether the report said that it was Mr. XXXX XXXX or his wife who took the first call from the MS-13. This is especially the case since it was not Mr. XXXX XXXX himself who wrote the report. While he did sign the report notwithstanding the error, Mr. XXXX XXXX did testify that he did not closely review the report as he was nervous and wanted to leave the police station. [12] I note that it was clear that the Appellants had already decided to leave El Salvador by the time they made the police complaint. This may have been the RPD's real concern about the police complaint. However, Mr. XXXX XXXX explained that he wished to have the incident documented and this was the reason for his making the complaint. In my view, this explanation is sufficient to satisfactorily explain the making of the report shortly before the claimants left the country. The Appellants may also have wanted to make the complaint to support any future claims for refugee protection. That, by itself, does not make their claims not credible. Gang did not search for the Appellants at their home [13] The Appellants did not contest the negative inference drawn by the RPD due to the gang's failure to search for them during the month-long period between the time they closed their XXXX and the date on which they left El Salvador. When the RPD asked Mr. XXXX XXXX why the MS-13 did not look for them during that month-long period, Mr. XXXX XXXX replied that they lived in a gated community and they only left the house once during that month, which was to make a complaint to the police. He said he did not know why the MS-13 did not approach them during the month. The RPD found it surprising that the MS-13 would not track down the Appellants at their home, since the gang had given them a week to pay the money they had demanded. The RPD stated that it reasonably believed that, if the MS-13 were interested in the Appellants, it would have looked for them after they closed their XXXX XXXX. [14] As noted above, the Appellants did not contest this finding. While I do agree with the RPD that it is surprising that the MS-13 would not track the Appellants down at their home if what they are saying about the threats and extortion is true. However, the Federal Court has, in the past, cautioned against expecting agents of persecution, such as gangs, to behave reasonably and to draw negative inferences based on what would seem to be unreasonable or unexpected behaviour on their part. Therefore, while there was some basis for the RPD to draw a negative credibility inference due to the gang's failure to search for the Appellants at their home, such an inference must be approached with caution. No evidence gang approached the Appellants' family members in El Salvador [15] I agree with the Counsel that there is no evidentiary support for the RPD's conclusion that an absence of threats being made against Ms. XXXX XXXX XXXX family necessarily means that the gang is no longer interested in them. I note that the RPD did not expressly draw an adverse credibility inference based on the fact that the MS-13 did not approach the Appellants' family members. However, it did state that "the documentary evidence indicates that members of the Maras will seek to find their victims through any family that remains in El Salvador." In fact, the documentary evidence is not so categorical. One of the documents cited by the RPD actually state that people who do not pay the gangs put themselves and their family "at risk" of being tortured or killed.5 The other document states that gang members "can" seek retribution via family members.6 Therefore, an absence of retribution against family members, or an absence of contact with family members, is not necessarily a basis for a negative credibility inference. As noted above, the RPD did not make such an explicit finding in this case. In any event, I do not find that such a negative credibility inference is warranted in the circumstances of this case. Failure to claim asylum in Mexico [16] I agree with the Counsel that the RPD erred in drawing a negative credibility inference from Mr. XXXX XXXX failure to seek refugee protection in Mexico. The RPD did not accept as reasonable Mr. XXXX XXXX explanation that he felt Mexico was a dangerous country, that he had family members in the United States, and that he wanted to see what would happen with the asylum application that his wife had made in the United States. [17] It bears emphasizing that when assessing a claimant's reasons for not seeking asylum, the RPD is not determining whether a claimant's actions were objectively reasonable. Instead, the question that must be asked by the RPD is whether, despite what a claimant now says, they do not actually fear persecution or serious harm and this is the real reason why they did not seek refugee protection in another country. Whether an explanation given for not seeking refugee protection is satisfactory will depend, among other things, on a claimant's attributes and circumstances.7 In this case, I find that Mr. XXXX XXXX explanations for not seeking refugee protection in Mexico were satisfactory. He explained that both he and his wife have family members in the United States and that he wanted to see what would happen with his wife's application for refugee protection in the United States. [18] I would add further that it was inconsistent, for the RPD, to draw a negative credibility inference from Mr. XXXX XXXX failure to seek refugee protection in Mexico while not drawing a positive credibility inference from the Ms. XXXX XXXX XXXX actions in seeking refugee protection for herself and her daughter in the United States. At the very least, any negative inference drawn from Mr. XXXX XXXX failure to seek protection is counterbalanced by the positive inference arising from Ms. XXXX XXXX XXXX efforts to seek refugee protection in the United States. Summary on credibility of the Appellants' allegation of personal risk [19] As detailed above, the RPD erred with respect to many of the reasons that it did not find credible the Appellants' account of the events they experienced in El Salvador at the hands of the MS-13. I found above that there was some basis for the RPD's unchallenged negative credibility inference arising from the MS-13's failure to seek the Appellants in the month-long period they spent in their home after closing their salon and before leaving El Salvador. However, I also noted that such an inference must be approached with caution. In my view, any negative inference that could be drawn because of the MS-13's failure to track the Appellants down at their home in the month before they left El Salvador is insufficient to ground a general finding of non-credibility. Therefore, I do not find that there were sufficient reasons to find the presumption of truthfulness rebutted in this case. [20] I say this notwithstanding the fact that I did have some concerns about some of the documents produced by the Appellants in this case. For example, the Appellants submitted as evidence a letter that purports to have been written by a Chief of Investigations of the National Civil Police in the municipality in which the Appellants' XXXX was located. The letter states that the city where the Appellants' XXXX is located is a dangerous city and it discusses the level of crime and gang activity in the city. I have serious doubts as to whether a Chief of Investigations would provide such a letter. However, the RPD did not question the Appellants about the letter and I do not find that any concerns I may have about it are sufficient to rebut the presumption of truthfulness in this case. Findings regarding "generalized risk" [21] I agree with the Counsel that the RPD erred in finding that the claimants simply fear extortion, crime or recruitment in El Salvador and that these risks are generally faced by other citizens of El Salvador. [22] I do agree with the RPD that, just because a claimant is personally at risk does not mean that the risk they face is not one faced generally by others in or from that country. In this case, the RPD mischaracterized the risk feared by the Appellants as a risk of extortion, crime, or recruitment. In fact, what the Appellants fear is that the MS-13 will carry through on their threats of killing the Appellants if they do not pay the money that they demanded. [23] For the reasons set out above, I find that the Appellants' account of their personal targeting by the MS-13 must be considered credible due to the absence of valid reasons to rebut the presumption of truthfulness in this case. Therefore, it must be accepted that the MS-13 approached them to demand extortion money and to threaten them with death if they do not pay. The MS-13 also beat up Mr. XXXX XXXX when he failed to pay the full amount owed to them and asked about them when their apartment was rented out to new tenants after they had left El Salvador. In my view, the risk that the Appellants would face personally if they return to El Salvador differs from the risk faced generally of others in or from El Salvador. [24] Based on the above, I find that the Appellants have established, on a balance of probabilities, that they would be subjected personally to a risk to their lives or a risk of cruel and unusual treatment or punishment that differs from the risk faced generally by others in or from El Salvador. Based on the evidence in the NDP for El Salvador, I do not find that this risk would have disappeared simply due to the passage of time.8 State protection and internal flight alternative [25] Based on the information contained in the NDP for El Salvador, I find that the Appellants likely would not have the benefit of adequate state protection from the MS-13 in El Salvador. I also find that there is no viable internal flight alternative for them in El Salvador, given the MS-13's presence throughout the country and the ability of gang members to track people across the country. [26] Given the findings set out above, it is unnecessary for me to address the other arguments made by the Counsel in the appeal memorandum. CONCLUSION [27] For the above reasons, I grant the appeal and substitute my own determination that the Appellants are persons in need of protection. (signed) Jo-Anne Pickel Me Jo-Anne Pickel December 4, 2020 Date JP/cl 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 110(4). 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 5 RAD-1, National documentation Package (NDP) for El Salvador (November 30, 2020), Tab 7.2, at p. 9. 6 RAD-1, National documentation Package (NDP) for El Salvador (November 30, 2020), Tab 7.10, at p. 8. 7 See discussion in Zeah v. Canada (Citizenship and Immigration), 2020 FC 711, at para 61. Although the court in Zeah was dealing with the issue of delay in seeking protection, in my view, the same principles apply to all cases in which the claimant has not sought protection at the first opportunity such as when a claimant fails to seek protection in another country through which they have travelled on their way to Canada. 8 See, for example, RAD-1, National documentation Package (NDP) for El Salvador (November 30, 2020), Tab 2.8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-04427 MC0-04428 / MC0-04429 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