VB8-06610

RAD File / Dossier de la SAR : VB8-06610 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision March 18, 2019 Date de la décision Panel Michael Gardiner Tribunal Counsel for the person(s) who is(are) the subject of the appeal Robert J Kincaid Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (Appellant), a citizen of Honduras, appealed a decision of the Refugee Protection Division (RPD), dated October 16, 2018, rejecting her claim for refugee protection. DETERMINATION [2] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),1 the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. BACKGROUND AND OVERVIEW OF APPEAL [3] The determinative issues in this appeal is whether the RPD erred in its consideration of section 96 of IRPA and whether a viable Internal Flight Alternative (IFA) exists for the appellant in Honduras. [4] The Appellant's history and alleged fear of persecution are set out in her Basis of Claim (BOC) form and in the RPD Record and need not be repeated here. RPD Decision [5] The RPD found the Appellant established her identity and that she is a citizen of Honduras. [6] The RPD made negative inferences about the Appellant's credibility and her subjective fear of persecution based on her handling of her husband's attempt to contact her at her gated community, her failure to claim refugee status in the USA, and the fact that she did not use a mobile phone equipped with voice mail to avoid unwanted calls from her ex-husband. [7] The RPD accepted that the Appellant's ex-husband was physically, sexually and emotionally abusive to her in the past. However the RPD found that the Appellant had not established that her ex-husband had the means and motivation to pursue her in the proposed IFA.2 Appellants' Arguments [8] The Appellant argues that the RPD erred (a) in its section 96 analysis of the Appellants subjective fear of harm at the hands of her ex-husband and (b) in its determination that Roatan in the Bay Islands Department of Honduras would be an IFA.3 New Evidence and Oral Hearing [9] The appellant has not submitted new evidence under section 110(4) of the IRPA nor has she sought an oral hearing under section 106 of the IRPA. ROLE OF THE RAD [10] The RAD is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. No deference to the RPD's credibility assessment [11] I have conducted an independent assessment of the evidence and arguments, which included listening to the complete audio recording of the RPD hearing. In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it, therefore the standard of correctness applies. ANALYSIS [12] In conducting my independent analysis, I am guided by the Chairperson Guideline 4 : Women Refugee Claimants Fearing Gender-Related Persecution. In the framework of analysis, decsion makers are required "to determine whether the claimants fear of persecution is well-founded. This includes an assessment of the evidence related to the ability or willingness of the state to protect the claimant and, more generally the objective basis of the claim." 4 [13] The Appellant alleged in her BOC and in her oral testimony before the RPD that she had been subjected to physical, sexual and emotional abuse at the hands of her ex-huband in the past. I agree with the RPD finding that she had suffered this abuse. The RPD erred in finding that the police report and written testimony letters that the Appellant submitted did not assist to substantiate her claim of abuse.5 I find that this documentary evidence serves to further establish the pattern of abuse alledged by the Appellant. [14] I find that the Appellant's fear of future persecution from her ex-husband is well-founded given the history of past abuse and his ongoing threats to cause her further harm. [15] Based on the evidence in the National Documentation Package (NDP), Honduras, April 30, 2018, I also find that the Honduras is unable or unwilling to protect the Appellant. The absence of state protection is considered in the IFA analysis that follows. The RPD erred in its credibilty assessment [16] The RPD drew negative credibility inferences from three particular issues: * a 2015 Christmas Eve incident when her ex-husband unsuccessfully attempted to contact her, * her failure to claim refugee status in the United States, and * the fact that she took a phone call from her husband on her mobile phone which was not equipped to send calls to voice mail. [17] I find that the RPD erred in its analysis of an attempt by her ex-husband to contact her on Christmas Eve 2015. In its decsion, the RPD refers to the Appellant allowing contact with her ex-husband which the RPD finds damaging to her claim.6 The Applellant testified before the RPD that she in fact prevented contact on this occasion by advising the guards at the gated community to deny access to her ex-husband. The Appellant testified that she provided the guards with a list of persons who were to be allowed access, all others were to be challenged and only to be admitted with explicit permission. I find that the RPD analysis is not supported by the evidence. [18] The RPD drew a negative inference from the claimant's failure to make a refugee claim while in the USA on one of her many trips there from 2008 to 2016.7 The Appellant made her living XXXX XXXX in the United States and then XXXX XXXX XXXX XXXX XXXX in Honduras, hence her frequent trips to the USA. The Appellant stated in testimony to the RPD that she was trying to lead a normal life, that she felt good because she was working and her business was going well. The Appellant testified that she hoped nothing bad would happened. The RPD notes that "the claimant did not allege that anything relating to 'battered wife syndrome' explained her behaviour."8 The Gender Guidelines recognize that battered wife syndrome is a consideration in domestic abuse situations in Canadian jurisprudence.9 The syndrome regognizes that victims of domestic violence and sexual abuse may experience a complex and evolving perception of their personal situation relative to the abuse before taking steps to end the abuse. The behaviour pattern exhibited by the Appellant in delaying taking irrevocable steps to end the abuse such as claiming refugee protection in another country is consistent with characteristics of battered wife syndrome. I do not take a negative inference. [19] The RPD erred when it drew a negative inference from the Appellant's failure to have considered a mobile phone with voicemail as a means of protection from her husband. I find the Appellant credible when she says that she answered a private number thinking it was from someone other than her ex-husband. I do not take negative inference from the absence of voice mail capability on the Appelant's phone when her ex-husband called her. [20] I find the Appellant to be overall credible. The RPD erred in finding the Appellant did not have a subjective fear of persecution [21] The RPD accepted that the Appellant suffered repeated physical, sexual and emotional abuse from her ex-husband, including rape. In her BOC narrative and in her testimony before the RPD, she consistently stated that she feared her ex-huband would rape or kill her if he had a chance to do so in the future. In her testimony she stated that there is no safe place for her in Honduras.10 Given the past behaviour of her ex-huband and his threats, I find that the Appellant has a subjective fear of persecution. The RPD erred in its IFA analysis [22] The Appellant challenges the correctness of the RPD's IFA analysis. The key concepts concerning IFA come from two cases11: The adjudicating panel must be satisfied, on a balance of probabilities, that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, subjected to a risk to life or to cruel and unusual treatment or punishment, or a danger of torture in the IFA and, (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for her to seek refuge there. [23] The Appellant argues that the RPD erred in its evaluation of the proposed IFA by not considering evidence to support the Appellant's belief that her ex-husband could locate her in Roatan through his contacts with the police.12 The Appellant further alleges that the RPD erred that the IFA is inherently unreasonable due to her history of sexual assault because she will still be exposed to a relatively high rate of rape, assault and murder. [24] The RPD has proposed an IFA location of Roatan in the Bay Islands Department of Honduras.13 It is common sense that an IFA is often more likely to be available in larger urban centres with populations over 1 million. I find that the appellant, a business woman, is unlikely to go unnoticed in a city such as Roatan with a population of under 50,000 in a Department with a population of less than 70,000. I also find that state protection capacity in a relatively small centre would be considerably weaker than those that could be available in a larger urban area. [25] It is impossible to determine what may be in the mind of an agent of persecution, in this case the Appellant's ex-husband. However I find his past assaults and rapes of the Appellant, and his ongoing threats to kill her, provide convincing evidence to establish that he would be motivated to locate her in Roatan. He has pursued her within Honduras in the past, locating her in San Pedro Sulla and subsequently raping her. If he had a chance to do so, it is probable that her ex-husband would attempt to assault her, rape her and possibly to kill her. [26] The NDP demonstrates that state protection is virtually non-existent throughout Honduras for victims of domestic violence and gender-based crimes. Perpetrators of rape and femicide enjoy virtual immunity and seldom face justice. It also shows that the police in Honduras are often complicit in crimes, particularly gender-based crimes. Evidence has established that the Appellant's ex-husband has a cousin in the police. [27] I find that, on a balance of probabilities, the Appellant faces a serious possibility of persecution in Roatan. The IFA fails on the first prong of the test, therefore it is not relevant to consider the reasonableness of the proposed IFA. CONCLUSION [28] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Michael Gardiner" Michael Gardiner March 18, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). 2 RPD Record (RPDR), Reasons for decision, para 25. 3 Appellant's Record (AR), p.31 para 12. 4 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996 p.12 point 3. 5 RPDR, Reasons for decision, para 38. 6 RPDR, Reasons for decision, para 31. 7 RPDR Reasons for decision, paras 35 and 36. 8 RPDR Reasons for decision, para 31. 9 Guideline 4, D.3, footnote 31. 10 Audio CD, 1:16. 11 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA) and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 12 AR, p.31, para 12. 13 RPDR, Reasons for Decision, p.13 para 39. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-06610 RAD.25.02 (September 18, 2018) Disponible en français 8 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 (September 18, 2018) Disponible en français