TB8-09373

RAD File / Dossier de la SAR : TB8-09373 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision October 20, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal John W Grice Conseil de la personne 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 dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX XXXX is a citizen of El Salvador. XXXX XXXX XXXX XXXX fears being persecuted or seriously harmed by gangs if she returns to El Salvador. In particular, she testified that she fears the MS-13 gang and a gang member named XXXX XXXX XXXX XXXX XXXX XXXX alleges that, in 2000, two gang members, XXXX and another gang member who is now deceased, entered her family's second home and robbed it. According to XXXX XXXX XXXX XXXX, her grandmother and others in the community told her that the gang members intended to harm her on the day in question but that they decided to rob the house instead when she was not there. XXXX XXXX XXXX XXXX mother left El Salvador for the United States several years before this incident. Two years after the incident, in 2002, XXXX XXXX XXXX XXXX joined her mother in the United States and lived there for fifteen years until she claimed refugee protection in Canada in 2017. In 2015, XXXX XXXX XXXX XXXX married a man who is originally from Guatemala but who has permanent resident status in Canada. However, she did not claim refugee status in Canada or take any other steps to gain status in Canada until immigration authorities showed up at her workplace in the United States in XXXX 2017. In her Basis of Claim form, XXXX XXXX XXXX XXXX states that it was at this point that she and her husband decided that they could not wait any longer for XXXX XXXX XXXX XXXX status in the United States to become regularized so they decided to come to Canada. XXXX XXXX XXXX XXXX claimed refugee protection in XXXX 2017 and her spouse has also filed an application to sponsor her. [3] The RPD rendered an oral decision rejecting XXXX XXXX XXXX XXXX claim on the day of the hearing. The RPD had several concerns about the credibility of XXXX XXXX XXXX XXXX account of events due to an omission and inconsistency in her evidence relating to the identification of the gang she feared and the year that her family's home was broken into. The RPD found that there was insufficient credible evidence that the break-in that she claimed occurred 20 years ago in fact occurred, let alone that the intention of the gang members was not to just rob the house but instead to harm XXXX XXXX XXXX XXXX. In addition, the RPD drew an adverse inference as to credibility from XXXX XXXX XXXX XXXX failure to claim refugee protection in the United States and her 14-year delay in claiming refugee protection in Canada, including two years while she was married to a person with permanent resident status in Canada. Finally, RPD found that XXXX XXXX XXXX XXXX XXXX did not have the profile of someone who would face a serious possibility of gender-based persecution if she returns to El Salvador due to her lack of credibility and her failure to tie her circumstances to the general country conditions. XXXX XXXX XXXX XXXX challenges the RPD's findings. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 In rendering this decision, I have been guided by the principles set out in the Gender Guidelines.2 I can certainly understand XXXX XXXX XXXX XXXX fear of returning to a country she has not lived in for half of her life especially given the high rates of general criminality due to gang activity in El Salvador. However, I find that the RPD was correct to conclude that the evidence does not establish that XXXX XXXX XXXX XXXX meets the requirements to either be a Convention refugee or a person in need of protection. [5] I agree with XXXX XXXX XXXX XXXX counsel that the RPD erred in focusing on microscopic details in her evidence to find that she failed to credibly establish that the break-in at her family's home 20 years ago actually occurred. However, the RPD was correct to find that XXXX XXXX XXXX XXXX failed to establish, on a balance of probabilities (that is, that it is more likely than not), that the gang members who robbed her home at the time were in fact seeking to harm her rather than simply to rob the place. More importantly, she has failed to establish a serious possibility that these same gang members or their associates would seek to target her now 20 years later as retaliation for their inability to harm or recruit her 20 years ago. [6] Finally, I agree with the RPD that, although the National Documentation Package for El Salvador does indicate that there exists a high rate of violence against women in the country, it does not establish that all Salvadoran women are refugees simply because of their gender. In each case, one must examine the profile of the claimant. In this case, there was no evidence that XXXX XXXX XXXX XXXX has a subjective fear of persecution by anyone other than the gang members who broke into her family's home 20 years ago. Further, I agree with the RPD that there is insufficient evidence that XXXX XXXX XXXX XXXX would face a serious possibility of gender-related persecution3 at the hands of gangs in general or anyone else due to her gender profile. Likewise, there is insufficient evidence to establish that it is more likely than not that gangs in general or anyone else would subject XXXX XXXX XXXX XXXX personally to a risk to her life or a risk of any of the other forms of serious harm that would make her a person in need of protection.4 ANALYSIS RPD erred in finding XXXX XXXX XXXX XXXX account of the break-in not credible Omission and inconsistency in XXXX XXXX XXXX XXXX evidence [7] I agree with XXXX XXXX XXXX XXXX counsel that the RPD erred in drawing an adverse inference as to credibility based on an omission and an inconsistency in her evidence. [8] I agree with Counsel that the RPD erred in drawing an adverse credibility inference from the fact that XXXX XXXX XXXX XXXX did not specifically name the MS-13 gang in her Basis of Claim form but instead referred to the gang as the "Maras." The "Maras" is a common way for persons from El Salvador to refer to gangs in that country. In the circumstances of this case, I do not find that the fact that XXXX XXXX XXXX XXXX did not specifically refer to the gang as the MS-13 leads to an inference that her allegation that gang members broke into her family home was not credible. [9] Likewise, I agree with Counsel that, given the significant passage of time, the RPD erred in drawing a negative credibility inference based on the fact that XXXX XXXX XXXX XXXX testified that the break-in occurred in 2000 whereas she stated that it occurred in 2001 in her Basis of Claim form. This inconsistency was minor and the RPD engaged in a microscopic analysis in drawing a negative credibility inference because of it. Simply put, the fact that XXXX XXXX XXXX XXXX was off by a year when testifying about an incident that occurred 20 years ago is not a valid reason to infer that she is lying about the incidents having occurred. Overall, I find that the RPD engaged in a microscopic analysis of the omission and inconsistency above to find that XXXX XXXX XXXX XXXX testimony about the break-in occurring was not credible. XXXX XXXX XXXX XXXX failure to claim asylum in the United States [10] I agree with Counsel that the RPD erred in drawing an adverse credibility inference from XXXX XXXX XXXX XXXX failure to claim asylum in the United States. I agree with counsel that XXXX XXXX XXXX XXXX gave a satisfactory explanation for not claiming asylum after arriving in the United States. [11] When the RPD asked XXXX XXXX XXXX XXXX why she had not claimed asylum when she arrived in the United States, XXXX XXXX XXXX XXXX testified that she did not know anything about the process because she was a minor at the time and that she simply followed her mother's advice. When the RPD went on to ask XXXX XXXX XXXX XXXX whether her mother submitted an application to sponsor her, XXXX XXXX XXXX XXXX said that her mother had told her that she had but that XXXX XXXX XXXX XXXX did not have a copy of the application. The RPD then drew an adverse credibility inference from XXXX XXXX XXXX XXXX failure to obtain a copy of the sponsorship application. It also found that, despite her young age, it was not reasonable that XXXX XXXX XXXX XXXX would not have claimed asylum during the one-year period in which she was eligible to make an affirmative asylum claim after arriving to the United States. [12] I agree with Counsel that XXXX XXXX XXXX XXXX provided a satisfactory explanation for her failure to claim asylum in the United States. It bears emphasizing that the issue here is not whether XXXX XXXX XXXX XXXX acted reasonably in not applying for asylum in the United States. The issue is whether her failure to do so casts valid doubts on her subjective fear of returning to El Salvador as well as the credibility of the risk she alleged if she returns to that country. To answer the latter question, it is necessary to take into account all of the surrounding circumstances. XXXX XXXX XXXX XXXX was XXXX at the time that she entered the United States and she was XXXX at the point at which the one-year period during which she was eligible to claim asylum expired. She also testified that she knew little of the process. In these circumstances, I find it understandable that XXXX XXXX XXXX XXXX would defer to her mother's advice which did not include claiming asylum. In my view, the RPD erred in drawing a negative credibility inference from XXXX XXXX XXXX XXXX failure to obtain a copy of the sponsorship application that her mother told her she had filed 20 years ago. Whether or not XXXX XXXX XXXX XXXX mother did try to sponsor her, I find that it was a satisfactory credible explanation for XXXX XXXX XXXX XXXX to say that, given her young age, at the time she deferred to her mother's decision-making on the issue. Moreover, XXXX XXXX XXXX XXXX had just arrived to the United States whereas her mother had been living there for several years by that point. Given this satisfactory explanation, I find that the RPD erred in drawing a negative credibility inference based on XXXX XXXX XXXX XXXX failure to claim asylum in the United States. Delay in travelling to Canada to claim refugee protection [13] I disagree with Counsel that the RPD erred in drawing a negative credibility inference from XXXX XXXX XXXX XXXX delay in claiming refugee protection in Canada. As noted by the RPD, XXXX XXXX XXXX XXXX lived in the United States for 14 years before coming to Canada to claim refugee protection, including two years while she was married to her spouse who has permanent resident status in Canada. [14] The Federal Court has summarized the governing principles concerning the significance of delay in seeking refugee protection in a number of cases and most recently in Zeah.5 It is well established that delay in seeking refugee protection is not determinative of the claim but it is a factor the decision maker may take into account in assessing the claim's credibility. A delay in seeking protection can raise doubts about the validity of a claim because one expects that a claimant who genuinely fears persecution or faces a serious risk in their country of origin would seek protection at the first opportunity. When a claimant has not sought protection at the first opportunity, the decision maker must consider whether a claimant has provided a satisfactory explanation for their failure to do so. When considering whether an explanation is satisfactory, a decision maker must take into account the facts of the specific case, including the claimant's personal attributes and circumstances and his or her understanding of the immigration and refugee process.6 [15] When the RPD asked XXXX XXXX XXXX XXXX why she did not travel to Canada to seek refugee protection sooner, she replied that she did not want to travel to Canada alone. I agree with the RPD that this is not a satisfactory explanation for failing to take steps to claim refugee protection if XXXX XXXX XXXX XXXX faced the kind of serious risk she alleged in El Salvador. It is particularly unsatisfactory as an explanation for her two-year delay in coming to Canada after she married her spouse who has permanent resident status in Canada. When asked about this period of time, XXXX XXXX XXXX XXXX testified that she had sought legal advice and was told that her spouse would have to come to Canada to begin the process to sponsor her and the couple did not want to be separated. XXXX XXXX XXXX XXXX counsel repeats this explanation in the appeal memorandum. The RPD was correct to find that this does not reasonably explain a significant delay in taking steps to claim refugee protection if one were truly facing the kind of risk that XXXX XXXX XXXX XXXX alleged in El Salvador. While it is true that XXXX XXXX XXXX XXXX had two sons from prior relationships in the United States, a reluctance to leave her sons-while understandable-does not satisfactorily explain her delay in travelling to Canada to claim refugee protection. This is especially the case as one continues to live with his American father and the other ended up joining XXXX XXXX XXXX XXXX in Canada. [16] I understand that XXXX XXXX XXXX XXXX was likely facing a number of different options that did not seem ideal to her at the time. However, I do not think the RPD erred in finding that her significant delay in claiming refugee protection in Canada and her decision to continue living illegally in the United States adversely affected, at least to some extent, the credibility of her claim regarding the degree of risk she would face if she were to return to El Salvador. Having said that, XXXX XXXX XXXX XXXX delay in claiming refugee status in Canada is not determinative of her claim. It is simply a factor the RPD was correct to take into account in assessing the credibility of her claim. Summary on issue of credibility [17] Taking account all of the above, I find that the RPD erred in finding that there were valid reasons to rebut the presumption of truthfulness7 in this case. In particular, I find that there were insufficient valid reasons not to find credible XXXX XXXX XXXX XXXX account of the break-in at her family home 20 years ago. However, for the reasons detailed below, I find that the RPD was correct to find that there was insufficient evidence to establish that the gang members who broke into her family home did so with the intention of harming her rather than to simply rob the place as they did. RPD correct that evidence insufficient to establish that XXXX XXXX XXXX XXXX was the target of the break-in [18] While Counsel challenges the RPD's finding that the break-in did not occur, he does not advance any arguments regarding the RPD's additional finding that there was insufficient evidence that the intention of the gang members was not just to rob the family home but to abduct or harm XXXX XXXX XXXX XXXX. In my view, this finding is correct. In her Basis of Claim form, XXXX XXXX XXXX XXXX stated that her mother and grandmother knew that the gang members were after her rather than simply seeking to rob the family's second home even though that is what they indicated in the police complaint that her grandmother filed about the incident. XXXX XXXX XXXX XXXX stated that neighbours had told her grandmother who broke into the house. In her testimony at the hearing, XXXX XXXX XXXX XXXX said that the gang members expected her to be in the house and, when she was not there, they robbed it.8 None of the documentary evidence filed by XXXX XXXX XXXX XXXX establishes that the Maras were seeking her rather than just intending to rob the place as they did. For example, the statement from XXXX XXXX XXXX XXXX mother simply states that the gang members' goal that day was to get her daughter without setting out the basis for this belief. In my view, the RPD was correct to find that the evidence in this case was insufficient to establish that it was more likely than not that the gang members were seeking to harm XXXX XXXX XXXX XXXX the day that they broke into her family's second home rather than simply wanting to rob the place. [19] Given that there is insufficient evidence to establish that the members of the MS-13 gang broke into one of XXXX XXXX XXXX XXXX family homes to harm her, there is insufficient evidence that is capable of establishing that XXXX XXXX XXXX XXXX would face a forward-looking risk at the hands of the MS-13 gang today. The break-in was the central event that XXXX XXXX XXXX XXXX relied upon to establish that she would be at risk at the hands of the MS-13 who would seek retaliation against her if she returned to El Salvador today. Although XXXX XXXX XXXX XXXX did testify that her grandmother filed a complaint with the police, she said that her grandmother did not pursue the matter out of a fear of retaliation. [20] In light of all of the above, there is insufficient evidence to establish a serious possibility that the MS-13 members who broke into her family home, or their associates, would persecute XXXX XXXX XXXX XXXX if she returned to El Salvador today. There is also insufficient evidence on which to establish that it is more likely than not that these same gang members would subject XXXX XXXX XXXX XXXX personally to any of the kinds of serious harm that would make her a person in need of protection if she returns to El Salvador. Risk of gender-based persecution Errors by the RPD [21] I agree with Counsel that the RPD failed to consider the totality of XXXX XXXX XXXX XXXX profile altogether rather than separating out different parts of her profile and considering them separately. The RPD's analysis of XXXX XXXX XXXX XXXX risk of persecution focused on her gender and her age, without also factoring in that she would be returning to El Salvador alone after having spent more than half her life in the United States. In addition, XXXX XXXX XXXX XXXX has no immediate family remaining in El Salvador and there was no evidence that she continued to have any extended family or friendship networks there. It was an error not to consider all elements of XXXX XXXX XXXX XXXX profile in evaluating whether she would face a serious possibility of persecution if she returns to El Salvador. [22] In addition, I agree with Counsel that the RPD erred in failing to examine all of the evidence contained in the National Documentation Package for El Salvador but instead focusing on, and dismissing, the one article submitted by XXXX XXXX XXXX XXXX counsel. That said, I would note that the RPD's focus on the article likely arose due to the fact that Counsel had, himself, placed a heavy reliance upon it at the hearing. However, the RPD is presumed to be aware of all of the country conditions evidence contained in the National Documentation Package and therefore all of the country conditions evidence must be taken into account when assessing a claimant's risk of persecution if they were to return to their country of origin. The fact that the RPD did not mention any of the other evidence on gender-related violence gives the impression that the RPD did not in fact take this evidence into account. [23] Also, due to the findings above, I find that the RPD erred in relying upon what it saw as a lack of credible evidence that could tie XXXX XXXX XXXX XXXX allegations to the objective country conditions evidence about the situation faced by women in El Salvador. Evaluation of risk of persecution arising from XXXX XXXX XXXX XXXX gender profile [24] It is important to note at the outset that XXXX XXXX XXXX XXXX provided no evidence of any subjective fear of gender-based persecution from anyone in El Salvador other than her fear of the gang members who broke into her family home 20 years ago, one of whom is now deceased. She did not mention a fear of persecution solely based on her gender in her Basis of Claim form and when the RPD asked her at the hearing if she feared anyone other than the two gang members who broke into her family home, she said, "no."9 In my view, any argument related to gender-based persecution could be rejected due to a lack of evidence of her subjective fear of such persecution. [25] In any event, I find that the objective evidence in this case also does not establish that XXXX XXXX XXXX XXXX would face a serious possibility of gender-related persecution if she returns to El Salvador. Counsel argues that XXXX XXXX XXXX XXXX would be returning to El Salvador with the objective risk of extortion as a single woman without the protection of any immediate family members. Counsel also argues that XXXX XXXX XXXX XXXX would be at risk of persecution due to the high rate of gender-based violence in El Salvador. [26] While it may well be true, as noted by counsel, that XXXX XXXX XXXX XXXX would face a risk of extortion as a person returning from abroad, that risk is not specifically related to her gender. As found by the RPD, it is a risk faced by many persons who are perceived to be wealthy because they have lived abroad or have family abroad. Therefore, this risk of extortion does not differ from the risk faced generally by others in or from El Salvador.10 [27] With respect to the risk XXXX XXXX XXXX XXXX faces of being subjected to violence against her due to her gender, it is difficult to assess the risk of such violence since XXXX XXXX XXXX XXXX never alleged a fear of such violence to begin with. Counsel does not point to any documentation that would support his argument that XXXX XXXX XXXX XXXX would face a serious possibility of gender-based violence. He simply argues that El Salvador has one of the highest rates of gender-based violence in the world and that gang rapes and femicides are at an "epidemic level." [28] It is accurate to say that the National Documentation Package indicates that the rate of gender-based violence in El Salvador is one of the highest in the world and that sexual violence against women is widespread.11 One research report from 2018 contained in the National Documentation Package for El Salvador indicates that the majority of acts of violence against women are carried out by family and community members.12 Sexual violence, which accounts for 25% of violent acts in El Salvador in 2015 is mostly experienced in the home environment. Approximately 70% of perpetrators of sexual violence know the victim and 20% are family members.13 XXXX XXXX XXXX XXXX profile does not place her at a serious possibility of family or community violence as there is no evidence that her partner would be accompanying her to El Salvador and there is no evidence that points to a risk for XXXX XXXX XXXX XXXX of any such violence. [29] Several sources also indicate that much of the violence and the killings of women occur in connection with the ongoing gang conflict in the country.14 For example, as noted in the National Documentation Package, during disputes between gangs, women are often caught in the crossfire with girlfriends, sisters and mothers being targeted by rival gangs or when a member betrays their gang.15 In addition, young women and girls are often preyed upon by gang members seeking girlfriends.16 [30] Several factors regarding XXXX XXXX XXXX XXXX profile would increase the possibility that she would face gender-related persecution, especially by gangs, if she returns to El Salvador. There was no evidence that XXXX XXXX XXXX XXXX spouse would be accompanying her back to El Salvador as he is originally from Guatemala and a Canadian permanent resident. Therefore, the available evidence indicates that she would be returning on her own. Moreover, she would be returning to the country after having spent most of her life abroad. This situation would only be exacerbated by the fact that she has no family remaining in El Salvador. [31] While these parts of XXXX XXXX XXXX XXXX profile likely would increase the possibility that she would face gender-related persecution, especially by gangs, if she returns to El Salvador, other elements of her profile do not fit the profile of women and girls who are particularly vulnerable to gender-based persecution or sexual violence in El Salvador. For example, while XXXX XXXX XXXX XXXX is still young in her mid-thirties, the National Documentation Package tends to indicate a greater likelihood that women and girls would be preyed upon at younger ages and in fact as young as their early teens.17 Also, as noted by the RPD, XXXX XXXX XXXX XXXX is married and has two children and this does not fit the profile of women that would be preyed upon by gang members who are seeking girlfriends. In addition, XXXX XXXX XXXX XXXX has never been involved with any gang members nor was there any evidence that she might be targeted because anyone in her family was a gang member. Also there was insufficient evidence that there would be a reason why gang members would want to retaliate against her or perceive her to have disrespected the gang given that she failed to establish that the gang members who robbed her family home 20 years ago did so to target her. In addition, as noted above, her grandmother never did follow up on the complaint she made to the police about the incident. [32] Overall, I find that the evidence is insufficient to establish that XXXX XXXX XXXX XXXX would face a serious possibility of gender-related persecution at the hands of gangs, or anyone else, if she were to return to El Salvador. I can certainly understand XXXX XXXX XXXX XXXX fear of returning to El Salvador due to the general level of gang criminality. However, I agree with the RPD that there is sufficient evidence to establish that she would face a serious possibility of persecution based on her gender at the hands of gangs or anyone else in El Salvador. She has also not established that it is more probable than not that she would be subjected personally to any of the kinds of serious harm that would make her a person in need of protection at the hands of the gang members who broke into her family home or anyone else if she returns to El Salvador. CONCLUSION [33] For the above reasons, I dismiss the appeal and confirm the decision of the RPD that XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel October 20, 2020 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Guideline 4-Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guidelines). 3 Section 96 of the Immigration and Refugee Protection Act. 4 Section 97 of the Immigration and Refugee Protection Act. 5 Zeah v. Canada (Citizenship and Immigration), 2020 FC 711 at para. 61. 6 Ibid. 7 Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (FCA). 8 Audio-recording of RPD hearing 34:50. 9 Audio recording of hearing, 40:00 (approximately). 10 Immigration and Refugee Protection Act, subpara. 97(1)(b)(ii); Rodriguez Perez v. Canada (Citizenship and Immigration), 2009 FC 1029. 11 This was the case for the National Documentation Package in place at the time of the RPD hearing and the current version of the National Documentation Package. See generally Tab 7.14 in the National Documentation Package for El Salvador (September 29, 2017) and Tabs 5.1, 5.5, 5.6, 5.7, 7.14 in the National Documentation Package for El Salvador (March 21, 2020). 12 Tab 5.5 of the National Documentation Package for El Salvador (March 21, 2020) at p. 2. 13 Ibid. 14 Tab 5.5 of the National Documentation Package for El Salvador (March 21, 2020) at pp. 1 and 2; Tab 5.6 of the National Documentation Package for El Salvador (March 31, 2020) at p. 3. 15 Tab. 7.14 of the National Documentation Package for El Salvador (September 29, 2017, and March 21, 2020) at p. 14. 16 Ibid. 17 Tab 5.6 of the National Documentation Package for El Salvador (March 31, 2020) at p. 4; Tab 7.13 of the National Documentation Package for El Salvador (September 29, 2017, and March 21, 2020) at p. 24. Tab. 7.14 of the National Documentation Package for El Salvador (September 29, 2017, and March 21, 2020) at p. 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09373 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