VB9-08112

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 File / Dossier de la SAR : VB9-08112, VB9-08113, VB9-08114, VB9-08115 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision January 30, 2020 Date de la décision Panel Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal Gabriel Ukueku Conseil(s) (de la/des) personne(s) 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 OF THE APPEAL [1] XXXX XXXX XXXX XXXX, and his sons, XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX (the Appellants) are citizens of Chile appealing against the decision of the Refugee Protection Division (RPD) that they are neither "Convention refugee(s)" nor "person(s) in need of protection". [2] I allow this appeal, set aside the determination of the RPD and am substituting with my own determination. The Appellants are "person(s) in need of protection".1 [3] Based on my review of the evidence in the file, I conclude that the RPD member erred in her determination of a viable internal flight alternative (IFA) in Valparaiso, Chile. [4] I find that the Appellants would be at risk from members of a drug-trafficking organization if they relocated to the proposed IFA, or anywhere else in Chile, because of the drug dealer's threat against the Appellants. I also find that they could not receive adequate protection from the police. Background2 [5] The Appellants filed individual narratives accompanying their Basis of Claim forms (BOC) and Mr. XXXX, XXXX and XXXX testified at the RPD hearing. [6] They fear being killed by members of a drug-trafficking gang. Their uncle XXXX was part of this gang and lived with them for a number of years. [7] Mr. XXXX wife left him in 2006, and he has been the sole parent to the three boys since then, besides his parents taking care of the boys while Mr. XXXX was in Canada. [8] Mr. XXXX came to Canada in 2009 after accepting a work proposal. He brought his children to Canada in XXXX 2013 on visitors' visas. [9] Before they came to Canada, XXXX, XXXX and XXXX lived in their grandparents' house along with their uncle XXXX. XXXX would often beat and threaten them and their grandparents. XXXX was a drug addict and a member of a criminal gang. He and his gang members were often at the house and XXXX did drugs in front of the boys. He was murdered by gang members who also threatened the Appellants. Before XXXX died, the gang members told him that they would come after his family and if Mr. XXXX ever came back to Chile, they would find him and kill him. His family has been in hiding since XXXX death. [10] The Appellants fear that if they return to Chile they will be located, and the gang will carry out its threats against them, for one thing to keep them from testifying against them as witnesses. [11] It was determined by the RPD and agreed to by the Appellants that this is a sec. 97 case, there being no nexus to a Convention ground established.3 [12] Mr. XXXX was named as the designated representative for his minor son XXXX XXXX before the RPD, and this designation was confirmed by the Refugee Appeal Division (RAD). ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL The evidence submitted by the Appellants is accepted [13] In their memorandum of appeal, the Appellants explain new facts that took place since the RPD hearing, and submit the following as new evidence, under subsection 110(4) of the IRPA:4 * A-1: Violent protests mar Chile, New Delhi Times Bureau, dated October 29, 2019;5 * A-2: Masses of Chileans jam capital in protest against government, by Eva Vergara, The Associated Press, dated October 25, 2019;6 * A-3: How a $0.04 metro fare price hike sparked massive unrest in Chile, by Mark Johanson, VOX, dated October 29, 2019;7 * A-4: Chile protests sharpen as calls for constitutional change grow, by Naomi Larsson, Al Jazeera News, dated October 29, 2019;8 * A-5: "So much damage": Chile protests flare up as reforms fall short, by Dave Sherwood, Thomson Reuters, dated October 29, 2019;9 * A-6: Emergency Plan of Action, Chile: Civil Unrest, Red Cross (IFRC), dated October 25, 2019.10 Test for admissibility [14] Subsection 110(4) of the IRPA states that I can only accept evidence that: 1) arose after the rejection of the claim by the RPD; 2) was not reasonably available at the time; or 3) the appellant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection. I cannot admit evidence unless it falls under one of these three categories.11 [15] If the evidence meets the above requirements, I must then assess whether the evidence is credible, relevant and new before I can accept it.12 RAD decision on the admissibility of the new evidence [16] I find that exhibits A-1 to A-6 are admissible. [17] The RPD hearing took place on September 24, 2019, and the claim was rejected on the same day. The Appellants argue that all of their new exhibits arose after the rejection of their claim. [18] They further argue that the articles submitted as new evidence show that due to the civil unrest described in the articles, which began in October 2019, Valparaiso is not a viable IFA for them. Exhibits A-3, A-4 and A-5 report that the civil unrest is prevalent throughout Chile. The content of exhibit A-6 goes more in depth on the situation of injured protesters and describes the human rights situation in Chile. [19] The Appellants submit that the new evidence is credible as they are third-party documents that come from objective sources. They say the new evidence is relevant in that it goes to showing that it would be unreasonable in all the circumstances, including those particular to themselves, for the Appellants to seek refuge in Valparaiso. It is new because the unrest in Chile started in October 2019, after their claim was rejected. They finally argue that the new evidence is material because it will have an impact on the assessment of the RPD's decision. At the time of the hearing, there was no civil unrest in Valparaiso. The Appellants submit that the circumstances have changed, and this affects the second prong of the IFA analysis. [20] I agree with and accept the Appellants' arguments. [21] The facts raised by this evidence are new, beginning in October of 2019, and indeed occurred after the rejection of their claim. The articles are from credible, independent third-party sources, and they are relevant to the current situation in Valparaiso and the rest of Chile, which touches on the reasonableness of the proposed IFA. [22] As such, in light of the wording of subsection 110(4) of the IRPA and the relevant case law, I am of the opinion that exhibits A-1 to A-6 are admissible in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Standard of review [23] When reviewing the RPD decision, I am required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. 13 Credibility14 [24] The RPD member found the Appellants credible as to their allegations, however, qualifying her conclusion with the statement that: "In finding that the claimants are credible witnesses, I am not stating that I believe the claimants' conclusions and inferences made in their basis of claim forms and in their testimony."15 [25] As such, the situation the Appellants have described in Chile with XXXX, in support of their claim, is credible. I agree with the RPD that the Appellants were credible witnesses, and, in my opinion, the RPD's credibility assessment is correct. The RPD erred in assessing the viability of an internal flight alternative (IFA) in Valparaiso [26] The RPD rejected the Appellants' claim, concluding that they had an IFA in Valparaiso. It is my conclusion that the RPD member was incorrect in her IFA assessment. [27] The Appellants do not have an IFA in Valparaiso, or elsewhere in Chile, because in my opinion, on a balance of probabilities, they would be subjected personally to a risk to their lives or a risk of cruel and unusual treatment or punishment should they relocate in Chile. [28] The viability of an IFA in Valparaiso was the main focus of the RPD hearing and reasons. Given the new evidence that I admitted on the civil unrest in Valparaiso and the rest of Chile, and the potential effect this could have on my IFA analysis, I requested submissions from the Appellants on this topic, adding the cities of Arica and Punta Arenas as possible IFAs. [29] The Appellants responded to my request and filed submissions, with more new evidence.16 These will be referred to further below. [30] This IFA assessment is based on a two-prong test. Once the IFA has been raised, the onus of proof is on the Appellants to establish that 1) there is a serious possibility that they will be persecuted in the part of the country identified as an IFA or that on a balance of probabilities, they would be subjected personally to a danger of torture or to a risk to their lives or a risk of cruel and unusual treatment or punishment in the IFA; 2) the conditions in that part of the country must be such that it would be objectively unreasonable or unduly harsh, in all the circumstances, including those particular to the Appellants, for them to seek refuge there.17 [31] I will consider the RPD record, as well as the submissions and new evidence admitted, in regards to my forward-looking analysis of the Appellants' risk and the availability of an IFA. First prong- The risk of harm in the proposed IFA18 [32] The RPD found that the Appellants would be safe in Valparaiso for the following reasons: * XXXX was the person the Appellants feared, the reason that XXXX, XXXX and XXXX left Chile, and he is now deceased; * Valparaiso is a large city in Chile, 120 km from Santiago; * It is speculative to think that the gang members will locate the Appellants in Valparaiso; * The Appellants have no information about the gang, either a name, or the number of members; * There is no information on the record about the capacity or the motivation of this gang beyond the Appellants' speculation. [33] In the memorandum of appeal, the Appellants repeat that they testified that the gang that killed XXXX has connections throughout Chile. They know this because XXXX would frequently travel to other cities in Chile to conduct operations for this gang. Mr. XXXX testified that the gang has infiltrated the police. [34] The Appellants also argue that the RPD did not consider that they were directly threatened by the gang members, who told XXXX before he died that they would kill Mr. XXXX and his children if they returned to Chile. [35] They submit that their testimony should be presumed to be true and since the RPD made no negative credibility determinations, it was therefore obligated to take into consideration the seriousness of the threat and the nature of the risk to the Appellants when assessing the first prong of the IFA. [36] Finally, the Appellants argue that the threats against them are very real and serious. The gang has shown that it is willing and able to carry out its threats, as shown by their murder of XXXX. [37] There were news articles in evidence put forth by the Appellants, before the RPD, on the scope of the drug trade in Chile, with related gang activities, which is a more recent phenomenon in this country, and an in-depth investigation and analysis of organized crime and drug trafficking in Chile.19 [38] In the submissions that I received, the Appellants argue that the cities of Arica and Punta Arenas are not viable IFAs either. They repeat the same arguments as were in their memorandum of appeal, and submit again that their agent of persecution, XXXX and his gang, had connections throughout Chile, and that it is objectively verifiable that criminal gangs have links within the police. [39] In essence, the Appellants are arguing that the reason they will be located, wherever they go, is because of becoming a target of an organized drug trafficking gang. [40] In my opinion, based on the documentary evidence on the drug trade in Chile and the related gang activities, I find that it is more likely than not that the gang targeting the Appellants could have a presence in other parts of Chile, given that XXXX used to travel to other cities to conduct their business. [41] More importantly, I agree with the Appellants that the RPD did not adequately consider the uncontested testimony and supporting evidence of the threat against Mr. XXXX and his sons, made by the gang members who killed XXXX. This allegation was deemed credible and, in my opinion, because of this threat, the Appellants would always have reason to fear this gang and as a result, have to live in hiding in Chile. [42] For the above reasons, I find that it is more likely than not that the gang targeting the Appellants does have the motivation and capacity to find them in the proposed IFAs, and even elsewhere in Chile. [43] As such, I conclude that on a balance of probabilities, the Appellants would be subjected personally to a risk to their lives or a risk of cruel and unusual treatment or punishment, if they were to relocate to the proposed IFAs, or elsewhere in Chile. [44] The RPD's decision on this part of the IFA analysis was incorrect. Second prong-Is relocation to the proposed IFA reasonable?20 [45] The RPD found that the reasons given by the Appellants for not wanting to relocate to Valparaiso, being primarily the lack of employment prospects, were not sufficient and did not meet the high threshold, being that their lives or safety would be jeopardized. [46] In the memorandum of appeal, the Appellants argue that the RPD did not adequately consider that they are uneducated and would find it difficult to obtain employment in Valparaiso. The Appellants cannot obtain education in the city because they cannot afford to pay for it. Without work, Mr. XXXX would struggle to support his three children. Also, they do not have family in Valparaiso. Finally, the Appellants say that Valparaiso is also relatively close to Santiago. [47] With the new evidence that I admitted in this appeal, the Appellants argue that this evidence shows that Valparaiso is not a viable IFA. The evidence shows that there is civil unrest there and that the massive protests turned violent. As such, the Appellants would not be able to settle safely in Valparaiso. They would not be able to find employment or housing in Valparaiso. According to the Appellants, conditions exist in Valparaiso which would jeopardize their life and safety. They cite jurisprudence that states that generalized violence is a consideration under the second prong of the IFA analysis, saying that the existence of such violence could have the potential to meet the high threshold set out in Ranganathan.21 [48] In the submissions that I received, the Appellants argue that it would be unreasonable for them to seek refuge in Arica and Punta Arenas as well. They repeat the same arguments as were made with respect to Valparaiso in their memorandum of appeal. [49] The Appellants submit new evidence with their submissions, this time in connection with the conditions in Arica and Punta Arenas, arguing that the statutory requirements of subsection 110(4) of the IRPA are met, and that the evidence is credible, relevant, new and material. [50] This new evidence consists of five articles, including one travel advisory by the Canadian government, about the ongoing civil unrest in Chile, including in Arica and Punta Arenas, and the Appellants argue that this shows that these two cities are not viable IFAs because their lives and safety would be jeopardized should they relocate to either of these places.22 [51] These articles are accepted as new evidence before the RAD as they do meet the criteria of subsection 110(4) of the IRPA and more precisely, are evidence that I requested when I asked for additional submissions on IFA for Arica and Punta Arenas. As such, the Appellants could not have been expected to produce them before the RPD. It is new information that is relevant to the issue of IFA in this claim, which is determinative, and the documents come from credible sources. [52] In my opinion, because the Appellants have established that on a balance of probabilities, they would be subjected personally to a risk to their lives or a risk of cruel and unusual treatment or punishment in the proposed IFAs, and elsewhere in Chile under the first prong of the IFA test, it is not necessary to pursue with an analysis under the second prong. [53] As a result, there is no IFA in Chile for these Appellants. State protection [54] There is a presumption that a state is willing and able to adequately protect its citizens. [55] As described above, the Appellants fear a drug dealing gang who killed XXXX and threatened them as well. Based on the narrative described by the Appellants, during the years that they lived in the same household as XXXX, they had frequent contact with certain gang members and witnessed their activities. The police were often present at the Appellants' household in XXXX and were well aware of the problems surrounding XXXX. [56] Mr. XXXX narrative says that it was common for the police to come to their house looking for XXXX, and that he was suspected of being involved in such things as homicide, distribution of drugs, and home robberies. Despite the numerous times the police went to their house because XXXX was dangerous and a recognized criminal, XXXX always remained free as there were never any witnesses to his crimes or if there were, they would strangely disappear. Mr. XXXX also related that after a particularly violent attack, XXXX threatened to kill his children if ever he reported him to the police. Violence and intimidation were recognized as tools used to evade justice. [57] In XXXX narrative he states: "XXXX threatened me, he told me that if I went to school and reported his abuse of me and were sent to jail because of my report, his gang would kill everyone. A couple of times the neighbors called the police and he was detained. People in his gang immediately came to threaten us, forcing us to go to the police station and lie to them saying that the situation had been misunderstood, so that the police would release XXXX." [58] In XXXX narrative he states: "... it was common for the police to arrive to calm him down, I remember that my uncle XXXX often threatened us with a knife in our neck that if we told someone what he was doing with his friends he would kill us ... the Police never arrested because he threatened to kill us, through his band, if someone spoke." [59] All of this was found credible. In my opinion, under these circumstances, it is not surprising that the Appellants did not go to the police for protection. The fear of reporting to the police is also confirmed in the news articles put forth by the Appellants as evidence before the RPD.23 [60] But more importantly, in my mind, the state failed to protect XXXX, XXXX and XXXX for the years that they lived in their grandparents' home by not successfully prosecuting XXXX for one thing, but also by not protecting them from the gang members. The police were called to their house on a recurrent basis and had to be aware of what the family was dealing with on an ongoing basis, yet nothing concrete was done to protect the boys and their grandparents. If this was so, then one must ask, how will the state protect the Appellants in the future? In my opinion, based on the scenario described above, it is more likely than not that the police cannot provide adequate protection. [61] Despite numerous visits and interventions by the police, they were not able to arrest and convict XXXX nor the gang members that have threatened the Appellants. [62] In my opinion, the police are not able to adequately protect them against the drug-trafficking gang that has threatened them. In other words, the Appellants have rebutted the presumption of state protection. [63] As a result, there is no adequate state protection for the Appellants in Chile. RAD CONCLUSION [64] My analysis of the evidence reveals that the RPD erred and was incorrect in its determination of a viable IFA. [65] The Appellants have established that on a balance of probabilities, they would be subjected personally to a risk to their lives or a risk of cruel and unusual treatment or punishment by members of a drug-trafficking gang if they relocated to Valparaiso, Arica, Punta Arenas, or elsewhere in Chile, and that the police cannot provide adequate state protection. [66] I allow this appeal, set aside the determination of the RPD and am substituting with my own determination that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX are "person(s) in need of protection". 24 Julie Corry Me Julie Corry January 30, 2020 Date JC/lp 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, s. 97(1)(b), and 111(1)(b). 2 Appellants' Basis of Claim forms, including individual narratives, pages 8-66 of the RPD record (BOC); RPD reasons and decision given orally on September 24, 2019, with a transcript sent out October 7, 2019, at page 3 of the RPD record (RPD Reasons); Appellants' memorandum, at paras. 4-6, pages 51-52 of the appeal record. 3 IRPA, s. 97(1)(b). 4 Appellants' memorandum, paras. 18-27, see also pages 58-63 of the appeal record. 5 Appellants' record, pp. 9-11. The exhibits were not numbered so I gave them individual numbers beginning with A-1. 6 Appellants' record, pp. 12-13. 7 Appellants' record, pp. 14-23. 8 Appellants' record, pp. 24-27. 9 Appellants' record, pp. 28-34. 10 Appellants' record, pp. 35-47. 11 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 34-35[Singh]. 12 Ibid, at paras. 38-49. The Federal Court of Appeal ruled that it is reasonable for the RAD to assess the new evidence having regard to the criteria set out in Raza (2007 FCA 385) related to the credibility, relevance and newness of the evidence. However, the Federal Court of Appeal specified that the requirement concerning the materiality of the new evidence should only be considered for the sole purpose of determining whether the RAD should hold an oral hearing pursuant to s. 110(6) of the IRPA. 13 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 14 See RPD Reasons, lines 15-19 on page 4 of the RPD record. 15 See RPD Reasons, lines 17-19, at page 4 of the RPD record. 16 Appellants' submissions dated January 27, 2020, with new evidence. 17 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.); Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.). 18 See RPD Reasons, line 25 of page 4 of the RPD record to line 19 of page 6 of the RPD record; Appellants' memorandum of arguments, paras. 9-13. 19 Pages 258-279 of the RPD record. 20 See RPD Reasons, line 21 of page 6 of the RPD record to line 10 of page 7 of the RPD record; Appellants' memorandum of arguments, paras. 14-17and 25-27. 21 Onyenwe v. Canada (Citizenship and Immigration), 2011 FC 604 at para 18. 22 The five articles submitted as new evidence can be found at pages 8-51 of 51 of the fax sent with the submissions to the RAD dated January 27, 2020. I assigned them the number A-7, as a bundle. 23 Drug Gangs Run 80 Neighborhoods in Santiago, Chile, by Geoffrey Ramsey, October 31, 2012, www.insightcrime.org, see p. 259 of the RPD record. 24 IRPA, sec. 97(1)(b), 111(1)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 04, 2019) 2 RAD File / Dossier de la SAR : VB9-08112, VB9-08113, VB9-08114, VB9-08115