VB9-02296

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 : VB9-02296, VB9-02297, VB9-02298, VB9-02299, VB9-02300 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 XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision December 21, 2019 Date de la décision Panel Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal Karen Klouth 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, his wife, XXXX XXXX XXXX XXXX, and their three minor children, 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 his determination of a viable internal flight alternative (IFA) in Punta Arenas, Chile. [4] I find that the Appellants would be at risk from members of a drug trafficking organization if they relocated to Punta Arenas, the proposed IFA, or anywhere else in Chile, because of the drug dealer's motivation for revenge and continued interest in finding the Appellants. I also find that they could not receive adequate protection from the police. Background2 [5] The Appellants all relied on Mr. XXXX BOC and narrative, as well as his testimony. [6] They fear being killed by members of a Colombian drug-trafficking gang. The father was the XXXX XXXX XXXX XXXX at a company in Santiago, Chile. As XXXX XXXX he was involved in an internal investigation that resulted in the firing of XXXXemployees for their involvement in suspected drug crime. [7] Within XXXX XXXX, the Appellants began receiving threatening phone-calls, blaming Mr. XXXX for ruining their plans at the company and threatening to kill him and his family. [8] Despite changing their phone number more than once, the calls continued. [9] The Appellants' home was physically attacked. Three men threw rocks or other objects at the home breaking the windows and attempted to kick down the gate. They were not able to get access to the home. While they were attacking the home, they shouted insults and threats that were entirely consistent with the threats the Appellants had been receiving by phone. [10] The Appellants relocated once within Santiago and another time to XXXX, a town in the north of Chile. The threatening calls continued and Mr. XXXX was told that the drug dealers knew where he was each time. [11] The threats were reported to the police in both Santiago and XXXX. In XXXX, the police arranged a type of sting operation involving Mr. XXXX and arrested the members of the criminal organization that came to the meeting. These members were soon released and this intervention had the effect of angering the drug dealers even more. [12] Realizing that the police would not be able to help them, the Appellants then fled to Canada. [13] Mr. XXXX father-in-law began to receive visits at his XXXX in Santiago from individuals who inquired about the whereabouts of the Appellants and these inquiries were at times aggressive and threatening. These visits continued and one occurred as recently as a few months before the RPD hearing, more than a year after the Appellants left Chile. [14] Mr. XXXX father-in-law complained to the police who said they could increase their presence in the neighbourhood but the only way they could do anything is if they caught the individuals in the act during one of the visits. [15] Mr. XXXX knows of another XXXX XXXX, the XXXX, who was also targeted by the gang. The XXXX was forced from his car, beaten and threatened with death but managed to escape. The XXXX complained to the police, but then fled to XXXX. [16] The Appellants fear that if they return to Chile they will be located, and the gang will carry out its threats because they are motivated by revenge. [17] Mr. XXXX was named as the designated representative for his three minor children, XXXX, XXXX and XXXX before the RPD, and this designation was confirmed by the Refugee Appeal Division (RAD). STANDARD OF REVIEW [18] 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. 3 ANALYSIS OF THE MERITS OF THE APPEAL Credibility4 [19] The RPD member found the Appellants credible as to their allegations and found no reason to doubt their truthfulness. [20] I agree with the RPD that the Appellants were credible witnesses, that their testimony was spontaneous and forthright, and in my opinion the RPD's credibility assessment is correct. Apprehension of bias and breach of natural justice [21] In their memorandum of appeal, the Appellants argue that they have a reasonable apprehension of bias and that there was a breach of natural justice. [22] The reason being is that the RPD issued his oral decision at the end of the hearing, within minutes of counsel giving final submissions. According to the Appellants, a detailed and lengthy decision delivered in such a short time gives the impression that the RPD had a pre-determined decision, pre-written with the benefit of time, and that the hearing was a mere formality. [23] The Appellants submit that even if the Board member had the opportunity to prepare by reviewing the record, with the complicated facts in this case, and so many details in the lengthy reasons delivered in such a short time, it makes it obvious that the RPD member had pre-written his decision before the hearing even started. [24] Because of this, they argue that they have a reasonable apprehension of bias and that a breach of natural justice has occurred. [25] I refer to the jurisprudence cited by the Appellants in their memorandum that states that an allegation of bias against a tribunal is a serious one, that cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard.5 [26] The Appellants say that the material evidence in this case is the audio recording of the hearing in which the RPD member's reasons were delivered orally. [27] The transcript of the RPD's reasons delivered orally is nine pages long, single-spaced, and it took close to an hour for the member to read them out on the record. I listened to the recording and can confirm that the RPD member was reading a text word for word. I cannot say exactly how long the RPD member absented himself to prepare his reasons and come back into the hearing room to read them out, but it is more likely than not that he did not compose this fulsome and detailed set of reasons in such a short time. [28] That being said, I do not have enough concrete information to say that this was the result of a bias and that the RPD member had completely made his decision before the hearing. It is possible that the RPD member prepared a portion of the text of his reasons in reviewing the record and preparing himself for the hearing, and left the actual findings until after the hearing. Without resorting to conjecture, I simply cannot say exactly what happened. [29] As such, I am not prepared to say that a breach of natural justice occurred, nor that the RPD member in this case was biased. Without having more concrete and material evidence, I will not go so far as to say that the Appellants have a reasonable apprehension of bias. [30] I will now analyze the RPD's assessment of the viability of an IFA in Punta Arenas, Chile. The RPD erred in assessing the viability of an internal flight alternative (IFA) in Punta Arenas [31] In my opinion, the RPD was incorrect in his IFA assessment. The Appellants do not have an IFA in Punta Arenas, or elsewhere in Chile, because in my opinion, 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 should they relocate in Chile. [32] This 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.6 [33] The national documentation package (NDP) on Chile has been updated since the RPD hearing in this file, and I will consider the updated information, especially on the country conditions with respect to drug trafficking and the efficacy of the authorities to protect people from the international drug cartels and their criminal activities, in regards to my forward-looking analysis of the Appellants' risk and the availability of an IFA.7 First prong- The risk of harm in the proposed IFA8 [34] The RPD found that the Appellants would be safe in Punta Arenas for two related reasons: * The gang targeting the Appellants lacks the ability to locate them in Punta Arenas; * It was not established that this gang has a presence in Punta Arenas similar to the gang's presence in Santiago and XXXX. As such, the gang lacks the resources on the ground to search for, and locate, the Appellants there. [35] In order to reach these conclusions, the RPD analysed the documentary evidence on the conditions in Chile, finding that it is a reasonably safe country with a stable democracy. That being said, the RPD recognized that international organized crime focussed on drug-smuggling has increasingly become a significant problem in Chile. However, according to the RPD, the evidence on the extent of these criminal organizations' operations in Chile is less developed. [36] Despite the Appellants' arguing that Punta Arenas, being at the southern tip of Chile, makes it a prime port for the transhipment of drugs, most convenient for access to the east and west, as well as being a tax haven, the RPD concluded that this was speculative and that there was no evidence of Punta Arenas being used as a sight for drug transhipment or as a location of international criminal activity. [37] The Appellants had also argued that if the gang had found them in Santiago and XXXX, they would be able to find them elsewhere, especially given that they could be easily found through online searches of publicly available records, such as tax records or the children's school registrations. [38] The RPD also found that this was speculative, citing documentary evidence about Chile's privacy and data law. [39] The RPD did accept that the Appellants were located by the gang in Santiago and in XXXX. The RPD also accepted that the gang had been looking for the Appellants as recently as the end of 2018, just a few months before the RPD hearing, and more than a year after they left Chile. [40] The RPD found that the gang remained motivated to locate the Appellants. However, in the end, the RPD found that the gang lacked the ability to locate the Appellants in Punta Arenas. [41] In the memorandum of appeal, it is argued that the RPD's decision is vague and unreasonable regarding the proposal of Punta Arenas as an IFA because it did not consider the arguments laid out by counsel regarding the Appellants' circumstances and the geographical localization of this place. [42] The Appellants argue that the RPD overlooked the fact that the agents of persecution belong to an international criminal organization, with the sophistication and power to operate internationally and able to trace the Appellants wherever they try to relocate within not only Chile but within neighbouring countries. [43] They explain that Punta Arenas is a small community and its closeness to the ocean make it a gateway to drug trafficking because it is a principal port that connects both, the Atlantic and the Pacific oceans. Being a tax-free zone makes it a more attractive destination for criminal organizations, despite its far south location and, contrary to the RPD's appreciation, this port city, in fact, favours the exchange of all sorts of goods, including drugs. Thus, it is reasonable to conclude that the agents of persecution's power extends to Punta Arenas as well. [44] According to the Appellants, it is equally unreasonable to conclude that they can relocate in the proposed location given the little effort required in this electronic communications era for people with the use of numerous publicly available internet tools to find people they are looking for. Therefore, if taking in consideration the personal circumstances of the Appellants and the power and sophistication of the agents of persecution, it is unreasonable for them to relocate to Punta Arenas. [45] Finally, the Appellants say that the RPD erred by not giving them notice prior to the hearing that Punta Arenas would be proposed as an IFA. [46] There were news articles in evidence put forth by the Appellants, before the RPD, on the scope of the international drug trade in Chile, including its particular geography and the history of organized crime in this country.9 [47] I have considered the research and information contained in the most current NDP, as well as the Appellants' submissions and supporting documents. [48] In essence, the Appellants are arguing that the reason they will be located, wherever they go, is because of becoming a target, based on revenge, of an organized drug trafficking gang. They say that this gang does have the capacity to find them because: (1) the gang, by definition of who they are, are sophisticated and powerful; (2) the gang found them in the past after moving twice, once within Santiago and another time to XXXX; (3) Punta Arenas is a port city attractive to drug traffickers; and finally, (4) because they will be easy to find through online searches. [49] To begin, I will address the Appellants' argument that the RPD should have given them notice before the hearing that Punta Arenas would be proposed as an IFA. [50] At the beginning of the hearing the RPD member stated the issues to be addressed during the hearing and an IFA in Punta Arenas was announced. This was repeated before the Appellants' counsel began her final submissions. It was up to the Appellants' counsel to request a delay to prepare more submissions or produce more documents if she felt this was necessary, and she could have done so prior to the rejection of the claim. [51] I also point out that notice prior to the hearing is not required as the issue of IFA is always on the table in a refugee claim. It forms part of the analysis required under sec. 96 and 97(1) of the IRPA. The Appellants were represented by experienced counsel in the preparation of and during their hearing before the RPD and the issue of IFA and how it was proposed should not have come as a surprise. [52] What strikes me as critical to the analysis of the proposed IFA at this point is whether the Appellants will have to live in hiding if they relocate there. We know that the gang still has the motivation to find the Appellants, the question is do they have the capacity. The RPD says they do not, and the Appellants say that they do. [53] I agree with the Appellants. In my opinion, based on the documentary evidence on the drug trade in Chile, and on a balance of probabilities, I find that it is possible that the gang targeting the Appellants could have a presence in Punta Arenas, given that it is an important port city at the southern tip of Chile. The article submitted by the Appellants and analyzed by the RPD states that "the U.S. State Department has identified Chile as an "important" transit country for cocaine trafficked from the Andes to Europe, Africa and Australia."10 [54] The RPD did not think that drug dealers would transport their goods all the way to the southern tip of Chile, preferring more northern port cities to operate out of. In my opinion, this part of the RPD's analysis is based on logic and speculation and not on fact. [55] Given the geographic position of Chile, between drug producers in the north and consumer markets, and the location of Punta Arenas itself, being a port city with access to the east and the west, and the noted rise of international trafficking of drugs in and out of Chile, there is nothing in the documentary sources that says Punta Arenas would not be an ideal place for organized crime to have a presence. [56] We know in this claim that we are dealing with a vengeful drug trafficking gang who are still motivated to find the Appellants. Given that they had infiltrated Mr. XXXX place of employment and as a result of the complaints and internal investigation in this company XXXX people were fired, we can assume that this is a large gang with means and sophistication. [57] It is also significant that the gang was able to find the Appellants phone numbers after they were changed at least three times, and to find the Appellants after they relocated within Santiago and then also in XXXX. [58] For the above reasons, I find that on a balance of probabilities, it is possible that the gang targeting the Appellants does have the capacity to find them in Punta Arenas, and even elsewhere in Chile. [59] As such, I conclude that on a balance of probabilities, the Appellants 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, even if they were to relocate to Punta Arenas, or elsewhere in Chile. [60] The RPD's decision on this part of the IFA analysis was incorrect. Second prong-Is relocation to the proposed IFA reasonable?11 [61] In my opinion, because the Appellants have established 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 proposed IFA, 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. [62] As a result, there is no IFA in Chile for these Appellants. State protection [63] There is a presumption that a state is willing and able to adequately protect its citizens. [64] As described above, the Appellants fear a drug dealing gang and did approach the police in order to receive protection in the past, on more than one occasion. [65] The following is a list of attempts to obtain police protection, made either by the Appellants, Mr. XXXX father-in-law, or Mr. XXXX co-worker who was targeted by the same gang for the same initial reason: * Mr. XXXX co-worker, the XXXX XXXX XXXX XXXX, went to the police when he received threats after the internal investigation in their company that resulted in XXXX employees being fired for suspected drug activities; * This same individual was physically attacked, and again complained to the police; * Mr. XXXX complained to the Carabineros de Chile after receiving threats and after their house was attacked in Santiago, providing evidence of threats and aggression; * Mr. XXXX went to the police again when he continued to receive threats after relocating within Santiago and was told that they could not open an investigation without knowing who they were investigating or why; * After relocating to XXXX, Mr. XXXX once again received threatening phone calls and complained to the police. They assisted him by setting up a type of sting operation that resulted in the arrest of the individuals who attended a meeting. However, these individuals were soon released, and the gang members then knew that Mr. XXXX had worked with the police against them; * Mr. XXXX father-in-law complained to the police after individuals came to his XXXX in Santiago looking for the Appellants and the police said they could increase their presence in the neighbourhood but the only way they could do anything is if they caught the individuals in the act during one of the visits. [66] Despite numerous complaints to the police, and one attempt by the police in XXXX to assist the Appellants, the police were not able to arrest and convict the gang members that continue to look for the Appellants. [67] In my opinion, the Appellants have tried their best to get police protection, but the police are not able to adequately protect them against the drug trafficking gang that is targeting them. In other words, the Appellants have rebutted the presumption of state protection. They have tried to seek protection and it did not work. [68] As a result, there can be no state protection for the Appellants in Punta Arenas, as well as in the rest of Chile. RAD CONCLUSION [69] My analysis of the evidence reveals that the RPD erred and was incorrect in its determination of a viable IFA. [70] The Appellants have established 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 by members of a drug trafficking gang if they relocated to Punta Arenas, or elsewhere in Chile, and that the police cannot provide adequate state protection. [71] 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 XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX are "person(s) in need of protection". 12 "Julie Corry" Me Julie Corry December 21, 2019 Date 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 a narrative, pages 12-84 of the RPD record (BOC); RPD reasons and decision given orally on February 22, 2019 with a transcript sent out March 4, 2019, at line 34 of page 3 of the RPD record to line 37 of page 5, pages 3-11 of the RPD record (RPD Reasons). 3 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 4 See RPD Reasons, lines 5-19 on page 6 of the RPD record. 5 Appellants' memorandum, para. 6. 6 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.). 7 National Documentation Package for Chile, April 30, 2019. 8 See RPD Reasons, line 21 of page 6 of the RPD record to line 31 of page 10 of the RPD record; Appellants' memorandum of arguments, paras. 12-20. 9 Pages 566-597 of the RPD record. 10 Page 567 of the RPD record. 11 See RPD Reasons, line 33 of page 10 of the RPD record to line 2 of page 11 of the RPD record. 12 IRPA, sec. 97(1)(b), 111(1)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 04, 2019) 2 RAD File / Dossier de la SAR : VB9-02296, VB9-02297, VB9-02298, VB9-02299, VB9-02300