VB6-01461

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 No. / No de dossier de la SAR : VB6-01461 Private Proceeding / Huis clos Amended Reasons and decision ? Motifs et décision Person(s) who is (are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Vancouver, BC Appel instruit à Date of Decision August 3, 2016 Date de la décision Panel Patricia Broad Tribunal Counsel for the person(s) Theressa Etmanski Conseil(s) du (de la/des) who is (are) the subject of Barrister and Solicitor personne(s) en cause the appeal Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of El Salvador, appeals a decision of the Refugee Protection Division ("RPD") rejecting her claim for refugee protection. She requests that the Refugee Appeal Division ("RAD") set aside the RPD's decision and substitute it for its own determination that she is a Convention refugee or a person in need of protection or, in the alternative, refer matter back to the RPD. DETERMINATION OF THE APPEAL [2] I find that the RPD is wrong in mixed law and fact. I am unable to confirm or set aside the RPD decision without sufficient evidence on issues such as state protection. [3] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD refers this matter to the RPD for redetermination by a newly constituted panel. BACKGROUND [4] The appellant alleges that if she returns to El Salvador, she will face further persecution from gangs because of her gender. In a decision dated April 6, 2016, the RPD determined that there was not sufficient evidence to find that the appellant had a well-founded fear of persecution should she return to El Salvador. It noted, amongst other reasons, that the appellant worked in a location where a violent incident occurred for years after the occurrence and that there had been a significant period of time since the appellant left El Salvador. It found that there was insufficient evidence of a forward-looking risk of persecution and that were no compelling reasons for her to stay in Canada. [5] The appellant alleged that the RPD erred on a question of mixed law and fact. She argues that the RPD did not properly consider whether the appellant was a member of a particular social group. She argued that the RPD only considered the one incident of rape when there was other evidence of persecutory acts. Further, she argues that the RPD erred when it required corroborating evidence regarding whether the appellant's ex-boyfriend had friends in a gang. [6] For these reasons, the appellant requests that the RAD either set aside the RPD decision and substitute it with a decision that the appellant is a Convention refugee or a person in need of protection or refer the matter back to the RPD for redetermination. [7] There was no new evidence presented before the RAD and the appellant did not request a hearing in accordance with section 110(6) of the Act. SCOPE OF RAD APPEAL [8] The role of the RAD has been considered in depth by the Federal Court of Appeal. In Huruglica,2 Madame Justice Gauthier wrote that the RAD must apply to the standard of correctness when considering RPD decisions where there is a finding of fact and mixed law and fact which does not raise an issue of credibility of oral evidence. After doing an independent analysis of the record to determine if the RPD erred, the RAD provides a final determination by confirming the RPD decision or by setting aside the RPD decision and substituting its own decision for it. If the RAD cannot provide a final determination without hearing the oral evidence presented to the RPD, the RAD can refer the matter back to the RPD for a re-determination. ANALYSIS OF THE MERITS OF THE APPEAL [9] I find that the RPD committed several errors and that the decision should be set aside. Was the appellant a member of a particular social group? [10] The appellant has argued that the RPD erred when she did not review whether the appellant was a member of a particular social group. While this may be the case, the lack of a review does not appear to be determinative in the RPD's reasons. It did not state that the appellant was not part of a particular social group; rather the reasons revolved around whether or not the appellant had a well-founded fear of persecution should she return to El Salvador. [11] That being said, I find that there is sufficient evidence that the appellant is a member of a particular social group. According to Canada (Attorney General) v. Ward, gender is an innate or unchangeable characteristic.3 Further, The Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution states as a general proposition that: Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender related persecution by reason of any one, or a combination of, the enumerated grounds.4 [12] Certainly, the appellant's gender is an innate and unchangeable characteristic. As will be later in the decision, the documentary evidence confirms that there is a prevalent issue of violence against women in El Salvador. The evidence also shows that this appellant was targeted for persecution because of her gender. She was sexually assaulted and sexually harassed while she was in El Salvador. Further, the threat that she anticipates from gangs in El Salvador should she return is related to her status as a former girlfriend of a friend of a gang. The appellant fears persecution resulting from an act of violence, threats and harassment. As stated in Dezameau v. Canada (Minister of Citizenship and Immigration),5 "[. . .] rape, and other forms of sexual assault, are crimes grounded in the status of women in society."6 There is sufficient evidence to support a conclusion that the appellant's status in society as a woman in El Salvador leads her to be a member of a particular social group. [13] I find that the RPD did not address all of the relevant facts for how the appellant was targeted. While the sexual assault occurred in 2006, the appellant had family members who were murdered. The RPD states that the appellant had stated that the nephew was possibly involved with a gang.7 It reasons that the prevalence of crime, gang violence, and a high murder rate in El Salvador are reasonable explanations for the murder. The RPD states that the appellant's opinion that the murder of the niece was because of her was not credible as there is no mention of the murder in any of the letters. I believe the RPD means that it is not plausible, or likely. However, whether or not the murder is mentioned in a letter years after the fact does not provide a substantial ground to completely reject the appellant's theory. [14] The RPD stated that the fear of being a victim of crime was a fear faced generally in El Salvador; further, robberies are common occurrences.8 The reasons state that the robbery on the bus was generalized against all passengers.9 Conversely, I find that there is sufficient evidence that the appellant was targeted on the bus during the robbery in about 2008. The robbery was against all people on the bus; however, the threat made against the appellant was specific. The robber stated that he knew where she worked and if she talked he would kill her. This is sufficient to find that there was a personalized risk against the appellant herself in 2008. While there has not been an incident in El Salvador for years, she left the country in about 2008 or 2009. [15] Even if the appellant were not targeted, it would not necessarily lead to the conclusion that she was not a Convention refugee. The "Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution" point out the decision in Salibian v. MEI10 and note that: [The] gender-related claim cannot be rejected simply because the claimant comes from a country where women face generalized oppression and violence and the claimant's fear of persecution is not identifiable to her on the basis of an individualized set of facts.11 [16] The fact alone that there is a generalized risk against women in El Salvador does not preclude a finding that the appellant is a Convention refugee. [17] In short, the RPD reasoning for the section 96 and 97 claim centers on one incident; a rape in 2006.12 However, there was an incident in the bus where not only as the appellant robbed, it was clear that the robber identified her and specifically threatened her. She has also been approached sexually in an unwanted manner. It does not appear that the RPD considered whether the cumulative effect of these incidents would constitute persecution and whether they formed the basis of a subjective and objective fear of persecution should the appellant return to El Salvador. Is there evidence of a subjective fear of persecution? [18] The RPD noted that the appellant's behaviour negated a subjective fear but the fact that she was a victim of rape and domestic violence could be an explanation for her behaviour. The finding is not very clear. Further, there was additional relevant evidence that supports a finding of a subjective fear that the RPD did not address. The appellant testified in a credible manner that she was afraid of going back to El Salvador. The RPD took issue with the appellant's testimony that her boyfriend was friends with gang members. When considering whether there is a risk of future persecution, the RPD discounted the appellant's testimony that her ex- boyfriend would be able to retaliate if she were there, as there was no evidence before her, the boyfriend had "any kind of gang connection in El Salvador."13 However, there was some evidence, that being the appellant's testimony. The transcripts of the hearing confirm that the appellant testified that the appellant's ex-boyfriend had friends who were gang members and that he knew she was afraid of gangs because of what had happened to her.14 [19] It is an error in law to ignore testimony and state that none exists when an appellant has testified on a matter. Her testimony is evidence. Further, to discount the oral testimony in the absence of evidence that contradicts it can go against the presumption that oral testimony is presumed to be truthful (Maldonado v MEI).15 There was no evidence on record that would suggest the need for corroborating evidence about her ex-boyfriend being friends with gang members. In the absence of any contradictory evidence, it is more likely than not that the appellant's ex-boyfriend had friends who were gang members. [20] Further, there is testimony that confirms the appellant's view that her ex-boyfriend was violent and vindictive. This testimony is consistent with her testimony relating to her fear of retaliation in El Salvador. [21] Another source of evidence for the appellant's subjective fear is that she was targeted on the bus with a threat during a robbery and that she was sexually harassed. [22] In addition, I find that the report on record by a registered clinical counsellor who examined the appellant on March 16, 2016 is evidence that supports the conclusion that the appellant has a subjective fear.16 It is evidence that the appellant's Post-Traumatic Stress Disorder ("PTSD") is related to the events in El Salvador. The report was prepared by a registered clinical counsellor who is also registered with the Canadian Psychological Association and who has a PH.D.. The appellant's diagnosis is not in dispute. In her report, she recounted the appellant's history and diagnosed her with Post-Traumatic Stress Disorder with clinical depression caused by emotional trauma. The RPD stated that the sexual assault in El Salvador is not the sole cause of the symptoms; being raped by a smuggler, her ex-boyfriend's abuse in Canada, and being abandoned by her husband in Canada were also noted as traumatic events.17 This may be the case, however, it does not discount the role that the sexual assault in El Salvador and her fear of her ex-boyfriend plays in the Post-Traumatic Stress Disorder in the face of evidence that relates it. The counsellor stated that the appellant was still suffering from an intense psychological distress and the symptoms of her disorder consist of depressed mood, insomnia, extreme fear and anxiety. She wrote that: [The appellant] suffers from Post-Traumatic Stress Disorder. She is re-experiencing the traumatic events in her thoughts, in her perceptions and in her flashback episodes. She is still suffering from an intense psychological distress. The symptoms of her disorder consist of depressed mood, insomnia, extreme fear and anxiety.18 And further she writes [The appellant's] thoughts are greatly impacted by her past traumas. She suffers from severe distress and constant anxiety attacks. Her strongly dysphoric and anxious thinking of herself and her surroundings is the result of a number of very hurtful psychologically damaging past experiences and traumas. Her self-concept includes feeling of vulnerability and lack of safety. She has inadequate psychological resources/coping ability to effectively deal with ordinary stress and reacts to them with extreme anxiety and fear.19 [23] She also wrote that in her opinion the appellant's description of past events "her behaviour, mental emotional state all support her claim of being physically and mentally abused and traumatized in El Salvador."20 [24] Granted, the incidents recited by the RPD may have contributed to the PTSD. But the report supports that the events that the appellant is relying on for her claim contributed to her fear of returning to El Salvador. I find that the report from the counsellor is evidence that supports a finding that the appellant has a subjective fear of returning to El Salvador. [25] Further, that the appellant believes that the murderers who killed her niece mistook her niece for herself is evidence that supports a finding of a subjective fear of persecution. [26] The RPD notes that the appellant did not leave until years after the sexual assault. While it is true, the appellant did not leave until sometime in 2008, there were other traumatic events such as the murder of her niece and nephew as well has being robbed and threatened on the bus that happened after the sexual assault. It appears from the testimony that she left shortly after the bus robbery. Further, her explanation that she needed to make money before she left is plausible as she had a son and expenses. I do not find that the delay before leaving is sufficient to show that she did not have a subjective fear. [27] I find that the RPD's finding with regards to a subjective fear was unclear and did not address all of the relevant evidence. Overall, the evidence supports a conclusion that the appellant had a subjective fear of persecution. Is there evidence of an objective basis for this fear? [28] A second component is whether there is sufficient evidence of an objective basis for the fear of persecution. The RPD considered the fact that the appellant had worked for years after reporting the sexual assault and concluded that any gang retaliation would have occurred during then. However, while the gang did not attack the appellant during this time, she was specifically threatened on a bus and her niece and nephew were murdered. It was not completely peaceful. In this case, and in these unique circumstance, the fact alone that there was not gang retaliation for reporting the sexual assault is not sufficient to find that there is not an objective basis for the claim. [29] The question remains as to what constitutes the threat upon her return. The appellant testified that her ex-boyfriend would contact gang members to harm her. I have already addressed the finding of credibility of whether the ex-boyfriend was a friend of gang members. I do not find the fact that the appellant's female relatives do not specify risks in the future because of the appellant's gender in letters to be a compelling reason to dismiss the likelihood that there is a serious possibility of gender-related persecution. Past persecution has been held to be a good indicator of future persecution. The sexual assault in El Salvador itself is not in question. Further, the appellant's allegation that while she reported the sexual assault there was not a conviction is supported by the low levels of convictions in the country information. As noted: Country Reports 2012 states that, according to the FGR, there were 3,061 cases of sexual crimes reported in 2012, resulting in 246 convictions (US 19 Apr. 2013, 15). Country Reports 2013 and 2014 indicate that there were 4,826 cases of sexual crimes between January and 28 August 2013, resulting in 392 convictions (ibid. 21 Mar. 2014, 15), and 1,793 cases between January and 3 September 2014, resulting in 24 convictions (ibid. 25 June 2015, 15).21 [30] The level of persecution appears to have been present shortly before the appellant left as the bus incident occurred months before she left. She has been sexually assaulted and targeted, it is more likely than not that her ex-boyfriend has gang connections, and the reports on record document that is not uncommon for gangs to be violent against women.22 I find that the RPD erred when it did not consider that there was sufficient evidence to conclude that there was an objective basis to the appellant's claim. [31] In addition, the RPD refers to the "compelling reasons exception". It is not clear, but it appears to be considering the exceptions for the test with regards to whether or not there has been a change in the country which forms the basis of a claim such that the reasons that an appellant would have been a Convention refugee have ceased to exist. If that is the case, there may be "compelling reasons" to find that the person should not be a Convention refugee. I am not certain that the facts in this appeal meet the definition of a change in circumstance; the appellant never was found to be a Convention refugee. However, there has been a passage of time since the past persecution. For the sake of completeness I will address it as well. [32] There are two views of compelling reasons. One is that the past level of persecution must be "appalling" or "atrocious". I find that a sexual assault is appalling and atrocious. Further, being threatened on a bus adds to this level of persecution. The second test is to consider the totality of the situation, including humanitarian grounds, the appellant's exceptional circumstances lead to the conclusion that it would be wrong to reject the claim despite changed circumstances. I find that it would be wrong to reject the claim as the appellant's fear of facing violence in El Salvador, her past experiences with gender-related violence, the fact that she was targeted with a threat close to the time that she left, and the country information on record that confirm that violence against women is a prevailing issue in El Salvador. For instance: Extremely violent murders of women and girls, highlighted as a major concern in the previous mandate holder's report, have increased alarmingly over recent years, reaching a situation that many of the Special Rapporteur's interlocutors described as reflecting a culture of hatred towards women and an indicator of the failure of the criminal justice system. All governmental bodies in charge of the analysis and investigation of such cases, as well as non-governmental organizations doing research on the subject, were unanimous about the disturbing proportions that this phenomenon has reached and the urgency of stepping up efforts to address it.23 [33] I find that the RPD did not address all of the relevant evidence with regards to the compelling reasons exception. Evidence of continuing psychological after-effects is a relevant consideration for the compelling reasons exception as well as an objective assessment that she experienced atrocious persecution. In this appeal, there is the report of the counsellor that supports the appellant's ongoing psychological report as a result of the events in El Salvador. In this case and in these circumstances, there are sufficient reasons to find that there are compelling reasons. SUMMARY [34] In summary, I find that the RPD erred when she did not consider all of the evidence regarding the cumulative effects of the acts of persecution and whether they led to a subjective as well as an objective basis for a well-founded fear of persecution. The RPD erred when it noted a requirement for corroborative evidence for the appellant's testimony and rejected the un-contradicted testimony that the appellant's ex-boyfriend was a gang member. It did not fully consider whether there were compelling reasons. These errors are sufficient to find that there are mixed errors of fact and law on the record and the decision should be set aside. [35] That being said, at the hearing, the RPD confirmed that state protection was not in issue at the appeal.24 The decision does not address whether state protection would be inadequate. At paragraph 35 of the decision, the RPD notes that "[a]uthorities are generally ineffective in combatting crime and the judicial system is weak."25 However, this comment is made in the context of addressing the fear of being a victim of crime being a fear faced generally by people in El Salvador. It is not made when addressing whether or not the presumption of state protection has been rebutted. In addition, while the Appellant testified that the police could not protect her and the RPD acknowledged that gangs are everywhere, the issue of whether state protection is available for the appellant was not fully explored at the hearing. I do not find that the RPD addressed state protection in its decision. Further, although there are some articles on record, I am not able to make a decision on this issue with the record before me. [36] In short, whether or not the appellant could avail herself of state protection and/or whether there is an internal flight alternative was not fully explored at the hearing or in the decision. I do not find that there is sufficient evidence for me to substitute my decision for that of the RPD in this instance. REMEDIES [37] For reasons given, the RPD decision is wrong in mixed law and fact. I am unable to confirm or set aside the RPD decision without hearing more evidence on relevant issues than that presented to the RPD on issues such as the internal flight alternative. I direct the RPD to consider that there might not be a generalized threat for reasons such as the specific threats against the appellant as well as such issues as whether there is sufficient evidence for a subjective and objective basis of the appellant's fear of persecution. [38] Pursuant to ss. 111(1)(c) of the Act, the RAD refers this matter to the RPD for redetermination by a newly constituted panel. (signed) "Patricia Broad" Patricia Broad August 3, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Canada (Attorney General) v. Ward, [1993] 2 SCR 689. 4 Available on the Immigration and Refugee Board website at Page 2: http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx#AI 5 Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559. 6 Ibid, Dezameau, at paragraph 34. 7 Exhibit 3, RPD Record, Member's decision, at paragraph 21. 8 Exhibit 3, RPD Record, Member's decision at paragraph 35. 9 Exhibit 3, RPD Record, Member's decision at paragraph 31. 10 Salibian v. M.E.I., [1990] 3 FCA 250 at 258. 11 Available on the IRB website; at page 5: http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx. 12 Exhibit 3, RPD decision at paragraph 17. 13 Exhibit 3, RPD decision at paragraph 26. 14 Exhibit 3, RPD decision at paragraph 30. 15 Maldonado v. M.E.I., [1980] 2 F.C. 302 (CA) at 305. 16 Exhibit 3, RPD Record, p. 162-168. 17 Exhibit 3, RPD decision at paragraph 30. 18 Exhibit 3, RPD Record, p. 166. 19 Exhibit 3, RPD Record, p. 167. 20 Exhibit 3, RPD Record, p. 168. 21 Exhibit 3, "Violence Against Women, Including Non-Domestic Sexual Violence, Legislation, State Protection and Support Services" Immigration and Refugee Board of Canada, Item 5.1 in the National Documentation Package, E1 Salvador, September 15, 2015. 22 Exhibit 2, See for example "Report Details how El Salvador Gangs use Rape As Weapon" from www.insightcrime.org, p.157 of the record and "El Salvador's Horrifying Culture of Gang Rape" from www.nypost.com/2014/11/06 at page 160 of the record as submitted by the appellant's counsel. 23 Exhibit 3, "Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rashida Manjoo. Addendum: Follow-Up Mission to El Salvador", United Nations Human Rights Council, February 14, 2011, Item 5.3 of the National Documentation Package. 24 Exhibit 3, RPD decision at paragraph 30. 25 Exhibit 3, page 31 of Transcript of hearing (page 45 of Exhibit 3). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : VB6-01461 RAD File No. / No de dossier de la SAR : VB6-01461