VB9-04214

RAD File / Dossier de la SAR : VB9-04214 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 August 31, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Gabriel Ukueku 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. In the written narrative included with her Basis of Claim (BoC) form, Ms. XXXX XXXX describes the economic difficulties that her family had when she was a child. She also describes how she was sexually assaulted and raped as a child and teenager and also by her partner XXXX who abused her physically, sexually, and emotionally. In her written narrative, Ms. XXXX XXXX states that XXXX left her in October 2004 but that he continued to visit her and mistreat her. Ms. XXXX XXXX entered Canada with her brother in XXXX 2010 with the assistance of their sister who lives in Canada. Ms. XXXX XXXX returned to El Salvador two years later to visit her children whom she had left with XXXX parents. She alleges that XXXX beat her and raped her during the visit. Ms. XXXX XXXX fears being raped or mistreated if she returns to El Salvador. Her children tell her not to return because their father has not changed, and they fear for her life. Ms. XXXX XXXX had a work permit and temporary resident status in Canada until September 2015. She applied for refugee protection in April 2018. [3] The Refugee Protection Division (RPD) rendered an oral decision on the day of the hearing. The RPD noted that it had certain concerns regarding Ms. XXXX XXXX credibility, which it addressed as part of its analysis on the issue of an internal flight alternative. The RPD found that Ms. XXXX XXXX would have a viable internal flight alternative in San Salvador. While the RPD accepted that Ms. XXXX XXXX is a survivor of past gender-based violence, it found that the evidence did not establish a serious possibility that Ms. XXXX XXXX would be persecuted or a likelihood that she would be subjected to any of the types of serious harm that would make her a person in need of protection in San Salvador. In particular, the RPD found that the evidence did not support Ms. XXXX XXXX claim that XXXX would have the interest or motivation to track her down if she returned to El Salvador and relocated to San Salvador. It also found that Ms. XXXX XXXX did not provide sufficient credible evidence to establish that she would be at risk of being targeted personally by gangs in San Salvador. Finally, it also found that it would not be unreasonable in all the circumstances to expect Ms. XXXX XXXX to relocate to El Salvador. [4] Ms. XXXX XXXX challenges the RPD's findings. DECISION [5] 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 find that the RPD was correct to find that Ms. XXXX XXXX is neither a Convention refugee nor a person in need of protection. In my view, the determinative issue in this case is the issue of an internal flight alternative. The RPD correctly found that Ms. XXXX XXXX has a viable internal flight alternative in San Salvador. PROPOSED NEW EVIDENCE The evidence presented by Ms. Galdamez Velasquez is rejected [6] According to the law,3 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.4 [8] Ms. XXXX XXXX included with her appeal memorandum a copy of written statements she had already filed with the RPD. These statements are not admissible as new evidence on appeal since they already form part of the RPD's record in this case. ANALYSIS OF MERITS Ms. XXXX XXXX has a viable internal flight alternative [9] The onus is on Ms. XXXX XXXX to establish that she does not have a viable internal flight alternative in El Salvador. The two-pronged test to establish an internal flight alternative is the following.5 (1) the decision-maker must be satisfied on the balance of probabilities that the Appellant would not face a serious possibility of persecution in the internal flight alternative location or a likelihood that they would be subjected personally to one of the types of harm that would make them persons in need of protection there. (2) the conditions in the part of the country under consideration must be such that it would not be unreasonable, in all the circumstances, for the Appellant to seek refuge there. The threshold for unreasonableness is a very high one and requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant.6 The RPD did not err in its section 96 analysis [10] Counsel argues that the RPD did not adequately address Ms. XXXX XXXX claim under section 96 of the Immigration and Refugee Protection Act (IRPA). Counsel takes issue with the fact that the RPD made reference to gender-based violence rather than examining Ms. XXXX XXXX risk of persecution using the sub-category of female survivors of rape and domestic abuse. I do not agree that this was an error by the RPD. It is clear from the RPD's decision that it accepted that Ms. XXXX XXXX was a survivor of rape and domestic violence and that it understood Ms. XXXX XXXX fear as a fear of being subjected to further rape and sexual abuse if she were to return to El Salvador. Therefore, it is clear that the RPD's reference to gender-based persecution encompassed the rape and sexual abuse that Ms. XXXX XXXX had experienced and feared in the future. For this reason, I do not agree with Counsel that the RPD erred in its section 96 analysis. [11] I also do not agree with Counsel that it is not clear which standard of proof the RPD applied. It is clear from the RPD's decision that it examined whether Ms. XXXX XXXX had established a serious possibility of persecution based on the Convention ground of being a member of a particular social group due to her gender, and that it also examined whether Ms. XXXX XXXX had established, on a balance of probabilities, that she would be subjected personally to a risk of one of the types of serious harm that would make her a person in need of protection. Therefore, the RPD applied the correct standards of proof and did not err in this regard. [12] I do not take issue with the case law cited by counsel in the appeal memorandum to the effect that the RPD must make unequivocal findings on whether there exists a nexus to a Convention ground of persecution. The RPD did so in this case. The RPD examined whether the evidence established a serious possibility that Ms. XXXX XXXX would be persecuted on the Convention ground of membership in a particular social group due to her gender. It made an unequivocal finding that the evidence was insufficient to support her claim that she faced a serious possibility of gender-based persecution if she returned to El Salvador and relocated to San Salvador. As noted above, I do not find that it was an error for the RPD to frame the Convention ground as being the broader ground of gender rather than the more specific round of being a female survivor of domestic abuse and rape. The social group of female survivors of domestic abuse and rape is simply a sub-category of the larger category of the particular social group of women. The RPD's approach was not inconsistent with the Gender Guidelines [13] The RPD found that Ms. XXXX XXXX credibility was negatively affected by her failure to take any precautions for her safety before travelling to El Salvador despite returning to, and staying at, her in-laws' home where XXXX previously abused her and where he lives from time to time. Counsel argues that the RPD failed to assess the evidence in a manner that was consistent with the Gender Guidelines. Counsel argues that the RPD overemphasized Ms. XXXX XXXX failure to take precautions before visiting El Salvador in 2012. In particular, Counsel seeks to rely upon the Lavalée case7 to argue that the RPD did not take into account why, as a survivor of domestic abuse and rape, Ms. XXXX XXXX might be hesitant to take the same precautions before returning to El Salvador that someone who had not experienced the trauma she faced might take. The Lavallee case deals with battered women's syndrome and self-defence. I do not see how this case is relevant to the assessment of Ms. XXXX XXXX return to El Salvador to visit her children who were staying with her in-laws, the parents of her abuser, without taking any precautions to prevent the further abuse she claims to fear if she returns to El Salvador. I do not find that it was an error for the RPD to find that Ms. XXXX XXXX credibility was negatively affected by her return to El Salvador to visit her in-laws and her children without taking any precautions to ensure that XXXX would not be present and abuse her there. Her failure to take any precautions casts doubt on the credibility of her allegations regarding the risk she was running in returning to house where XXXX parents lived. [14] I also do not agree with Counsel that the RPD erred in drawing a negative inference from Ms. XXXX XXXX inconsistent testimony regarding the number of occasions on which XXXX threatened her with a weapon. At the hearing, the RPD told Ms. XXXX XXXX that it was not necessary for her to recount in detail the incidents of abuse that she had suffered. The RPD was careful to only question Ms. XXXX XXXX about inconsistencies that were critical to its findings in the case. Even then, the RPD was careful to limit the amount of detail it required from Ms. XXXX XXXX. Counsel argues that, due to the traumatic experiences she went through, Ms. XXXX XXXX may have been reluctant to talk about the things that happened to her and may have tried to suppress her memories of the incident. [15] I do not accept these arguments. In particular, I note that, when confronted with the inconsistency in her evidence, Ms. XXXX XXXX did not provide the explanation suggested by Counsel on appeal but rather adjusted her evidence. The issue was with Ms. XXXX XXXX inconsistent evidence regarding whether XXXX had ever used a weapon to harm or threaten her. As noted by the RPD, she initially testified that the only time he threatened her with a weapon was one year before she left for Canada in 2010. However, a letter that she submitted from her sister stated that XXXX had put a gun to her chest when she was pregnant with her youngest son who was born in 2002. When asked about this contradiction, Ms. XXXX XXXX said that there were actually two occasions when XXXX threatened her with a gun. This contradicted her previous testimony that XXXX had only ever threatened her once. In addition, there is no reference to XXXX using a weapon against her in the written narrative attached to her Basis of Claim form. I do not agree that the RPD erred in drawing a negative inference as to credibility based on these contradictions in Ms. XXXX XXXX evidence which she failed to satisfactorily explain. [16] I also do not agree with Counsel that the RPD failed to factor Ms. XXXX XXXX gender into its internal flight alternative analysis. In particular, Counsel argues that the RPD did not consider the ability of women to travel safely to the internal flight alternative and to stay there without facing undue hardship. I address these arguments in the section below in discussing the second prong of the internal flight alternative test. The RPD did not misinterpret or fail to consider evidence filed by Ms. XXXX XXXX [17] Counsel argues that the RPD failed to consider statements by Ms. XXXX XXXX sons stating that XXXX would return to his parents' home and insult Ms. XXXX XXXX, say bad things about her, and say that he wanted her dead. In my view, such statements are insufficient to demonstrate that XXXX would have the means, interest, and motivation to track Ms. XXXX XXXX down in San Salvador. As noted by the RPD, Ms. XXXX XXXX testified that she believed that XXXX was in the United States. In addition, there was no evidence that XXXX would have any way of knowing that Ms. XXXX XXXX had returned to El Salvador to live in San Salvador or that he could track her down in that city or that he had the interest in motivation to track her down there. For example, there was no evidence of XXXX inquiring into Ms. XXXX XXXX whereabouts or expected return to the country after she left. Counsel argues that there would be no logical reason for XXXX to inquire about Ms. XXXX XXXX whereabouts from her children or family because he was upset that she had abandoned her children. I do not agree. If XXXX had the interest and motivation to track Ms. XXXX XXXX down anywhere in El Salvador, one would expect that he would be asking her children or family about her whereabouts or about the likelihood that she might return to El Salvador. At the very least, the lack of such inquiries gives rise to an inference that he would lack the interest and motivation to track Ms. XXXX XXXX down in San Salvador if she returned a decade after leaving El Salvador. The RPD did not err in its consideration of risk at the hands of gangs [18] At the hearing, Ms. XXXX XXXX testified that she feared returning to San Salvador because she might be perceived as wealthy as she was returning from abroad and that this would put her at risk of serious harm from gangs. The RPD relied on the Federal Court of Appeal's decision in Prophète8 to find that any risk that she faced due to any perceived wealth did not amount to the kind of serious harm that would make her a person in need of protection in San Salvador. [19] I disagree with Counsel that the RPD erred in examining Ms. XXXX XXXX allegations of risk due to perceived wealth under the first prong of the internal flight alternative test. It was appropriate for the RPD to examine whether any risk that Ms. XXXX XXXX might face at the hands of gangs due to her perceived wealth would amount to a likelihood that she would be subjected personally to one of the kinds of serious harm that would make her a person in need of protection in San Salvador. Counsel does not dispute the RPD's finding that any risk Ms. XXXX XXXX might face at the hands of gangs, for example due to her perceived wealth, does not differ from the risk faced generally by others in El Salvador who are perceived to be wealthy. Instead, Counsel argues that the risk that Ms. XXXX XXXX might face from gangs should be considered as part of the second prong of the internal flight alternative test. [20] I do not agree. The issue under the second prong of the IFA test is whether it would be unreasonable in all the circumstances to expect a claimant to relocate to a different part of their country before seeking refugee protection abroad. Therefore, the analysis must consider whether they would face a greater or different risk in the internal flight alternative location than any risk they would likely face in their home town. For example, if there exists a high level of criminality across all parts of someone's country, it is not sufficient merely to point to the high level of criminality in an internal flight alternative location in order to find that location unreasonable as an internal flight alternative. The reason for this is that the level of criminality to which the claimant would likely be subjected in the internal flight alternative location does not differ from the general level of criminality to which they would have been subjected in their home town. [21] As with the example just given with respect to general criminality, the evidence does not establish that any risk that Ms. XXXX XXXX might face at the hands of gangs, for example due to her perception of wealth, would be any greater in San Salvador than in her home town. Therefore, any such general risk at the hands of gangs is insufficient to make San Salvador unreasonable as an internal flight alternative. However, if the risk of serious harm that Ms. XXXX XXXX would face at the hands of gangs in San Salvador was the kind of risk that would make her a person in need of protection, then this would be a reason to find that San Salvador was not a viable internal flight alternative for her. For the reasons given above, I find that the RPD was correct to find that any risk that Ms. XXXX XXXX likely would face at the hands of gangs in San Salvador is not the kind of risk that would make her a person in need of protection there as it does not differ from the risk faced generally by others who are perceived to be wealthy. [22] The Onyenwe case cited by Counsel is distinguishable as there was evidence in that case that there was a particular risk to new arrivals to the internal flight alternative city specifically which the RPD had not considered prior to finding that the claimants had a viable internal flight alternative in that city. That was not the case here, as the evidence does not establish that there is a special, greater or different risk of gang targeting, for example due to the perception of wealth, in San Salvador as compared to where Ms. XXXX XXXX lived before leaving El Salvador. [23] I also do not agree with Counsel that the evidence establishes that Ms. XXXX XXXX would face a serious possibility of persecution at the hands of gangs due to her gender. While the evidence in the National Documentation Package for El Salvador indicates that gang members often mistreat women and girls, that they consider them their property, that women are often forced to become girlfriends of gang members, etc., there was no evidence of Ms. XXXX XXXX having any such problems with gang members when she lived in El Salvador or when she returned there for a visit in 2012. The general evidence in the National Documentation Package is not sufficient to establish a serious possibility of persecution in Ms. XXXX XXXX particular case. [24] For all the above reasons, I do not agree with the arguments made by Counsel regarding the risk that Ms. XXXX XXXX would face at the hands of gang members in San Salvador. RPD did not err in failing to consider difficulties faced by women who relocate [25] Counsel seeks to rely upon evidence in the National Documentation Package for El Salvador which indicates that it is difficult for women to relocate because they earn less than men and also due to the territorial control by gang members who might perceive a woman to be a part of a rival gang.9 Counsel also points to evidence indicating that women may be easily located if they move to a different part of the country. [26] On the first point, while it is certainly unfortunate that women earn less than men and that a large proportion of women are employed in the informal sector, this, by itself, does not render relocation to San Salvador unreasonable in the sense of jeopardizing Ms. XXXX XXXX safety. As noted by the RPD, Ms. XXXX XXXX has two siblings who live in San Salvador and it is reasonable to expect that her family members would be in a position to assist her to obtain the basic necessities required to live there. In addition, Ms. XXXX XXXX does not lack education and skills. As noted by the RPD, she has completed high school and has been gainfully employed steadily in Canada for nearly a decade, including in a managerial capacity. [27] As for the evidence on the possibility of retracing women across El Salvador, this does not address the key issue in this case which is whether the evidence establishes a likelihood that Ricardo would have the interest and motivation to trace Ms. XXXX XXXX in San Salvador. For the reasons set out above, I agree with the RPD's finding that it did not. [28] Finally, as for the arguments made by Counsel about the risk Ms. XXXX XXXX might face if she were to be perceived to be associated with a rival gang, I find these arguments to be speculative. There is insufficient evidence to establish that Ms. XXXX XXXX would likely be perceived to be associated with a rival gang just because she moved to San Salvador. This is especially the case since she has family there and would not be moving there without any connections within that city. RPD did not err in assessing credibility [29] I do not agree with Counsel that the RPD focused on minor inconsistencies in Ms. XXXX XXXX evidence that were not material to her claim as a whole. For the reasons noted above, I find that the RPD was correct to find that Ms. XXXX XXXX likely embellished the extent of XXXX violence toward her, in particular the extent to which he threatened or assaulted her with a weapon. This was not immaterial to her claim as it may be relevant to an assessment of whether XXXX likely would have an interest and motivation to track her down in San Salvador to kill or mistreat her as she alleged. As noted by the RPD, there was no evidence that XXXX had approached Ms. XXXX XXXX siblings or father in order to determine her whereabouts. There was also no evidence that XXXX questioned Ms. XXXX XXXX children about her whereabouts. All but one of the attacks by XXXX against Ms. XXXX XXXX occurred in or around his home town. And, finally, Ms. XXXX XXXX testified that she believed that XXXX was in the United States. In these circumstances, the RPD did not err in finding that the evidence did not establish a likelihood that XXXX would have an interest and motivation to track Ms. XXXX XXXX down in San Salvador. [30] In my view, it was not necessary for the RPD to find that Ms. XXXX XXXX testimony about the alleged murder of her brother lacked credibility. Even if one accepted that this murder occurred, there was no evidence that the gang members who killed her brother threatened her or would likely pose any risk to her if she relocated to San Salvador. The RPD did not err in analyzing Ms. XXXX XXXX delay [31] Counsel argues that the RPD erred in attaching any significance to Ms. XXXX XXXX delay in making her claim for refugee protection because the courts have found that survivors of domestic abuse often delay in making claims due to the nature of spousal abuse and the embarrassment often experienced by survivors of abuse. [32] The RPD correctly found that a delay in making a refugee claim is not in and of itself fatal to establishing a claim. However, it may be a relevant factor when assessing the credibility of a claimant's account of the risk they would face if they returned to their country. In this case, Ms. XXXX XXXX and her brother arrived in Canada in 2010 with the assistance of her sister. She then maintained temporary resident status, either as a worker or a visitor in Canada until September 2015. Ms. XXXX XXXX then did not make her claim until approximately two and a half years later, in April 2018. When asked for the reason for her delay, Ms. XXXX XXXX did not mention any embarrassment linked to the spousal abuse she experienced. Instead, she said that she did not know anything about the refugee system. I agree with the RPD that this was not a satisfactory or credible explanation as Ms. XXXX XXXX had assistance from her sister in Canada and had managed to navigate the process to renew her status over the course of five years between 2010 and 2015. [33] In light of the above, I find that the RPD did not err in finding that Ms. XXXX XXXX delay in claiming refugee protection negatively affected the credibility of her allegations of fear and risk if she were to return to El Salvador. CONCLUSION [34] For the above reasons, I do not accept any of Counsel's reasons for why they believe that the RPD erred in this case. Therefore, I dismiss the appeal and confirm the decision of the RPD that XXXX XXXX XXXX XXXXXXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel August 31, 2020 Date JP/in 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 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 110(4). 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 6 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 7 R. v. Lavallee, 1990 CanLii 95 (SCC) 1 SCR 852. 8 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31. 9 RAD-1, National Documentation Package for El Salvador (March 31, 2020), tab 7.14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-04214 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division ComMs.ion de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français