VC1-07946

RAD File / Dossier de la SAR : VC1-07946 VC1-07947 / VC1-07948 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Date of decision June 17, 2022 Date de la décision Panel Pamela Arnott Tribunal Counsel for the persons who are the subject of the appeal Chantal Ianniciello Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Représentant€ désigné€ Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant SA), his daughter XXXX XXXX XXXX, and his wife XXXX XXXX XXXX XXXX (Associate Appellants) are citizens of Argentina. The Refugee Protection Division (RPD) found that Chile was also a country of nationality for the Appellants and denied the case on that basis. The Appellants argue that their particular circumstances as the children of exiles and the social conditions in Chile make it difficult for them to return to Chile. I agree that this is the determinative issue. [2] The Appellants are not submitting new evidence nor seeking an oral hearing. DECISION [3] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [5] The RPD correctly set out the tests and caselaw about the country of nationality. The Appellants do not dispute that Chile is a country of nationality for them. [6] The Appellants argue that the RPD did not consider their evidence about Chile. The Appellants summarize that testimony at paragraphs 20-22 of their memorandum. For the Principal Appellant, he grew up as a child of exiles and believes that he "should not be forced to avail myself of protection from the same country that stripped my family of all dignity and made us into exiles."2 For his wife, he argued that it would be unfair to force her to live in Chile and to take away his daughter's chance to grow up in a safe country with a bright future. The Appellants also testified that they were not aware of a risk to them which could form the basis for a refugee claim.3 [7] The Appellants argue that the human rights conditions in Chile make it unsafe for them. They cite a 2021 report about excessive force by law enforcement. Chile experienced a social uprising in 2019 with looting and burning in most major cities and accumulated damage to private and public infrastructure estimated at $1Billion.4 The country condition evidence indicates that, after the October 2019 protests, several well-regarded international organizations reported their concerns about the state response to the protests and the high number of excessive use of force complaints. The country condition evidence summarizes, "Chile's national police, Carabineros, committed serious human rights violations, including excessive use of force in the streets and abuse is in detention after thousands of Chileans took to the streets on and in the weeks following October 18, 2019."5 It also shows that there were investigations and sanctions against those officers who were involved in abuses of force or other illegal or improper actions.6 Since October 2019, Chile's "social outburst"7 has resulted in an intense social dialogue about the social issues contested by the Appellant. The country condition evidence also noted multiple lawsuits against police officers and politicians, pardons for convictions related to the 2019 protests, criminal investigations, a plebiscite about constitutional reform, and legislative reforms to deal with pension reforms, civil reparations and a specialized human rights office.8 [8] The Appellants were not in Chile at the time of these protests. They have not shown that the country condition evidence about law enforcement and human rights abuses apply to their specific circumstances. A successful refugee claim cannot be grounded on country condition evidence alone. While I agree with the Appellants that personal targeting or past persecution is not required in order to establish a risk of persecution,9 the claimant must establish a link between the general documentary evidence and their specific circumstances.10 I find that the Appellants' personal circumstances of being the child of exiles is insufficient evidence of a risk of human rights abuses for the Appellants in the current context of Chile. [9] The Appellants argue that they will have no state protection given that they and their extended families have consistently been in disagreement with the Chilean government. The country condition evidence notes that, as a result of the October 2019 protests, the government committed to constitutional amendments, a plebiscite, gender parity in the representative assemblies, electoral reforms, police reforms as well as ending some of the measures which sparked the riots (subway fare increases).11 Given the ongoing level of political discourse as shown by the high turn-outs in referendums and elections and "societal enthusiasm with the process",12 I find that there is less than a mere possibility that the Appellants would be personally targeted for their political opinions. In short, there is widespread political and social discourse in Chile on pensions and other issues: I find that the Appellants would not be personally targeted for being among thousands involved in this discourse. The Appellant has not shown that they have a profile such that their risk based on political opinion would be different from thousands of Chileans. [10] As the Supreme Court of Canada has noted, refugee protection is a form of surrogate protection, "coming into play upon failure of national support."13 A claimant must show that state protection is inadequate with clear and convincing evidence of the state's inability to provide protection. The Federal Court has noted that a "subjective perception that one would simply be wasting one's time by seeking police protection or by addressing local police failures by pursuing the matter with other sources of police protection, would not constitute compelling or persuasive evidence, unless the applicant had unsuccessfully sought police protection on multiple occasions".14 While the Appellants correctly note that they are not required to put their lives in danger to show ineffective state protection, they are still required to show with clear and convincing evidence that they could not obtain operationally adequate state protection. They have not done so. I find that there is insufficient evidence that the Appellants, in their particular circumstances as family members of exiles or of existing Chilean citizens, would not have state protection. [11] The Appellants note that they have a daughter born in Canada. The Federal Court has held that the concept of family unity does not exist in Canadian refugee law: Family unity is not a concept that exists in Canadian refugee law. In effect, this specific issue was discussed in Casetellanos v. Canada (Solicitor General) 1994 CanLII 3546 (FC), [1995] 2 F.C. 190 (T.D.). After reviewing section 181 and following of the Handbook on Procedure and Criteria for Determination of Refugee Status, this Court held that the definition of Convention refugee to which Canada subscribes by virtue of it being a signatory of the United Nations Convention Relating to the Status of Refugees (Geneva, July 28, 1951) does not incorporate the concept of family unity. This did not change when Parliament adopted the Act."15 In addition, the Federal Court has noted that a claimant continues to bear the onus of demonstrating that he falls within the definition of Convention refugee or protected person, regardless of family unity. Canadian refugee law does not recognize any fundamental right for refugee claimants to live together.16 The concept of family unity does not relieve a refugee claimant of the onus of demonstrating that he or she falls within the definition of "Convention refugee".17 There are other mechanisms within the law where family unity can be considered. In order for a refugee claim to be accepted, the Appellant must establish that he/she meets all of the elements of the definition as described in the Act. There is no error. [12] I thank counsel for their excellent submissions on behalf of the Appellants. CONCLUSION [13] Pursuant to section 111(1)(a) of the Act, 18 I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Pamela Arnott Pamela Arnott 17 June 2022 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit P-2, Appellants' Record, Appellants' Memoranda at p. 5, para 21. 3 Exhibit RAD-1, Transcript of RPD Hearing at p. 5, lines 1-5. 4 Exhibit RPD-1, National Documentation Package (NDP), Chile, 31 May 2021, item 2.2: ?Chile. Amnesty International Report 2021/22: The State of the World's Human Rights. Amnesty International. 29 March 2022. POL 10/4870/2022 at pp. 1-3. 5 Exhibit RAD-3, NDP, Chile, 31 May 2021 item 10.2: Chile: Police Reforms Needed in the Wake of Protests. Human Rights Watch. 26 November 2019 at p. 1. This document is unchanged in the most recent NDP. 6 Ibid., page 3. 7 Exhibit RAD-3, NDP, Chile, 31 May 2021, tab 2.9: ?Social and Political Crisis in Chile 2019-2020: Systematic and Widespread Human Rights Violations. Observatory on Violence, Criminalization and Democracy. Pierre Mouterde; Luc Allaire. June 2020 at p. 5. This document is unchanged in the most recent NDP. 8 Exhibit RAD-3, NDP, Chile, 31 May 2021, item 1.6: ??Chili: An Overview. United States. Congressional Research Service. 3 June 2020, page 1. 9 Olah v. Canada (Citizenship and Immigration), 2017 FC 921 at para. 14. 10 Prophète v. Canada (Citizenship and Immigration), 2008 FC 331 at para. 17. 11 Exhibit RPD-1, NDP, Chile, 31 May 2021, tab 2.9: ?Social and Political Crisis in Chile 2019-2020: Systematic and Widespread Human Rights Violations. Observatory on Violence, Criminalization and Democracy. Pierre Mouterde; Luc Allaire. June 2020 at p. 11 and tab 4.5: ?Chile's Fractured Democratic Consensus. Divisive Politics and Democratic Dangers in Latin America. Carnegie Endowment for International Peace. Juan Pablo Luna. 17 February 2021 at p. 3. These documents are unchanged in the most recent NDP. 12 Exhibit RPD-1, NDP, Chile, 31 May 2021, tab 4.5: ?Chile's Fractured Democratic Consensus. Divisive Politics and Democratic Dangers in Latin America. Carnegie Endowment for International Peace. Juan Pablo Luna. 17 February 2021 at p. 4. This document is unchanged in the most recent NDP. 13 Canada (Attorney-General) v. Ward, [1990] 2 FCJ No. 209. 14 Ruszo v. Canada (Citizenship and Immigration), 2013 FC 1004 at para. 51; Ferko v. Canada (Citizenship and Immigration), 2012 FC 1284 at para. 49. See also Rio Ramirez v Canada (Citizenship and Immigration), 2008 FC 1214; Kim v. Canada (Citizenship and Immigration), 2005 FC 1126; Camacho v. Canada (Citizenship and Immigration), 2007 FC 830; Canada (Attorney General) v. Ward, (1993) 2 SCR 689. 15 Canada (Minister of Citizenship and Immigration) v. Khan, 2005 FC 398 (CanLII), para. 11. See also Nazari v. Canada (Citizenship and Immigration) 2017 FC 561 (CanLII). 16 Chavez Carrillo v. Canada (Citizenship and Immigration), 2012 FC 1228 (CanLII) at paras. 15 and 17; Jawad v. Canada (Citizenship and Immigration), 2012 FC 1035 (CanLII) at para. 10; Canada (Minister of Citizenship and Immigration) v. Khan, 2005 FC 398 (CanLII) at para. 11. 17 Garcia v. Canada (Citizenship and Immigration), 2010 FC 847 (CanLII) at para. 15. 18 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-07946 VC1-07947 / VC1-07948 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français