MB9-15552

RAD File No. / No de dossier de la SAR : MB9-15552 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 Montréal, Quebec Appel instruit / entendu à Date of decision October 16, 2020 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the person who is the subject of the appeal Alexandra Diallutto-Perez 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] XXXX XXXX XXXX XXXX (the appellant) is a citizen of Mexico. [2] The appellant fears her former partner, an individual who has government contacts, with whom she had lived since May 2008 and who psychologically harassed her by taking her money, limiting her movement and considering her as his property. Although she moved, the man found her, watched her and threatened her. [3] The Refugee Protection Division (RPD) found that the appellant was not credible owing to the lack of spontaneity in her testimony. It considered that her allegation that she had stopped seeing her children since the beginning of her relationship was contradicted by the information on her Facebook profile filed by the Minister. It pointed to two important omissions in her Basis of Claim Form (BOC Form) related to the son's written testimony on the violence inflicted on him by the former partner. [4] The appellant alleges that the RPD erred in its analysis of her credibility. She submits that the contradiction raised regarding her relationship with her children is not essential to the story and that she gave a reasonable explanation to the uncertainties raised. She submits that her allegations concerning persecution in Mexico are clear in her testimony before the RPD and in her BOC Form. She states that she believed that the submission of her son's affidavit would be sufficient to present her former partner's attack on him. She submits that she demonstrated that her former partner is still looking for her and that there is more than a mere possibility that she would be subjected to persecution and that her life is in danger. [5] For the Refugee Appeal Division (RAD), the determinative issues are whether the RPD erred in its analysis of the appellant's credibility, whether the appellant could receive adequate protection from the Mexican state, and whether she had an internal flight alternative (IFA). DETERMINATION OF THE APPEAL [6] The appeal is allowed. I substitute my own decision that the appellant is a Convention refugee. ANALYSIS [7] My role is to examine all the evidence, including listening to the RPD hearing, and to establish whether the RPD made the correct decision.1 The Minister has intervened before the RPD, but not the RAD. [8] On September 18, 2020, the RAD sent the appellant a notice of new determinative issues on protection by the Mexican state and an IFA in Mexico City or Mérida. The RAD invited the appellant to file submissions on these new issues. On October 1, 2020, the appellant filed submissions in response to the RAD's notice and did not submit new evidence. The appellant is credible The RAD does not draw a negative inference about the appellant's credibility because of her Facebook photographs. [9] The RPD noted that, in her BOC Form, the appellant states that her children are angry at her and have refused to see her since the beginning of her relationship with her former partner. The Minister filed a notice of intervention concerning the appellant's credibility, arguing that the appellant stated in her BOC Form that she was angry at her children because of her relationship with her former partner. The Minister submitted a series of photographs from her public Facebook page, showing her and her children together in what appears to be a harmonious atmosphere. The Minister concludes that the appellant sought to mislead the RPD and that, if that aspect of her claim is disingenuous, there are grounds to question the truthfulness of her allegations about her former partner, even the latter's existence. The Minister submits that [translation] "the RPD is entitled to assess a claimant's credibility based on a single contradiction where the impugned evidence is a significant aspect of the claim."2 The RPD did not accept the appellant's explanations that she saw her children only during family holidays and that, on those occasions, she took pictures that she would post on Facebook. The RPD drew a negative inference with respect to the appellant's credibility, that her testimony was not trustworthy and that she did not demonstrate that her children were angry at her. [10] The appellant submits that the RPD must be cautious in making a lack of credibility finding. She alleges that the RPD based its lack of credibility finding on the fact that she seems to have a relationship with her sons while she claims that they are angry with her. She considers that this element is not essential to her story and that the important elements of her account concern the persecution that she was subjected to by her former partner, that being the main reason behind her fleeing her country. She adds that the RPD should have examined her entire testimony to assess the risk that she could face if she had to return to Mexico. The appellant claims that her testimony and BOC Form are clear with respect to her persecution, and adds that her testimony was spontaneous and that she gave clear explanations in response to the questions that she was asked. [11] The RPD erred in basing its findings primarily on the appellant's relationship with her sons. [12] The RPD had to address the issue of the contradiction between the appellant's BOC Form and Facebook photographs, specifically to respond to the Minister's intervention. However, this issue is not central to the appellant's claim. The appellant alleges that she was psychologically harassed by her former partner. These are the allegations that are central to her claim, but were not assessed by the RPD. In its reasons, the RPD addressed essentially the appellant's relationship with her sons,3 which constitutes a selective review of the claim. Even if the appellant tried to embellish her story with that of the conflict between her and her children, the RPD should have addressed the allegations of harassment and analyzed all the evidence. [13] In its intervention, the Minister submits that the RPD can reject a claim based on a single contradiction. However, for the RPD to reject a claim based on a single contradiction, the contradiction must be on a significant aspect of the claim. Here, even if the appellant tried to embellish her claim, the fact that she was angry with her children owing to her relationship with the agent of persecution is not significant. At best, it is a contradiction that can be added to other contradictions, omissions and inconsistencies on significant elements of the claim, but I do not agree that this contradiction is significant. [14] The appellant is of the view that she provided a reasonable explanation for the uncertainties regarding the status of her relationship with her sons. In this case, she explained that, although her sons were angry at her, they were still invited to all family events and therefore attended the same events as the appellant. She believes that it is reasonable to take pictures with family members during such events. [15] The RPD erred in considering that the appellant lied in her BOC Form about her relationship with her children and in drawing a negative inference with respect to her credibility. The RPD questioned the appellant about each of her Facebook photographs, asking when the photographs were taken and in what circumstances. The appellant provided a clear and consistent explanation that her family (sisters, brothers and mother) met for all important calendar holidays and her mother's birthday. Her two children were therefore present. [16] The RPD considered that it is unusual for people who are angry at one another to meet each other so often, even in a family context, and that the photographs give a general impression of happiness. The appellant recognizes that she and her sons are smiling in the photographs, which I indeed noted. However, she stated that she was unhappy about her poor relationship with her children and uses every occasion to ask them to pose with her. I believe this explanation. Nobody can say what hides behind a smile in a picture, or what happened before or after the moment was captured. [17] The RPD also confronted her about the dates on which the photographs were posted, which do not fall around holidays or other events. It considered that the date on which they were posted did not coincide with holiday dates. The appellant explained that she would sometimes receive photographs after the holidays and that the date on which the photographs were posted was not necessarily the date on which they were taken. I agree with the appellant. I believe her when she states that a picture taken at Christmas could have been posted in March; there is no evidence to conclude the contrary. The date on which a photograph is posted on social media provides no information on when it was taken. [18] In his affidavit, the appellant's son states that his mother married her former partner against his and his brother's will in 2008 or 2009. He states that after the separation, they rarely saw each other. Neither the appellant nor her son testified that they were completely angry. Even if the Facebook photographs were posted after certain holiday dates, this does not undermine the appellant's credibility. [19] I believe the appellant's explanations and do not draw a negative inference about her credibility with respect to the photographs taken from Facebook by the Minister. The appellant failed to mention the attack on her son in her BOC Form, which does not affect her credibility considering the specific circumstances of the omission. [20] The RPD noted two important omissions related to the written testimony of her son XXXX (Affidavit). In his written statement, her son testifies that first, the former partner threatened him, then beat him up, which led to hospitalization in October and November 2018. However, the RPD noted that these incidents were not in the appellant's BOC Form, but that she testified about them at the hearing. The RPD did not accept the explanation of the appellant, who apologized and stated that she believed the submission of her son's affidavit would be sufficient. The RPD pointed out that the appellant did not amend her BOC Form at the beginning of the hearing and confirmed that everything was complete and correct. It considered that these omissions were significant and undermined the appellant's credibility. [21] The appellant considers that the RPD erred in drawing a negative inference about her credibility with respect to the omission in her BOC Form of her former partner's attack on her son. She states that she did not wish to mislead the panel, but thought that the submission of her son's affidavit on that subject would suffice. [22] The last paragraph of the reasons address the omission in the appellant's BOC Form of her son's assault. This testimony is relevant since an attack by the agent of persecution on her son after her departure is an important element in analyzing the motivation of the agent of persecution, an element related to the prospective risk. [23] The RPD erred in drawing a negative inference from the omission in her BOC Form of her son's assault. The appellant left Mexico in XXXX 2018. Her son testifies in writing that the former partner assaulted him twice, in October and November, without specifying the exact dates. The appellant signed her BOC Form on November 1, 2018. The events concerning her son took place between her arrival in Canada and the signature of her BOC Form. At the hearing, she did not state whether she had found out about the assaults before or after she filled out her BOC Form. Therefore, I do not draw a negative inference from the fact that she did not mention her son's assault in her BOC Form. [24] Regarding the amendment of her BOC Form, she states that she thought that submitting the affidavit at the hearing would suffice, and apologizes for not amending her BOC Form at the beginning of the hearing. Considering that the appellant submitted the affidavit at the hearing and gave a spontaneous explanation at the beginning of the hearing, and despite the fact that she should have amended her BOC Form, I do not draw a negative inference with regard to her credibility. I considered the particular circumstances of the affidavit's submission since she submitted it at the hearing. I believe the appellant when she states that she thought that submitting the affidavit would suffice. Even if I were to consider this omission, it would not be a significant omission. [25] The appellant swore that the facts on the record were true, complete and correct. Her allegations are therefore presumed to be true unless there is a valid reason to doubt their truthfulness in assessing the evidence on a balance of probabilities standard.4 In this case, the RPD erred in its findings on the appellant's credibility. The RAD did not identify sufficient evidence which, considered cumulatively, supports a finding that the appellant's credibility on the elements central to her refugee protection claim is fatally undermined. If the appellant were to return to Mexico, she would be subjected to a serious possibility of persecution from her former partner. Allegations of violence in the BOC Form and at the hearing [26] In her BOC Form, the appellant alleges that she met her former partner in 2008. Her former partner is a well-to-do business man who has a lot of influence with the Mexican government and whose family has always been protected by politicians across the country. After a while, he became aggressive, rude and arrogant. He yelled at the appellant on a daily basis, viewed pornography and took her money. The appellant asked the man to leave several times, changed her locks and asked the police for help. He bribed the staff to enter the home and put pressure on the police. On January 23, 2009, the relationship came to an end when the man found the [translation] "woman of his dreams." Although the appellant had moved, she encountered the man on January 4, 2018, when she was at a restaurant. The next day, he went to the appellant's home and began speaking to her again, stating that he had changed. From that day on, the man watched her and followed her for ten days, accosting her friends and clients. The appellant wanted to report the incidents to the public ministry, which informed her that it could not intervene since the assaults were psychological and not physical. The appellant then left for the state of Mexico to go to her aunt's house, where the man followed her. She states that the man is a computer engineer and therefore has the means to find her. While she was staying with her aunt, the latter had two car accidents. The appellant filed several complaints to no avail. In February, the appellant went back home to Aguascalientes. The man went to her home at night, yelling. She called the police again, but no action was taken. She alleges that because of the man, she lost her clients. In March 2018, she moved in with her mother in Zapopan (Jalisco). The man followed her again and threatened her mother and her children. He grabbed the appellant's arm. The police arrived and the man was detained, but was subsequently released. The appellant received a warning because she had allegedly made false statements. She decided not to go out anymore. Her mother's car was rear-ended and the man knocked on the door at night. The appellant again sought protection from the police without success. In April, the appellant went back home. The man continued to follow her for four and half months. In September, the appellant decided to leave the country. [27] At the beginning of the hearing, the appellant made additional allegations that the man had tried to prostitute her in June 2008. She explained that she had not included them in her BOC Form because she was ashamed. The appellant demonstrated that the violence-experienced or feared-is a serious violation of her fundamental human rights. [28] The appellant fears gender-based persecution by her former partner. I have analyzed the grounds of persecution in light of the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline).5 [29] The appellant submitted that when considering whether sexual violence or domestic violence (both of which may involve mental and physical suffering) are forms of torture or cruel, inhuman or degrading treatment amounting to persecution, decision-makers should examine the definition of torture in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.6 [30] The appellant is correct. According to the Guideline, the circumstances which give rise to women's fear of persecution are often unique to women, and the issues are whether 1) the violence-experienced or feared-is a serious violation of a fundamental human right for a Convention ground and 2) in what circumstances can the risk of that violence be said to result from a failure of state protection. The Guideline recommends referring to international instruments to determine whether the conduct of the agent of persecution constitutes persecution. [31] Psychological violence and harassment with threats may be elements in persecution.7 The Federal Court recognizes that there may be persecution even without physical mistreatment.8 Article 2 of the Declaration on the Elimination of Violence Against Women9 sets out that violence against women shall be understood to encompass physical, sexual and psychological violence occurring in the family and within the general community. In its preamble, the Declaration affirms that "violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms, and concerned about the...failure to protect and promote those rights and freedoms in the case of violence against women." [32] The appellant's testimony was spontaneous. She clearly explained the different events experienced with her former partner, and I found that her testimony was credible. After reviewing her BOC Form and testimony, I noted that, in this case, her former partner had harassed her to the point that she lost her clients and had to change jobs, thereby violating her right to just and favourable conditions of work and her right to freedom. This same right to freedom was violated when the man controled her movement and actions, going as far as following her to several locations, including the home of her mother and aunt. The appellant tried to file a complaint several times, but the authorities told her that they were unable to intervene since the violence was not physical. The man's violence escalated because the appellant testified that he had violently grabbed her arm to the point of making her cry out. In addition, according to the written testimony of the appellant's son, the man was physically violent with him to the point that he had to be hospitalized. The appellant demonstrated a prospective fear. [33] The appellant demonstrated that there is a prospective fear owing to her former partner's intention to go after her. She explained that he had already found her while she had sought refuge in the City of Atizapan. He has the means to locate her because he is a XXXX XXXX XXXX, and she suspects that he used such technology and the location of her electronic devices to find her. He demonstrated in the past that, even though they were no longer together, he was still prepared to harass her and even physically attack her son, which establishes a serious possibility that he would do it again once he had the opportunity. Therefore, the appellant's safety would immediately be at risk should he find out that she had returned to Mexico. In addition, the former partner has a lot of influence on the authorities owing to his family's political power, which further increases the risk of her being found anywhere in the country. [34] After assessing the documentary evidence and considering the Guideline and international instruments, I conclude that the appellant demonstrated that the violence-experienced or feared-is a serious violation of a fundamental human right on a Convention ground, and that if she were to return to Mexico, she would face a serious possibility of persecution by her former partner. Mexico could not provide adequate protection to the appellant. [35] The appellant provided few arguments on the state's ability to adequately protect her. To rebut the presumption of state protection, refugee protection claimants must provide "clear and convincing" evidence of the state's inability to protect them. However, I have conducted a detailed analysis of the documentary evidence on the protection provided by the Mexican state to women who are victims of spousal abuse. [36] Violence against women is common in Mexico, although according to some sources, the situation is slowly changing thanks to the efforts of the Mexican state.10 According to a survey on the dynamics of household relationships, 59 percent of separated, divorced and widowed women have experienced situations of emotional or economic abuse, or physical or sexual violence in their current or previous relationship.11 According to a Mexican feminist organization, 40.1 percent of women reporting having been victims of domestic violence during their last relationship have experienced psychological abuse.12 [37] Currently, and especially in the context of the COVID-19 pandemic, services and support offered to women who are victims of domestic violence are at risk.13 According to Mexican President Andres Manuel Lopes Obrador, violence against women was the result of neoliberal policies. As for the increase in domestic violence observed during the quarantine, the president claims that 90 percent of 911 calls by women are fake. Sources have also reported budgetary cuts to the National Women's Institute, while public funding for civil society organizations has negatively impacted shelters for women victims of domestic violence. Even at the highest level of the state, spousal abuse against women is not always recognized. [38] Article 343 of the Mexican Penal Code sets out penalties for persons committing domestic violence:14 The crime of domestic violence is committed by a person who carries out acts or conducts of dominance; control; or physical, psychological, property-related or economic aggression; whether within or outside the home, against any person with whom he or she has or has had a relationship of marriage, consanguinity, affinity, adoption or cohabitation, or a couple's relationship. [emphasis added] Among Mexico's 32 states, 29 have legislation setting out penalties similar to those provided in the federal Penal Code. According to several United Nations experts, laws related to violence against women are ineffective and often not enforced. A professor explains that state agents responsible for the practical implementation of the law do not adopt a gender perspective, are not committed to women or are openly misogynistic. [39] A general law on violence against women exists in Mexico, but its implementation remains problematic. Even with measures in place to protect women victims of violence, these victims do not always file complaints since they lack trust in the system. Gaps in the protection measures laid out in the general law are documented in a report to CEDAW and clearly establish the state's inability to protect women who are victims of violence.15 [40] The appellant sought help from the police several times. She was told that she had not suffered physical violence, and therefore could not be helped. According to my analysis of the documentary evidence, although psychological violence is considered as violence against women in Mexico, authorities do not take women's complaints seriously, especially if the aggressor, like the appellant's former partner, has political influence.16 [41] After assessing the documentary evidence and considering the Guideline and international instruments, I conclude that the risk of violence faced by the appellant results from a lack of state protection. The evidence is clear and convincing: if the appellant were to speak to the authorities, it is likely that the police would not be reasonably forthcoming with serious efforts to protect her, and that, on a balance of probabilities, the protection provided by the Mexican state would be inadequate. The appellant would face a serious risk of persecution anywhere in the country. [42] The RPD did not consider the IFA at the hearing. In a notice, the RAD proposed an IFA in Mexico City and Mérida. [43] The IFA test consists of two prongs that must both be established to conclude that the IFA exists: an assessment of the risk of persecution in the IFA city and an assessment of the reasonableness of the appellant's moving to that city, considering the specific circumstances. Once the first prong is satisfied, the second prong does not have to be examined. [44] The former partner and agent of persecution is capable of locating the appellant. She states that he already found her while she was in hiding in the city of Atizapan. She adds that he is XXXX XXXX XXXX XXXX and is XXXX XXXX XXXX XXXX XXXX XXXX and locating electronic devices to find her. This suggests that as soon as he has her cellphone number, he would be able to find her. The fact that he already tried to find her by attacking her son increases the risk that he would obtain her phone number. He has demonstrated in the past that he was able to do so. The former partner also has access to police officers and politicians, as demonstrated by the appellant when she explained how he could get out of complaints and calls to the police. Police corruption at all levels in Mexico is a serious problem, even though the government has made fighting corruption its top priority.17 The appellant's former partner could bribe corrupt police officers to find her, which further increases his capacity to locate her. [45] The former partner is motivated to find the appellant. The appellant demonstrated that he has a lot of influence on the authorities owing to his family's political power, which further increases the risk that she can be found anywhere in the country. The former partner showed this in the past when he continually harassed her, even when they were no longer a couple. The fact that he attacked her son is a sign of his motivation to find her. [46] Therefore, the appellant's safety would be at risk as soon as he found out that she had returned to Mexico. [47] After analyzing the appellant's particular situation and the specific profile of her agent of persecution, I conclude that there would be a serious possibility of persecution for the appellant anywhere in Mexico should she return to the country, and that the state could not provide her with adequate protection. CONCLUSION [48] The appeal is allowed. I substitute my own decision that the appellant is a Convention refugee. (signed) Agnès Connat Me Agnès Connat October 16, 2020 Date IRB Translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Garay Moscol v. Canada (Citizenship and Immigration), 2008 FC 657, at para. 21. 3 SPR-1, Refugee Protection Division (RPD) record, RPD decision, at paras. 7 to 13. 4 Maldonado v. Canada (M.E.I.), [1980] 2 F.C. (C.A.), at paras. 302 to 305. 5 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. 6 OHCHR, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1: 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [emphasis added] 7 Bragagnini-Ore v. S.S.C. (F.C.T.D., No. IMM-2243-93), Pinard, February 4,1994. 8 Ammery, Poone v. S.S.C., [1994] F.C.J. No. 676. Herczeg v. Minister of Citizenship and Immigration, 2007 FC 2000. 9 OHCHR, Declaration on the Elimination of Violence Against Women, Article 2: Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs. [emphasis added] 10 SAR-1, National Documentation Package (NDP), Mexico, September 30, 2020, Tab 5.10: Domestic violence, including treatment of survivors of domestic violence; legislation; protection and support services available, including psychological services, particularly in Mexico City and... Immigration and Refugee Board of Canada. September 11, 2020. MEX200311.E. 11 Ibid., NDP, Mexico, Tab 5.10, at p. 3/30. 12 Ibid., NDP, Mexico, Tab 5.10, at p. 3/30. 13 Ibid., NDP, Mexico, Tab 5.10, at pp. 6 and 7/30. 14 Ibid., NDP, Mexico, Tab 5.10, at pp. 7 and 8/30. 15 Ibid., NDP, Mexico, Tab 5.10, at p. 14/30: "[c]ivil society organizations that service women victims of domestic violence all point out that judiciary institutions are the least efficient of all those who work [on the issue of domestic violence] in Mexico. ... This reality usually discourages many women from either making an initial complaint or going through the process. Sometimes this is due to the institutions having a work overload, other times, because of a lack of training, and many other times, it is because the institutional agents themselves share traditional and macho values. As a result, they hinder the care, punishment or reparation processes, re-victimizing the women or simply wear them down, by asking them to devote time and resources [the women] are lacking in order to follow unnecessarily complicated procedures; they waste their time or give them inadequate treatment, which results in procedural failures that end up invalidating claims and complaints. In many cases, even those who deliver justice side with the attackers, even more so if the latter have political power or influence, which results in more impunity. This puts women at greater risk of violence and inhibits them from speaking out or seeking support. (Professor 13 Aug. 2020)." [emphasis added] 16 Ibid., NDP, Mexico, Tab 5.10. 17 SAR-1, NDP, Mexico, September 30, 2020, Tab 10.2: Police corruption, including police affiliation with cartels and police effectiveness; state protection, including complaints mechanisms available to report instances of... Immigration and Refugee Board of Canada. September 1, 2020. MEX200314.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-15552 RAD.25.02 (January 2020) Disponible en français 14 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 (January 2020) Disponible en français