VB9-07694

RAD File / Dossier de la SAR : VB9-07694 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision September 8, 2020 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person who is the subject of the appeal Me Alfredo Garcia 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 allow this appeal. XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Appellant) is a citizen of El Salvador. a. The Appellant was a XXXX XXXX XXXX XXXX XXXX in San Salvador. She claims that in March 2016, she was threatened by one of her students who was a gang member. She alleges that the student threatened her during one of her classes and waited outside the school for her with the gang after the student was expelled. She claims that the gang attempted to shoot her during a school sports day parade. Fearing for her life, she left the school and in XXXX 2016 went to the United States where she has relatives. Fearing expulsion due to American immigration policies, she came to Canada in XXXX 2018 where she requested refugee protection. b. The Refugee Protection Division (RPD) found that she was not credible about her claims because she only knew her aggressor's nickname though she was his XXXX, found that her corroborating evidence had no probative value (in part due to similarities between different documents) and found that her failure to claim asylum in the United States undermines her credibility with respect to her subjective fear. The Appellant argues that the RPD did not offer her the opportunity to respond to allegations raised in the Minister's intervention before the RPD, did not clearly express itself with respect to whether there was nexus to the Convention, did not consider her profile as a woman in its analysis and did not provide sufficient reason for rejecting her corroborating evidence. c. The determinative issue for the Refugee Appeal Division (RAD) is the Appellant's credibility. d. The RPD's credibility assessment is incorrect. The RPD's decision makes it unclear whether its analysis took place under Section 96 or 97 of the Immigration and Refugee Protection Act (IRPA). It did not consider Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4) in its decision. It agreed with credibility concerns raised by the Minister without indicating what were those concerns and without offering the Appellant a chance to respond. Some of its conclusions about the plausibility of the Appellant's claims were not grounded in the evidence before it. It assigned no weight or no probative value to some of the Appellant's corroborating evidence without providing reasons. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. ANALYSIS [3] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD's credibility assessment is incorrect [4] The Appellant argues that the RPD made a number of errors in carrying out its assessment of her credibility. They are: a. The RPD failed to carry out separate Section 96 and 97 analyses; b. The RPD failed to consider Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4) in its decision; c. The RPD considered credibility concerns raised by the Minister's intervention without offering the Appellant the opportunity to respond to those concerns; d. The RPD discarded several pieces of corroborating evidence without explaining why they had no probative value; e. The RPD placed undue emphasis on the Appellant's failure to claim asylum in the United States. It is unclear whether the RPD correctly carried out its Section 96 and Section 97 analyses and the RPD did not consider the Appellant's profile in its decision [5] I agree with the Appellant that the RPD neither considered her profile in its decision nor carried out distinct Section 96 and Section 97 analyses in its decision. [6] The RPD appears to consider the decision under Section 96 of the IRPA based upon its conclusion that the Appellant's credibility with respect to her subjective fear was undermined when she failed to request the protection of the United States.2 However, the RPD's intentions are unclear because there is no clear expression in its decision of whether there is nexus to the Convention. [7] Guideline 4 is not mentioned in the RPD's decision, and an application of that guideline appears nowhere in the RPD's analysis. Even in an assessment of the Appellant's credibility, Guideline 4 should have been considered when determining whether there was nexus to the Convention - namely whether the Appellant belongs to a particular social group. [8] In a Section 97 analysis, it is whether there is an objective basis for the Appellant's fear that should be considered. In that case, the Appellant's subjective fear of harm is not relevant. Due to its failure to express clearly under what grounds the analysis took place, and due to language that it used that suggests a section 96 analysis without proceeding to a section 97 analysis, I do find that the RPD applied the incorrect tests in its analysis. The Appellant did not have the opportunity to respond to concerns raised by the Minister that the RPD considered in its decision [9] With respect to the Minister's intervention before the RPD on the issue of credibility, the RPD indicated that some of the Minister's concerns had been satisfactorily explained by the Appellant. It cited the Minister's concern that the Appellant "did not become a XXXX until 2007, and so the employment information on her 2006 visa application reflected accurately that she was a XXXX XXXX."3 The RPD then indicated that it agreed with many of the Minister's remaining concerns. However, a discrepancy in the Appellant's employment information is not part of the Minister's concerns. The Minister cited the following credibility concerns in its submissions:4 a. The Appellant only declared having lived at one address in El Salvador from 1995 until August 2016 yet claims to have relocated within El Salvador to escape harm; b. Her family details were left blank in her Basis of Claim (BOC) form even though the same BOC states that she has children; c. She failed to report an attempt on her life to the Salvadoran police, which is inconsistent with her fear of being murdered by gang members; d. She overstayed her visitor's visa in the United States, did not seek the protection of the United States, and did not seek to formalize her status, which suggests a lack of subjective fear. [10] The RPD did not canvass the issue of the Appellant's relocation in El Salvador during the hearing. At the start of the hearing, the Appellant provided an updated BOC containing her family details; the RPD did not raise any concerns related to this issue. The Appellant did report at least one of the threats to her life to the Salvadoran police, which the RPD acknowledges in its decision though it assigned no probative value to the police report. The only concern raised by the Minister that was addressed by the RPD is the failure to claim asylum in the United States. It is unclear what the RPD considered to be the Minister's remaining concerns. I agree that the RPD did not provide reasons for why it agreed with many of the Minister's concerns and did not offer the Appellant the opportunity to respond. The RPD drew negative inferences about the Appellant's credibility that were plausibility conclusions not grounded in the evidence before it [11] The RPD drew conclusions that I consider to be based in its own appreciation of the plausibility of a situation rather than being based in the evidence before it. In doing so, it did not consider the objective documentary evidence on gang violence in El Salvador when it concluded that the Appellant was not credible about her claims. The objective documentary evidence offers context that lends credibility to several of the Appellant's claims. [12] For example, the RPD did not find it credible that the Appellant, as a teacher, would not openly know who was a gang member among her students.5 However, the objective documentary evidence indicates that teachers and employees of educational institutions are at risk of threats, extorsion, forced displacement and assassination.6 It also indicates that due to the prevalence of gang-activity, Salvadorans hesitate to discuss gang-related topics outside of the home.7 In this context, I do not find it surprising that the Appellant would not clearly know who was and was not a gang member among her students, which numbered 600-700 per day, according to her testimony. [13] The RPD concluded that it was not credible for a XXXX who cares for the safety and well-being of her students to "simply up and leave the school, essentially leaving her class either to their own devices, and rush to the police station to file a report against an unknown student."8 It is unclear to me why the Appellant's behaviour is not credible. The Appellant testified that other XXXX watched her class. The RPD mentioned in its decision that it was not clear what the XXXX would have done with their own classes. The RPD did not ask the Appellant how and why other XXXX were able to supervise her class. The RPD has drawn conclusions about the functioning of the school that are not grounded in the evidence before it. It is unclear to me why the XXXX XXXX would not be able to supervise her class in an emergency. [14] The RPD concluded that it was not plausible that the Appellant would not know the name of her student, though the Appellant explained that she did not yet know his name because it was the beginning of the school year and because she XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. As argued by the Appellant, this presumption appears to be the primary factor influencing the direction of the RPD's analysis. The RPD mentions that neither her students, nor her school director mention the student's name in their letters of support, and that the name of the student does not appear in the police report. In fact, the Appellant did name her persecutor, by his nickname, XXXX XXXX, and explained that this is the name that her other students used to refer to him. While it would enhance the Appellant's credibility to be able to name her aggressor more clearly, I do not find that her inability to provide his full name is enough to conclude that she is not credible about her allegations. [15] I find that the RPD overstated the Appellant's own characterization of the role that she played in encouraging her students not to join gangs. In its decision, the RPD stated that the Appellant's testimony "casts doubt on the claimant's allegations that she was, in her role as a XXXX, heavily involved in XXXX XXXX XXXX and gearing them away from gang life."9 The RPD found it not to be credible that a XXXX who had a close relationship with her students would rush out of class and report a threat to the school's director rather than attempt to engage the student on an individual basis and try to listen to him. The RPD found that these actions did not align with the picture that the Appellant painted for herself in her BOC narrative as an advocate for her students and concluded that the Appellant had embellished her role. [16] While the Appellant does state in her BOC narrative10 that she encouraged her students not to join gangs and spoke to them about the risks faced by those who do get involved in criminal structures, she does not paint herself to have a close relationship with each student or as being heavily involved in counselling her students to stay away from gang life. I find that her BOC narrative positions her role to be a XXXX XXXX who generally spoke to her students about staying away from gangs and crime. The Appellant states in her BOC that she encouraged those students who came to her for advice on how to leave criminal structures to speak to their legal guardians. I find that the Appellant's BOC does not paint her to be an advocate who took individual action with each student. The RPD detracted from her credibility on this point in error. The RPD's reasons for rejecting the Appellant's corroborating evidence are insufficient [17] The RPD incorrectly found that the Appellant's corroborating evidence had no probative value. Though it explained that it rejected the probative value of four letters11 from the Appellant's students because the letters were virtually identical, it did not address the probative value of a letter from the director of the school12 where the Appellant XXXX, or letters from employees of her son's school.13 [18] It also rejected the probative value of leases14 meant to establish that the Appellant's daughter has had to move frequently to avoid being located by the gang member who threatened her. The RPD found that the leases were all nearly identical in wording, with only the addresses and rental amounts differing. This is the only reasoning provided by the RPD when it found that they were insufficient to establish that her children have been moving yearly to avoid threats of gangs. It is not suspicious that different lease agreements would be identical and bear only different addresses and rental amounts. Many jurisdictions, including the jurisdiction in which this RAD decision is being considered, use (or recommend the use of) lease agreements bearing the same template. I find that the RPD erred in using only this aspect of the documents to do away with their probative value. [19] The RPD incorrectly gave a police report no weight because it did not accept that the Appellant did not follow up with the police due to a lack of trust in the system. I do not find that the Appellant's failure to follow up on her complaint to the police contradicts the fact that she initially went to police for protection as the RPD contends, and do not find that it is a reason not to assign weight to the police report. The Appellant testified that she made the initial complaint because it was a requirement and stated that she did not follow up with the police due to low trust in the authorities in her country. The RPD did not question the Appellant on what requirement she was referring to and did not consider objective documentary evidence relating to low trust in the policing system that the Appellant presented.15 The RPD also noted that the police report only contained the nickname of the alleged perpetrator. It is unclear whether the RPD considers the report to be fraudulent for this reason and it did not cite the available objective evidence on police reports.16 If the report is not fraudulent, it is unclear why it would have no weight since it corroborates a significant part of the Appellant's story, including her aggressor's nickname. The RPD did not fully canvass the determinative issues during the hearing [20] I have not addressed all of the RPD's conclusions about the Appellant's credibility in this decision. However, I find that there are enough errors to warrant a redetermination of the Appellant's credibility and have already noted that some key questions relating to her credibility were not posed to the Appellant during the hearing. Moreover, the RPD indicated that State Protection and the availability of an Internal Flight Alternative (IFA) are not determinative issues and did not canvass those issues during the hearing. For these reasons, I cannot substitute a decision in this case and must return the case to the RPD for redetermination. CONCLUSION [21] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) Ayanna Roberts Ayanna Roberts September 8, 2020 Date AR/dd 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 RPD Record. Reasons and Decision. Paragraph 17. Page 9. 3 RPD Record. Reasons andDecision. Paragraph 8. Page 5. 4 RPD Record. Notice of Intervention. Submissions. Pages 74-75. 5 RPD Record. Reasons and Decision. Paragraph 13. Page 7. 6 National Documentation Package (NDP), El Salvador, 31 March 2020, tab 1.6: Salvador. Situation sécuritaire. Belgium. Office of the Commissioner General for Refugees and Stateless Persons. 15 July 2019. 7 National Documentation Package (NDP), El Salvador, 31 March 2020, tab 2.3: El Salvador. Freedom in the World 2019. Freedom House. 2019. 8 RPD Record. Reasons and Decision. Paragraph 12. Page 7. 9 RPD Record. Reasons and Decision. Paragraph 13, Page 7. 10 RPD Record. Basis of Claim form. Pages 13-21. 11 RPD Record. Letters from students. Pages 98-105. 12 RPD Record. Letter from XXXX XXXX XXXX XXXX. Pages 95-96. 13 RPD Record. Letters from XXXX XXXX XXXX XXXX XXXX XXXX. Pages 107-111. 14 RPD Record. Leases signed by XXXX XXXX XXXX XXXX. Pages 113-132. 15 SAR-1. Transcription de l'audience - VB8-03045. Pages 36. Lines 1-15. 16 National Documentation Package (NDP), El Salvador, 31 March 2020, tab 10.6: Procedures for reporting a crime and obtaining a copy of a police report; whether a copy of a police report can be obtained by a person who is outside the country or by a third person. Immigration and Refugee Board of Canada. 18 September 2015. SLV105261.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07694 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français