TB9-34695

RAD File / Dossier de la SAR : TB9-34695 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 December 18, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Zohra Safi 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 XXXX XXXX XXXX is a citizen of Chile. She experienced a great deal of abuse while she lived in Chile. First, she experienced abuse at the hands of her foster parents when she was young. She then experienced domestic violence at the hands of her former partner XXXX who became controlling and abusive after she moved in with him and his parents in 2013. Ms. XXXX XXXX tried to seek assistance from XXXX parents but they defended their son and blamed her for provoking him. In XXXX 2016, there was an incident in which XXXX beat the Appellant. She called the police but, when they arrived, XXXX father told them it was a mistake and they left. Ms. XXXX XXXX ended up leaving the town she lived in just outside Santiago to go live with a friend in Santiago. She ended up running into XXXX at a grocery store near her friend's place. After this, Ms. XXXX XXXX ended up going back to live with XXXX who once again became violent with her. A friend of hers recommended that she try getting a working holiday visa to Canada. She successfully applied for one and arrived in Canada in XXXX 2017. She claimed refugee protection approximately XXXX XXXX later in September 2018. [3] The RPD noted that it had some credibility concerns relating to Ms. XXXX XXXX delay in claiming asylum. In particular, the RPD had concerns with her explanation that she decided to seek refugee protection after being told that applying for a renewal of her working holiday visa was riskier than claiming asylum, as it was based on a lottery. Nevertheless, the RPD found that the issues of internal flight alternative and state protection were determinative in this case. The RPD found that Ms. XXXX XXXX has a viable internal flight alternative in Temuco and that she would have access to adequate state protection there. Ms. XXXX XXXX challenges these findings. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct.1 In rendering this decision, I have had careful regard to the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4). In my view, the determinative issue in this case is the issue of an internal flight alternative. I find that the RPD erred in failing to take into account a psychological report submitted by Ms. XXXX XXXX. However, I do not accept any of counsel's arguments in relation to the report or for why she believes Ms. XXXX XXXX would not have a viable internal flight alternative in Temuco. APPELLANT'S AFFIDAVIT [5] I note that Ms. XXXX XXXX counsel submitted on appeal an affidavit sworn by Ms. XXXX XXXX in which she restates the evidence in the case and makes arguments as to the errors she believes the RPD made. Counsel has made no arguments regarding the admissibility of the affidavit as new evidence and, indeed, the affidavit does not appear to have been submitted as proposed new evidence. If the affidavit was submitted as proposed new evidence, it is not admissible as such as it simply restates evidence that was already before the RPD and makes arguments that are taken up in the appeal memorandum. ANALYSIS Internal flight alternative [6] The onus is on Ms. XXXX XXXX to demonstrate that she does not have a viable internal flight alternative in Chile. The two-pronged test to establish an internal flight alternative is the following.2 (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 he would be subjected personally to one of the types of harm that would make him a person 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.3 First prong of internal flight alternative test [7] Counsel made two arguments for why the RPD erred in its analysis relating to the first prong of the internal flight alternative test. First, counsel argues that XXXX father has influence with politicians and the police and that he also has all of her personal identifying information, all of which would permit him to track her down anywhere in Chile. I disagree. [8] This argument is not supported by the evidence in this case. The only evidence of any influence that the father of the partner might have, was that he was good friends with the XXXX of the XXXX XXXX XXXX XXXX XXXX XXXX. The only evidence of his having influence over the police was that the police left after XXXX father told them they had been called by mistake when Ms. XXXX XXXX had called them after XXXX beat her in 2016. I agree with the RPD that there was no evidence that XXXX father has any influence over politicians or police outside of the town where Ms. XXXX XXXX lived with XXXX and his parents. There was also no evidence in this case that XXXX father had all of Ms. XXXX XXXX identifying information and that he or XXXX would be able to track her to Temuco this way. In addition, there was no evidence that would establish a continuing interest and motivation of XXXX parents to track down Ms. XXXX XXXX and persecute her. [9] Counsel's only other argument under the first prong of the internal flight alternative test is that Ms. XXXX XXXX would need to seek employment and would be more visible in public, making it impossible to keep her identity low-key and thus making her more vulnerable to risk from XXXX. I note that Ms. XXXX XXXX herself did not raise this concern at the hearing. I also note that Ms. XXXX XXXX testified that her previous jobs were XXXX in nature, and this despite the fact that she studied XXXX XXXX. I find it speculative to argue that Ms. XXXX XXXX employment would make her more visible to the public, this would especially be the case if she were to end up performing similar XXXX work as in the past. [10] For the above reasons, I do not agree with the arguments that Counsel has made on appeal as to why Ms. XXXX XXXX would face a serious possibility of persecution if she were to relocate to Temuco. Second prong of internal flight alternative test [11] Counsel's main argument with respect to the second prong of the internal flight alternative test relates to a psychological report submitted by Ms. XXXX XXXX to the RPD. In fact, this is Counsel's main argument on the issue of an internal flight alternative. Counsel argues that the RPD failed to examine or mention a psychological assessment report which was produced by a counsellor and supervising psychologist based on a two-hour interview.4 The report states that Ms. XXXX XXXX "worries excessively about her safety and wellbeing should she return to Chile." It also provides a provisional diagnosis that she would meet the criteria for XXXX-XXXX XXXX XXXX and XXXX XXXX XXXX with XXXX XXXX. The report states that "[g]iven her current state of affective functioning, re-exposure to her country of origin will likely evoke a psychological decompensation." The report also states that ongoing psychological counselling is indicated. Counsel argues that the report would have supported Ms. XXXX XXXX claim if considered by the RPD. [12] I agree with Counsel that the RPD erred in failing to take the report into account. The RPD took into account a separate report submitted by Ms. XXXX XXXX which was produced by a placement student at the XXXX XXXX XXXX XXXX.5 However, the RPD appears to have overlooked the psychological report produced by the XXXX XXXX XXXX XXXX. Having reviewed the psychological report, I do not find that it establishes that it would be unreasonable for Ms. XXXX XXXX to relocate to Temuco. First of all, I note that the authors of the report were not specifically asked about any risk associated with a return to Chile in a different location where Ms. XXXX XXXX did not face a serious possibility of persecution or the likelihood of serious harm. The authors were simply asked about the risk of re-traumatization related to her return to Chile. There is no sign that the authors of the report turned their minds to the possibility that Ms. XXXX XXXX would be able to return to a location where the RPD and the RAD found that she would not face a serious possibility of persecution or the likelihood of serious harm. [13] Second, I note that the authors of the report only speak of the likelihood of psychological decompensation-in other words, a worsening of Ms. XXXX XXXX psychological symptoms, if she returns to Chile. They do not indicate that Ms. XXXX XXXX life and safety would be jeopardized by a return to Chile. I can certainly understand the concern that Ms. XXXX XXXX psychological symptoms would likely worsen if she were to return, even to a location where there was no serious possibility that she would be subjected to persecution. However, there was no evidence in this case to establish that Ms. XXXX XXXX would not be able to access the kind of ongoing psychological counselling recommended in the report to assist her with any worsening of her psychological symptoms. For these reasons, I do not agree with counsel that the report establishes that it would be unreasonable to expect Ms. XXXX XXXX to relocate to Temuco. [14] The only other argument made by Counsel under the second prong ofhte internal flight alternative test is that Ms. XXXX XXXX has no family support in Chile. I would note that Ms. XXXX has no family support in Canada either. Also, it is not accurate to say that Ms. XXXX XXXX has no family support in Chile. She does have a sister in Santiago who she is in touch with every day. Even if Ms. XXXX XXXX sister is facing her own problems, she would at least be geographically closer to Ms. XXXX XXXX than she is presently. In addition, Ms. XXXX XXXX continues to have friends in Chile who could function as a support network for her. [15] As a result of the findings set out above, I do not have to address the issue of state protection. CONCLUSION [16] I have a great deal of sympathy for Ms. XXXX XXXX because of the difficult experiences she has had in her life and her current mental health issues. However, for the reasons set out above, I dismiss the appeal and confirm the decision of the RPD that she is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel December 18, 2020 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 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). 3 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 4 RPD Record, Exhibit 6. 5 RPD Record, Exhibit 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-34695 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