TB8-31128

RAD File / Dossier de la SAR : TB8-31128 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX Personne en cause Appeal considered / heard at Montréal, Québec Appel instruit / entendu à Date of decision October 21, 2019 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person who is the subject of the appeal Me Giselle Salinas 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] The Appellant, Ms. XXXX XXXX XXXX XXXX XXXX XXXX is a citizen of Chile. She fears returning to her country of nationality because she has suffered domestic violence by her husband, and she fears that he will look for her and harm her again if she returns. [2] The Refugee Protection Division (RPD) dismissed her claim for refugee protection. The RPD recognized that the Appellant suffers from PTSD, and is a vulnerable person. The RPD found that the determinative issue in the Appellant's claim was the State's ability to protect her. After analysing the objective country documentation and the Appellant's own circumstances, the RPD found that the Appellant could benefit from adequate State protection in Chile. [3] The Appellant challenges the RPD's findings, stating that the RPD failed to consider and address the evidence that contradicts its findings on State protection. The Appellant argues that she rebutted the presumption of State protection with clear and convincing evidence. The Appellant further argues that the RPD unduly made a credibility finding when assessing her testimony regarding the court proceedings that took place against her husband. She contends that her psychological state was not taken into consideration by the RPD when it assessed her testimony, and that the RPD's line of questioning was unclear. [4] I have completed an independent assessment of all the evidence, including the RPD and Refugee Appeal Division (RAD) records, and the record of the hearing held before the RPD. I have rejected an affidavit and two news articles submitted by the Appellant, and proceeded without holding a hearing. DECISION [5] The appeal is allowed. The determinative issue is State protection. The RPD made no findings that explicitly challenge the Appellant's credibility, and I see no reason to doubt the Appellant's sworn testimony. I find that the RPD applied the correct test for State protection, but made errors in applying it to the Appellant's situation. ANALYSIS The new evidence is not admissible [6] The Appellant is requesting to submit three new documents into evidence along with her Appellant's record. I have determined that the documents submitted by the Appellant are not admissible. My reasons are as follows. [7] In order to decide if I allow these documents to be submitted as evidence, I need to determine if the documents are admissible pursuant to subsection 110(4) of the Act1, and the criteria defined by the applicable case law2. Affidavit from the Appellant [8] The Appellant is requesting to submit an affidavit in which she clarifies some aspects of her testimony. More specifically, she clarifies some elements of her testimony regarding her knowledge of the court proceedings against her husband, which were initiated in 2016, and that the RPD concluded that she abandoned. She admits that it is not new evidence per se, but she claims that it responds to the RPD's concerns. She claims that since the Federal Court has indicated that the RAD should grant "leeway in order to allow the claimant to respond to the deficiencies" raised by the RPD3, the affidavit should be considered as part of her appeal. [9] However, the decision cited by the Appellant was overturned by the Federal Court of Appeal in a decision that has now become the main reference when it comes to new evidence at the RAD. The Federal Court of Appeal stated that "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected."4 [10] The evidence provided by the Appellant in her affidavit has not arisen since the decision of the RPD, which is dated October 18, 2018. The Appellant has not provided an explanation as to why she could not provide this evidence in her testimony during the hearing at the RPD. I find that the affidavit does not satisfy the criteria set out in subsection 110(4) of the Act, and it is not admissible as evidence. News articles [11] The Appellant has submitted two news articles that describe statistics regarding domestic violence in Chile in 2018, as well as a protest against male violence, organized in November 25, 2018. Although the articles were published, and the protest was also organized after the RPD's decision, the articles report about the issue of domestic violence in Chile over the previous years, and cover statistics that date back to before the RPD's decision. In that sense, even though they comply with the textual requirements of subsection 110(4) of the Act, they report facts that were already in the RPD record at the time of its decision. The RPD record contains ample documentation and statistics on femicide and domestic violence in Chile, all of which were considered in the RPD's decision. As these articles do not directly address the Appellant's personal situation, I find that they do not provide new and relevant evidence, and are therefore not admissible as evidence in this appeal. Request for a hearing [12] Paragraph 110(6) of the Act provides that the RAD can hold a hearing if there are new documents submitted in evidence that satisfy a number of admissibility criteria. Since I have not admitted any new evidence in this appeal, I will proceed with this appeal without holding a hearing, pursuant to Subsection 110(3) of the Act. The Appellant's allegations are credible [13] The RPD has not raised credibility as a determinative issue in the Appellant's case. However, it does conclude that the Appellant was not forthright about her interactions with the police and the reasons they have not provided her help. This is mainly because the documents from a Court proceeding started in 2016 indicate that she abandoned it, while the Appellant said that it was "denied". She also admitted that after her husband apologized, she agreed to return to him, and that's why the document indicates that the proceeding was abandoned. I do not find that the Appellant's use of the term "denied" in relation to the Court proceedings leads to the conclusion that she was not forthcoming about her attempts to seek help. [14] Having listened to the entire recording of the Appellant's testimony, I find that she testified in a direct manner, specifying when she didn't know or was not sure about the answer to a question. Her testimony contained no contradictions, omissions or clear implausibilities that would refute the presumption that her testimony given under oath is truthful. Further, the Appellant has submitted photos, police documents, and sworn declarations that corroborate the abuse she suffered at the hands of her husband, the complaints that she made, and her attempts to escape. [15] I therefore conclude that the Appellant's allegations are credible, and that she has been subject to serious psychological, physical and sexual violence at the hands of her husband. In addition, I find that the Appellant has demonstrated that her husband has threatened to severely mutilate her by gouging her eyes out or cutting out her tongue. State protection is inadequate in the Appellant's case [16] I find that the RPD erred in its analysis of the adequacy of State protection in Chile for the Appellant, who is a victim of serious threats and domestic violence. [17] In its decision, the RPD has stated the correct test for determining whether State protection is adequate. The RPD has also correctly identified the legal recourses that have been put in place to assist victims of domestic violence and punish offenders in Chile. I find that the RPD erred in dismissing the Appellant's testimony about the attempts that she has made to seek protection simply because, in its opinion, the Appellant's experience did not conform to the objective documentary evidence about the mechanisms that exist to protect women in Chile. [18] The RPD has focused its analysis of the documentary evidence on elements that confirm the existence of strong legislation and policy in Chile protecting victims of domestic violence. However, the RPD has failed to consider that the existence of legislation and policy are insufficient to conclude that State protection is adequate. In determining whether protection is adequate, it is important to analyze not merely whether a legislative and procedural framework exists in the country of reference, but also whether the State, through the police or other authorities, is able and willing to effectively implement the framework at an operational level. [19] According to the documents available at the time of the RPD's decision: "Violence against women is part of a cultural pattern with very deep roots in Chilean society. Its eradication will require prevention and attention by public services as well as the punishment of offenders. These elements, which should be part of a comprehensive policy to address the problem, are currently separate. The official response has focused on the judicial dimension, which has revealed itself to be insufficient to ensure the comprehensive protection that the State is required to provide. There needs to be a concerted and sustained response on the part of public institutions in developing prevention measures, which must include ongoing campaigns and a rights-based approach.5" [20] The RPD found that the Appellant only rarely approached the police prior to 2016, and when she did become more persistent in seeking protection, a legal proceeding was commenced against her husband, and he had to comply with a court order. The Appellant does not know what the order was, yet the RPD found that she was vague and evasive. I cannot confirm this finding, as not knowing the answer to a question does not mean that the Appellant is vague and evasive. This is especially the case, when at the outset of the hearing, the Appellant was instructed to avoid speculation and to state that she does not know the answer to a question if such is the case. [21] I find that the RPD erred in concluding that State protection was adequate, given that the Appellant's husband was issued a court order in XXXX 2016, and according to the documents in evidence6, complied with the order. Although the RPD expressed understanding that the Appellant could suffer from battered wife syndrome, and that would lead her to abandon the proceedings, it nonetheless led the RPD to the conclusion that the Appellant was reluctant to seek protection. [22] This point of view does not conform to the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, which state that "When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself." [23] Further, the RPD does not seem concerned with the fact that the Court order against the Appellant's husband was lifted in XXXX 2016, new violent incidents occurred in XXXX 20177, which led the Appellant to report to the police again, and no further proceedings were initiated and no protection orders were imposed. I find that given the procedural history of the Appellant's case, the authorities did not seem to respond seriously to the new threats and attacks from the Appellant's husband. [24] For the above reasons, I find that the Appellant has provided sufficient evidence to refute the presumption of State protection. She has shown that protection for victims of severe domestic violence such as herself is inadequate on an operational level, despite the existence of legislation criminalizing domestic violence. No internal flight alternative [25] The Appellant has testified that she attempted to relocate in other areas of Chile, far from Santiago, where she lived with her husband. The Appellant's husband, using his connections, was able to locate her within days and force her to return home8. I find that the Appellant's husband appears to have resources to locate the Appellant, and the motivation to pursue her across Chile. There are therefore no viable internal flight alternatives in Chile for the Appellant. CONCLUSION [26] I conclude that the Appellant has established that she faces a serious possibility of persecution due to her membership in a social group, namely women. [27] I, therefore, set aside the determination of the RPD, substitute it with my own determination, and conclude that the Appellant is a Convention Refugee. [28] The appeal is allowed. Zofia Przybytkowski Me Zofia Przybytkowski October 21, 2019 Date /ag 1 Subsection 110(4) of the Immigration and Refugee Protection Act: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Singh v. Canada(Citizenship and Immigration), 2014 FC 1022, at para. 55. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 54. 5 National Documentation Package, Chile, 28 April 2017, tab 5.3: Report of the Working Group on the issue of discrimination against women in law and in practice. Addendum. Mission to Chile. United Nations. Human Rights Council. 20 May 2015. A/HRC/29/40/Add.1., p.19. 6 RPD Record, p.127. 7 RPD Record, p.104. 8 RPD Record, p.139. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TB8-31128 RAD.25.02 (April 04, 2019) Disponible en français 7 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 (April 04, 2019) Disponible en français