THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2018 FC 705

Date: 20180706 Docket: IMM-80-18 Citation: 2018 FC 705 Vancouver, British Columbia, July 6, 2018 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant and REINA DE LA PAZ MOREIRA CHAVEZ Respondent JUDGMENT AND REASONS I. Overview [ 1 ] This is an application for judicial review of a decision of the Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada, dated November 27, 2017, which found the Respondent to be a Convention refugee [the Decision].

The Applicant is the Minister of Citizenship and Immigration [the Minister], who seeks to set aside the Decision and refer the matter back to the RPD for redetermination. [ 2 ] As explained in more detail below, this application is dismissed, because I have found that the RPD did not err in granting Convention refugee status to the Respondent in the absence of particularized risk, in its state protection analysis, or in its internal flight alternative analysis. II. Background [ 3 ] The Respondent, Reina de la Paz Moreira Chavez, is a citizen of El Salvador. In 1999, she was attacked by unknown men.

She was not robbed, but she was harmed physically, as a result of which she was hospitalized for approximately a week. In 2001, she left El Salvador and entered the United States [US]. As she explains in the narrative that accompanied her Basis of Claim [BOC] form, she did not make an asylum claim in the US, because she was able to obtain a work permit there. That permit was cancelled in approximately 2007, after which the Respondent remained in the US as an undocumented worker.

She had expected that immigration reform would allow her to acquire legal status, but in 2017 she concluded that this was unlikely and, fearing deportation to El Salvador, she left the US and entered Canada on April 21, 2017. [ 4 ] The Respondent claimed refugee protection in Canada. Her BOC describes the 1999 attack and explains that she has not recovered from the trauma of the attack. She states that while she was in the US, even without status, she felt safe and was able to suppress the memory of the attack.

However, as the risk of deportation increased, she became more anxious and afraid and felt re-traumatized. She therefore decided to make a refugee claim in Canada, where her sister and her sister’s family live. III. Refugee Protection Division Decision [ 5 ] The RPD summarized the allegations in the Respondent’s BOC, including the 1999 attack. It also noted that, at the hearing, she testified as to the circumstances in which her father had been extorted and killed by criminal gang members in 1980. The RPD found the Respondent to be a credible witness and believed what she had alleged in support of her claim.

However, it found that there was insufficient evidence that the perpetrators of the 1999 attack would remember her, pursue her, and harm her again if she were to return to El Salvador. It concluded that the attack was

an act of random criminality. [ 6 ] Nevertheless, the RPD performed a forward-looking assessment and concluded that the Respondent, as a woman of significant and particular vulnerabilities, would face a serious possibility of persecution should she return to El Salvador.

This conclusion was based on the Respondent’s profile as a single woman, with no education, returning to her country after many years, with little family support, and suffering from serious and lasting trauma, which made her resilience and resourcefulness limited. [ 7 ] In support of its description of the Respondent’s profile, the RPD noted that she is now 55 years old and testified that she did not graduate from high school, that she is not married, and that she had lived with her mother and two sisters before leaving El Salvador.

The RPD stated that it appeared the Respondent has never lived on her own and that, while one of her sisters remained in El Salvador, they have not seen each other for 15 years and it could not be expected that the Respondent would be able to live with that sister and her family. [ 8 ] The RPD observed that, because the Respondent had been out of the country for so long, her return would draw immediate attention to her.

It also considered a psychologist’s report and found that the 1999 attack and the death of her father had had a lasting and dramatic impact on her, which affected her ability to cope and be resilient and made her a particularly vulnerable woman.

[9] The RPD then concluded that the country condition documentation [CCD] indicated that El Salvador is one of the most dangerouscountries in the world for women, citing material from the National Documentation Package for El Salvador in support of thisconclusion.

It found that, given the Respondent’s vulnerable profile and the country conditions, she had established that she had a well-founded fear of persecution should she return to El Salvador. [10] Turning to state protection, the RPD again cited material from the CCD, concluding that there was clear and convincing evidencethat the state would be unable or unwilling to protect her, as the documentary evidence indicated that the security forces are corrupt andunable to offer protection to citizens against criminal groups. [11] The RPD then considered the possibility of an internal flight alternative [IFA] within El Salvador but found that no viable IFAexisted. [12] The RPD therefore found that the Respondent was a Convention refugee because, upon returning to El Salvador, she would face aserious possibility of persecution based on her gender.

IV. Issues and Standard of Review [13] The Minister raises the following issues for the Court’s consideration: A. Did the RPD err in granting Convention refugee status to the Respondent in the absence of particularized risk? B. Did the RPD err in finding that state protection was unavailable to the Respondent? C.

Did the RPD err in finding that the Respondent does not have a viable IFA? [14] The parties agree, and I concur, that these issues are to be considered on a standard of reasonableness, such that the role of theCourt is to determine whether the Decision falls within a range of possible, acceptable outcomes, defensible in respect of the facts andlaw. V. Analysis A. Did the RPD err in granting Convention refugee status to the Respondent in theabsence of particularized risk? [15] The Minister notes that the Respondent did not initially assert a claim for refugee protection based on her gender.

Rather, thenarrative submitted in support of her BOC surrounds the attack she experienced in 1999. However, the transcript of the hearing beforethe RPD indicates that the possibility of a claim based on the Respondent’s gender was raised during the hearing, and the Minister doesnot argue that it was an error on the part of the RPD to accept her claim based on a ground of that was not initially asserted. [16] Rather, the Minister takes the position that the RPD erred by accepting the Respondent’s claim in the absence of any personalizedrisk based on her particular circumstances.

The Minister submits that there was no evidence before the RPD that the Respondent eitherwas targeted or will be targeted personally. Rather, the RPD relied only on general country condition documents in support of its findingthat she is at risk in El Salvador.

The Minister relies on Palacios v Canada (Minister of Citizenship and Immigration), 2011 FC 950[Palacios], at paras 20-21, in support of its position that a claimant must establish a personalized risk based on his or her personalcircumstances and that even a high risk that a person will be targeted as a victim of crime is not necessarily a particularized risk. [17] I agree with the Respondent’s position that Palacios does not assist the Minister, as the passages from the decision relied upon bythe Minister relate to the Court’s analysis of the availability of protection under s 97 of the Immigration and Refugee Protection Act, SC2001, c 27 [IRPA].

While a personalized risk must be established to succeed in a claim for protection under s 97, this requirement doesnot apply to a claim for Convention refugee status under s 96 of IRPA. [18] This is clear from Salibian v Canada (Minister of Employment and Immigration), (FCA), [1990] 3 FC 250(FCA), in which the Federal Court of Appeal held, at paragraph 16, that the then Refugee Division erred in concluding that, for theclaimant in that case to be eligible for refugee status, he had to be personally a target of acts directed against him in particular.

The Courtexplained, at paragraphs 17 and 19, that there is no need, in order to claim Convention refugee status, to show either personal persecutionof the claimant, that there had been persecution of the claimant in the past, or that the claimant would himself or herself be persecuted inthe future.

The Court further adopted, at paragraph 18, the following description of the applicable law: In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidencethat an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in thecountry of origin.

In the context of claims derived from situations of generalized oppression, therefore, the issue is notwhether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment orabuse is sufficiently serious to substantiate a claim to refugee status.

If persons like the applicant may face serious harm forwhich the state is accountable, and if that risk is grounded in their civil or political status, then she is properly considered tobe a Convention refugee. [19] I therefore find no error on the part of the RPD in arriving at its finding that the Respondent was at risk of gender based persecutionin the absence of particularized risk. [20] The Minister also argues that the RPD committed errors in arriving at this finding based on the record before it. The Minister

submits that the CCD does not indicate that only women are at risk in El Salvador but, rather, actually indicates that women are lesslikely than men to be killed in that country. I find no merit to this submission.

The CCD referenced by the RPD in its decision indicatesthat, while men are far more likely to be murdered, women are significantly more likely to experience inter-familial, sexual, or economicviolence and that, on top of everyday violence already faced by women, ongoing gang conflict has led to an increase in some of the mostheinous acts of violence, including sexual violence, against women. [21] The Minister also challenges aspects of the RPD’s findings as to the Respondent’s profile.

The RPD’s finding of risk was not basedsolely upon the Respondent’s gender, or even her profile as a single woman, but was also based upon her particular vulnerabilities. TheMinister argues that there was no evidence supporting the RPD’s conclusion that the Respondent would not be able to live with her sisterwho remained in El Salvador, which conclusion appears to underlie the RPD’s description of her profile as including little familysupport. However, the evidence was that the Respondent had been away from El Salvador, where her sister lives, for 15 years.

TheMinister is correct that there was no particular evidence before the RPD as to the Respondent’s relationship with her sister. However I donot regard the conclusion that she was unlikely to reside with her sister and the sister’s family after a 15 year absence to be outside therange of acceptable outcomes.

Certainly, the presence of the Respondent’s one sister in El Salvador does not undermine thereasonableness of the RPD’s description of her profile as returning to her country with "“little”" family support. [22] The Minister similarly argues that the RPD unreasonably concluded that the Respondent would attract immediate attention, byreturning to El Salvador after having been out of the country for so long, without providing any explanation for this conclusion.

I readthe RPD’s reasoning to be that the mere fact of the Respondent’s return to her country after a decade and a half of absence would benoted in her community, and I do not regard this reasoning to be unreasonable. [23] The Minister is correct in pointing out that the RPD erred in describing the Respondent as having no education. The RPD states thatshe did not graduate from high school. This is clearly a factual error, as the evidence before the RPD was that the Respondent completedtwo years of postsecondary education and received a diploma in the area of health studies.

However, I cannot conclude that this factualerror alone undermines the reasonableness of the Decision. While it alters the Respondent’s profile, such that she cannot be described asuneducated, the RPD’s description of her as a woman of significant and particular vulnerabilities was based on several aspects of herprofile, including in particular the psychological component.

The RPD describes her limited resilience and resourcefulness resulting fromthe trauma she had experienced in El Salvador, which conclusion was supported by expert psychological evidence that the Minister hasnot challenged. [24] With respect to RPD’s finding that the Respondent had limited resilience and resourcefulness, the Minister notes that she moved tothe US, lived and worked there for 15 years, and then moved to Canada by herself. The Minister submits that these facts make theRPD’s finding unreasonable.

However, this argument amounts to a request that the Court interfere with the RPD’s weighing of theevidence before it, which is not an appropriate role for the Court sitting in judicial review of an administrative decision. [25] In conclusion, I find that the Minister has raised no basis for the Court to interfere with the RPD’s conclusion that, given theRespondent’s vulnerable profile and the country conditions in El Salvador, she has established a well-founded fear of persecution. Itherefore turn to the Minister’s arguments surrounding the RPD’s state protection and IFA analysis. B.

Did the RPD err in finding that state protection was unavailable to theRespondent? [26] The Minister notes that the Respondent did not seek protection of the police before leaving El Salvador and submits that the RPDunreasonably found that the Respondent had rebutted the presumption of state protection. The Minister relies on authorities for theprinciples that (

a) the presumption of the availability of state protection is harder to rebut in a functioning democracy such as ElSalvador; (

b) an applicant for refugee protection is required to demonstrate that he or she took all objectively reasonable efforts to obtainlocal protection before seeking refugee production abroad; and (

c) a claimant cannot simply rely on his or her own belief that stateprotection will not be forthcoming without testing it (see Poczkodi v Canada (Minister of Immigration, Refugees and Citizenship), 2017FC 956 at paras 39-40, and Ruszo v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 [Ruszo] at paras 32-33). [27] In contrast, the Respondent refers to the decision in Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR689 [Ward], where the Supreme Court of Canada noted that it is only in situations in which state protection might reasonably have beenforthcoming that a claimant’s failure to approach the state for protection will defeat the refugee claim.

To somewhat similar effect, atparagraph 33 of Ruszo¸ Chief Justice Crampton’s explanation of the onus upon a claimant, to demonstrate efforts to seek state protection,is qualified as applying in the absence of a compelling or persuasive explanation for failing to do so. [28] Applying these principles to the reasoning of the RPD in the present case, I find no reviewable error in its state protection analysis.While the RPD made its finding based on the CCD, and the Minister is correct that there was no evidence of efforts by the Respondent toseek state protection, the RPD’s analysis based on the CCD is reasonable.

It concluded based on the documentary evidence that securityforces in El Salvador are corrupt and unable to offer protection to citizens against criminal groups. It referred in particular to evidencethat laws against rape are not effectively enforced and that there is widespread impunity for aggressors.

In my view, the RPD’s reasoningfalls squarely within the circumstances contemplated by Ward. [29] Moreover, I agree with the logic of the submission by the Respondent’s counsel at the hearing of this application, to the effect that,in the particular circumstances of this case, there would have been very limited probative value in efforts made by the Respondent toseek police protection before leaving El Salvador, as that would have been at least 15 years ago. Such efforts would therefore haveprovided little insight into the availability of state protection under the circumstances that now exist 15 years later. C.

Did the RPD err in finding that the Respondent does not have a viable IFA? [30] The Minister’s argument surrounding IFA is, at least in part, similar to the position advanced on state protection, i.e. that it was

unreasonable for the RPD to find that there was no viable IFA in El Salvador in the absence of any efforts by the Respondent to move toanother part of the country to seek safety. Again, I find compelling the Respondent’s submission that such efforts 15 years ago wouldoffer little insight into the viability of an IFA under the circumstances that exist today.

Moreover, this Court has held that there is noonus on a claimant to personally test the viability of an IFA before seeking surrogate protection in Canada (see Alvapillai v Canada(Minister of Citizenship and Immigration) (1998), 52 FTR 108 at para 3). [31] The Minister refers to the two-part test applicable to assessment of the viability of an IFA, and principles surrounding theapplication of that test, and argues that the RPD neither referred to nor applied the test. This test requires that, to find a viable IFA, theRPD must be satisfied: (

a) that there is no serious possibility of the claimant being persecuted in the proposed IFA; and (

b) that, in all thecircumstances including circumstances particular to the claimant, conditions in the IFA are not such that it would be unreasonable for theclaimant to seek refuge there (see Rasaratnam v Canada (Minister of Employment and Immigration), (FCA), [1992]1 FC 706 at para 11). [32] In my view, the RPD’s reasoning, although very brief, is fully intelligible and, while it does not expressly set out the test, itdemonstrates no misunderstanding of the test or failure to apply it.

The RPD finds that there is no viable IFA for the Respondentanywhere in El Salvador, because it has found that she would face a serious possibility of being persecuted throughout the country. Thepossibility of a viable IFA was eliminated under the first part of the applicable test. Moreover, this is a reasonable conclusion based onthe RPD’s findings as to the conditions faced by women in El Salvador, which are not related to any particular part of the country. [33] Having found no reviewable error on the part of the RPD, this application for judicial review must be dismissed.

Neither partyproposed any question for certification for appeal, and none is stated. JUDGMENT IN IMM-80-18 THIS COURT’S JUDGMENT is that this application for judicial review is dismissed. No question is certified for appeal. "Richard F. Southcott" Judge OFEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-80-18STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v REINA DE LA PAZMOREIRA CHAVEZPLACE OF HEARING: vancouver, british columbiaDATE OF HEARING: JUNE 28, 2018judgment and reasons: SOUTHCOTT J.DATED: JULY 6, 2018 APPEARANCES: Hilla Aharon For The applicantRobin D.

Bajer For The respondent SOLICITORS OF RECORD: Attorney General of Canada Vancouver, British Columbia For The applicant Robin D. Bajer Law Office Vancouver, British Columbia For The respondent