Docket: IMM-2570-17
Citation:
2017 FC 1087
Toronto, Ontario, December 5, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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YESSICA ROXANA
ZETINO TOBIAS
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JONATHAN
ALEXANDER ORTIZ ZETINO
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The present Application challenges a decision of
a Member of the Refugee Protection Division (Member) who, by a decision dated
May 19, 2017, rejected a claim for refugee protection advanced by a mother
(Applicant) and her child against their return to El Salvador. The Member set
the stage for reaching a determination on the Applicants’ claim by the
following statement:
Yessica Roxanf:l Zetino Tobias (the
principal claimant) and Jonathan Alexander Ortiz Zetino (the minor claimant)
are respectively, mother and son (collectively the "claimants"), and
citizens of El Salvador who are seeking
refugee protection pursuant to sections 96 and 97(1) of the Immigration and
Refugee Protection Act as they fear the Maras gang as well as the ex-common
law spouse of the principal claimant.
[…]
In considering this matter, the panel has
taken into account the Chairperson's Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution (the "Guidelines"), given the
allegations that the claimant is a victim
of rape at the hands of Mara 18.
[…]
The principal claimant alleges that she had
experienced extortion on a regular basis from the Mara 18 gang when she was
working at her stall at the market, however, the claimants allege that their
personalized problems with the Mara18 gang arose as a result of a particular
incident on the night of March 17, 2016. The claimants were in their home along
with one of the principal claimant's brothers, Kevin, when they let a young man
into the house who was bloody and seeking help. Shortly after the young man was
admitted into their home, Mara 18 members also came to her door and demanded
entry. It is alleged that the young man must have been a rival gang member and
the Mara 18 members were furious that the principal claimant and her brother
were hiding the boy. The principal claimant and Kevin were hit several times
and the principal claimant was sexually assaulted (the "Attack").
They were threatened with death, but ultimately told to leave and to never let
the Mara’s [sic] see them again. This incident motivated the claimants to flee
El Salvador and they started their journey on April 25, 2016, with the
permission of the principal claimant's ex-common-law partner and father to the
minor claimant, Geovanny
Alexander Ortiz ("Geovanny").
However, since then, it is alleged that Geovanny has become a member of the
Mara 18 and told the principal claimant that he would kill her in order to move
up
the ranks of the Maras. The claimants fear
returning to El Salvador due both to the gangs and Geovanny's threats.
The claimants were caught at the border
between the United States and Mexico on May 26, 2016. The claimants claimed
asylum during their detention and were released on or about June 11, 2016. The
claimant had an ankle monitoring bracelet affixed which was removed on or about
December 22, 2016. The claimants then left the United States and entered Canada
on or about January 27, 2016 [sic] at the Fort Erie border crossing and made claims
as refugees at that time.
[Emphasis added]
(Decision, paras. 1, 4, 6 and 7)
II.
The Member’s Analysis of the Evidence
[2]
The Member rejected the claim principally on the
basis of a global negative credibility finding with respect to the Applicant’s
evidence. The Member’s analysis of the evidence is as follows [emphasis added
and footnotes deleted]:
The determinative issue in this case is
credibility.
Nexus
The claimants testified that they fear gang
violence in El Salvador. As such, the panel finds that the claimants are
victims of crime or of a personal vendetta. The Federal Court has held that
victims of crime, corruption or vendettas generally fail to establish a link
between their fear of persecution and one of the Convention grounds in the
definition of Convention refugee.
However, the principal claimant has also
alleged gender based violence from both the Mara 18 and Geovanny. As such and
pursuant to the Guidelines, the panel will consider the
claimants' claims under both s. 96 and s.
97(1) of the IRPA.
(Decision, paras. 8 to 10)
Credibility
Evidence given under oath or affirmation is
presumed to be true, unless there is valid reason to find otherwise.
I find that the presumption of truth of
the principal claimant's affirmed evidence is rebutted by the following
material credibility concerns which the principal claimant did not
satisfactorily resolve. I find that the credibility
concerns demonstrate on a balance of probabilities that: her account of having
been sexually assaulted by a member of the Mara’s [sic] is not true and
further, that Geovanny does not pose a threat to the claimants.
(Decision, paras. 11 and 12)
Inconsistencies regarding the Mara 18 and
Geovanny
The panel finds that the inconsistencies
between the evidence provided in the principal claimant's June 1, 2016 Credible
Fear Interview in the United States and the evidence provided in her BOC,
personal disclosure and testimony, materially undermine the credibility of the
claimants and the credibility of their allegations.
The principal claimant alleged in her BOC
and testimony that she started a common law relationship with Geovanny in May
2007 and that he started to become violent towards her in February 2009 after
he lost his job. She further alleged that he beat her and sexually abused her
whenever he felt like it. However, the panel notes that in the Credible Fear
Interview, the principal claimant was asked about Geovanny and the length of
their relationship, to which the principal claimant indicated that they lived
together from" ... around 2009 .... ". The panel notes that this
answer is inconsistent with the principal claimant testimony and BOC which
alleges that they started living together in 2007. When asked to explain the
discrepancy, she testified that she had been in a cold room they called the
"freezer" for the first four days after the claimants were first
detained on May 26, 2016 and that because of this, she sometimes didn't know
what was being asked of her. The panel finds that this explanation does
not adequately explain the
discrepancy
because it was the claimants [sic] evidence that she was transferred from the
first facility to a shelter after four days of detention. The panel finds that
this means that when the Credible
Fear Interview took place on June 1, 2016
she had not been in the cold room for between 1-2 days. The panel therefore
finds on a balance of probabilities that the principal claimant's stay in
the cold room did not impact her sworn
evidence during the June 1, 2016 credible fear interview. As such, the panel finds
that this discrepancy undermines the credibility of the principal
claimant's allegations pertaining to her
relationship with Geovanny.
The claimant alleged that in October 2013,
after Geovanny became violent and pushed her down the stairs with the minor
claimant in her arms, she testified that she had enough and she moved out along
with the minor claimant to live on her own. The panel expressly asked the principal
claimant if there was any other reason why she left Geovanny, to which she
responded that his violence was the main reason, along with him becoming
involved with gang members. This information was also contained in the
claimant's Family Application filed in the Ontario Superior Court of Justice on
or about March 20, 2017. The panel notes that in the credible fear interview,
the principal claimant was asked about Geovanny and she advised that their relationship
ended in December 2012, when they separated. The panel notes that this answer
is inconsistent with the principal claimant testimony and BOC which alleges
that they started living together in 2007 and separated in October 2013. When
this discrepancy was put to the principal claimant she testified that she does
not know how that date got there and that maybe because of the pressure she was
under, she answered without thinking. The panel does not accept this explanation
as the principal claimant was facing potential deportation. The panel finds
on a balance of probabilities that the principle claimant would have reasonably
known that her answers
in the credible fear interview were very
important and she would not have “... answered without thinking”'. As such, the panel finds that this discrepancy undermines the
claimant's allegations
pertaining to her relationship with
Geovanny.
Additionally, when asked in the Credible
Fear Interview why they separated, the principal claimant responded that
"'[H]e had another woman and that's why we separated." The panel
notes that the claimant testified that the only reasons she separated from
Geovanny was because of his violence and that he was associating with gangs. When
these inconsistencies were put to the principal claimant she confirmed that
Geovanny did have another woman, but explained that she wasn't given time to
expand on her answer in that interview (and presumably mention Geovanny' s
violence). The panel pointed out that during the interview with the US agent,
she was able to expand on other questions. For example, when Officer Daniel
asked for the name of the minor claimant's father, the principal claimant
provided his full name, but then went on to expand upon the answer and provided
the additional information regarding the length of the relationship as noted
above. The panel asked why she could expand on the previous question but not
on the question about why she left Geovanny. The principal claimant then
explained that it was difficult to not speak face to face with someone as she
was behind a screen with a telephone. The panel
finds that her explanation does not
adequately explain the inconsistencies between the principal claimants
BOC/testimony and her credible fear interview because her explanation does
not
address how she was able to expand,
unprompted, on one answer, but not another,
particularly where further allegations of violence had the potential to assist
her asylum claim. Likewise, the panel does not accept the explanation that
not being face to face with someone impacted her answers as she was able to
provide detailed and extensive answers elsewhere in her credible fear interview.
As a result, the panel finds that this discrepancy undermines the claimant's
allegations that Geovanny was a violent person and that he was associating with
gangs.
(Decision, paras. 13 to 16)
[…]
The panel acknowledges that principal [sic] claimant
had no lawyer present during the interview, however, she did indicate during
the interview that she spoke to an attorney prior to the interview and was
prepared to proceed without an attorney being present. The interview indicates
that the principal claimant was given information on May 31, 2016 that she
was going to have the
Credible Fear Interview the following day. The panel therefore finds on a balance of probabilities that
the claimant had time to think about and mentally prepare for the interview if
she wished to
do so.
Further, at the conclusion of the credible fear interview, the principal
claimant was asked how she and the minor claimant were being treated at the
facility, to which she responded "very good." The principal claimant
had alleged that they had been in a cold room she described as like a freezer
for the first four days after the claimants were first detained on May 26,
2016, however, the claimants had been moved to a shelter in the day or two
prior to the Credible Fear Interview. In conjunction with the principal
claimant's positive response regarding the claimants' treatment
at the facility, the panel finds on a
balance of probabilities that there were no immediate external issues that
would have impacted her sworn evidence on June 1, 2016.
During the principal claimant's hearing
before the panel, the principal claimant also testified to having some
confusion about the order of interviews and the precise order of events during
her detention in the US. The principal claimant also testified that she
did not remember providing some of the answers contained in the transcribed
interview notes or otherwise testified that she did not give the answers
written down at all. The panel finds on a balance of probabilities that the
information contained in the credible fear interview transcription was accurate
because the principal claimant was well aware of the importance of the
interview and that she had been cautioned prior to the interview. Further,
as the evidence given by the principal claimant was provided more
contemporaneously in time to the alleged events which form the basis of the
claimants' claims the panel finds that her memory would more be reliable as to
the details of her allegations. Therefore, given the principal claimant's
credibility issues arising from the discrepancies noted above the panel prefers
the evidence given during the credible fear interview where it conflicts with
the evidence provided in her BOC and the hearing.
(Decision, paras. 19 and 20)
III.
The Guidelines
[3]
As mentioned twice in the decision, the Member
found the Guidelines were necessary to engage in reaching a
determination on the Applicants’ claim for protection.
[4]
As to contextual knowledge, under the heading “Special Problems at Determination Hearings” the Guidelines
state that “women refugee claimants who have suffered
sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma
Syndrome and may require extremely sensitive handling”. Further,
footnote 30 of the Guidelines states that “[t]he
UNHCR Executive Committee Guidelines on the Protection of Refugee Women, supra,
footnote 10, at p. 27, discuss the symptoms of Rape Trauma Syndrome as
including ‘persistent fear, a loss of self-confidence and self-esteem,
difficulty in concentration, an attitude of self-blame, a pervasive feeling of
loss of control, and memory loss or distortion.’ ”
[5]
Paragraph 72 of the UNHCR Executive Committee
Guidelines on the Protection of Refugee Women, EC/SCP/67 (July 22, 1991) elaborates:
It may be necessary to use a variety of
gender-sensitive techniques to obtain information from women during the
status-determination process. The recruitment and training of female
interpreters is a precondition for the most effective interviewing: - Study the
training module that has been developed on interviewing refugees.
•Be aware of gender differences in
communication, particularly regarding non-verbal communications. As an
interviewer, avoid intimidating gestures that inhibit responses. In assessing
the credibility of the female applicant, for example, do not judge it on the
basis of such Western cultural values as the ability to maintain eye contact.
•Be patient with female applicants to
overcome inhibitions, particularly regarding sexual abuse. Questions may need
to be asked in a number of different ways before victims of rape and other
abuses feel able to tell their stories. Enough time should be allowed during
the interviewing process to permit the female applicant to build a rapport with
the interviewer so she is able to recount her experiences. Do not ask for
details of sexual abuse; the important thing in establishing a well-founded
fear of persecution
is to establish that some form of it has
occurred.
• Recognize that women who have been
sexually assaulted exhibit a pattern of symptoms that are described as Rape
Trauma Syndrome. These symptoms include persistent fear, a loss of self
confidence and self esteem, difficulty in concentration, an attitude of self-blame,
a pervasive feeling of loss of control, and memory loss or distortion. These
symptoms will influence how a woman
applicant responds during the interview.
If misunderstood, they may be seen wrongly as discrediting her testimony.
•Understand that women in many societies do
not have specific information about the activities of the men in their families.
Gaps in their knowledge should not be construed as lack of credibility unless
there is other evidence of such lack of credibility.
•Provide women the opportunity to be
questioned by themselves, out of the hearing of other members of their family.
Victims of sexual abuse may not feel comfortable recounting their experiences
in front of their fathers, husbands, brothers or children.
[Emphasis added]
IV.
Conclusion
[6]
In my opinion, the Member utterly failed to
apply the Guidelines. The content of the Guidelines is not
mentioned in the decision, and there is no understanding expressed that the
Applicant’s evidence was required to be viewed through the lens of the Guidelines.
As recognized by the Member, the critical feature of the Applicant’s evidence
that required the Guidelines to be engaged was the “Attack”. The details are described in the Applicant’s
BIOC at paragraphs 8 and 9:
Four men came in very angry. They were
obviously gang members, judging by their appearances and I also recognized them
from the area. They asked us all to kneel on the ground and why we were hiding
the boy and if we knew who he was. My brother said no and they punched both my
brother and the boy. My brother was punched in his face and when he fell to the
ground, they began kicking him. I moved back so I could close the door of the
bedroom where my son was sleeping. One of the men grabbed me by my hair and hit
me on the face. They asked us again who the boy was and my brother told them we
did not know him. They asked us again and we told them we did not know him.
They asked us again who he is and I told them that it was true that we did not
know who he was. They became even angrier and they punched us both and called
someone on their phone. 'They pulled me by my hair also. Then three of the men
grabbed my brother and the other young man and left the home, leaving me with a
man called El Grenas. Once they left, El Grenas, who had tattoos all over his
body, continued asking who the boy was. I told him that we did not know and he
told me You [sic] are stupid and that's why you're going to die.
I was very scared and I began to cry while I
was kneeled on the floor. "El Grenas'' began smoking and asking me
questions about the boy. After he was done smoking he began touching me in a
sexual way. 1 was terrified and crying more. I suddenly heard my son wake up,
and he told me to open the door' (I had closed his door when the gang members
entered the home) that he needed to go to the bathroom. I did not open the
door, he began to cry as he was not able to hold it and he cried that he had
pee his pants. While my son was crying the man sexually abused me that night,
he raped me twice. He forced me to perform oral sex on him, as well, he hit me
on my face several times. When he was done, he started smoking again. I could
no longer hear my son crying and I assumed that he fell asleep. El Grenas asked
me who I wanted to be killed first, me or my son. I really thought that we
would both be murdered that night.
[7]
According to the Guidelines, the details of
a sexual assault can be a critical feature to understanding the potential
impact of the assault on the survivor’s statements that follow. In the present
case, the details of the Attack are not mentioned in the decision under review,
and there is no evidence that the Member appreciated the potential impact of
the Attack on the Applicant’s evidence.
[8]
I find that, before the conclusion was reached
on the inconsistencies in the Applicant’s evidence, the Member was required to
consider the potential impact of the Attack according to the Guidelines,
and, in particular, the passage emphasised above. Given the failure to meet
this imperative, pursuant to s. 18.1(4)(d) of the Federal Courts Act, I
find that the Member’s findings of negative credibility quoted above in the
section “The Member’s Analysis of the Evidence” are
made in a perverse and capricious manner without regard to evidence on the
record.
[9]
Accordingly, I find that the decision under
review is made in reviewable error, and, thus, is unreasonable.
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