Prompt:
What standard of review does this Federal Court of Canada decision apply to immigration decisions?

Izumi v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-03 Neutral citation 2023 FC 1 File numbers IMM-7858-21 Decision Content Date: 20230103 Docket: IMM-7858-21 Citation: 2023 FC 1 Ottawa, Ontario, January 3, 2023 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN: JUNKO IZUMI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [1] The Applicant, Junko Izumi, seeks judicial review of a decision dated October 12, 2021, by a Senior Immigration Officer (the “Officer”) with Immigration, Refugees and Citizenship Canada (“IRCC”). The Officer refused the Applicant’s application for permanent residence on humanitarian and compassionate (“H&C”) grounds, pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). [2] The Officer found that the Applicant provided insufficient evidence to indicate that she would experience hardship upon removal to warrant relief on H&C grounds. [3] The Applicant submits that the Officer erred in applying the statutory test for exercising discretion under section 25 of IRPA, engaged in an improper consideration of the Applicant’s evidence, and conducted an imbalanced assessment of the application as a whole. [4] For the reasons that follow, I find the Officer’s decision is unreasonable. This application for judicial review is granted. II. Facts A. The Applicant [5] The Applicant is a 53-year-old citizen of Japan. Throughout her childhood, the Applicant, her mother, and her brother were subject to domestic violence by her father. [6] The Applicant claims she pursued travel and education abroad as soon as she was able, to escape these circumstances. In 1991, the Applicant obtained a bachelor’s degree in linguistics at Konan University in Kobe, Japan. She worked as an office administrator for three years and then traveled to Australia. In 1995, the Applicant obtained a language/tourism certificate from the Williams Business School in Sydney, Australia. [7] After completing her education in Australia, the Applicant returned to Japan and worked as a secretary at a language school for one year, while living in her parents’ home. Her father was continually abusive during this time. [8] The Applicant first entered Canada on a working holiday visa in March 1999, which was extended until March 2000. She had a valid visitor visa between February 21, 2000 and August 21, 2000. [9] In her H&C application, the Applicant submitted that she returned to Canada in 2004. She claims she has called Canada home and worked here since 2004 as a cook. She also owns an income-producing property in Japan, which she has owned since 2001. [10] The Applicant had another valid visitor visa between January 15, 2008 and May 10, 2008. The Applicant remained close to her mother and in 2010, she returned to Japan to be with her mother, who was sick with ovarian cancer. Her mother passed away in June 2010. [11] The Applicant has had the same address in Toronto, Ontario since March 2009. Her passport and her statement filed in support of her application indicate that she would leave Canada for several weeks at a time to travel abroad, re-entering Canada as a visitor and working here without authorization. Despite this travel, the Applicant claims she had established her home in Canada, with a community and ongoing employment. [12] The Applicant was granted a multiple-entry extended stay temporary resident visa (“TRV”) on December 3, 2016, which was valid until November 30, 2021. In 2016, the Applicant returned to Japan for three weeks when she needed surgery and stayed at her father’s home during this time. She claims that her father became more abusive to her during her stay. [13] The Applicant’s father passed away in 2019. The Applicant’s brother resides in Japan and now runs the family roofing business. She does not have a positive relationship with her brother or his family. [14] In August 2019, at the request of Applicant’s counsel, a clinical psychologist conducted an independent psychological assessment for the Applicant. This involved a clinical interview and a psychological test known as the Minnesota Multiphasic Personality Inventory F-PTSD Scale (“MMPI”). The assessment concluded that the Applicant continues to experience the “deleterious psychological after-effects” of being “trapped in a psychologically destructive, abusive family in Japan.” The assessment also resulted in the Applicant’s diagnosis of stressor-related disorder with prolonged duration, with dissociative and stress-response symptoms, requiring ongoing mental health treatment. [15] The Applicant claims that Canada has provided her with a safe place away from her abusive upbringing in Japan and has allowed her to pursue the process of overcoming the ongoing negative impacts of this abuse. [16] The Applicant first applied to regularize her status in Canada in December 2019, submitting her initial application for permanent residence on H&C grounds. This initial application was refused in a decision dated March 19, 2021 (“March 19, 2021 Decision”). The Applicant filed an application for judicial review of the March 19, 2021 Decision, which was settled and sent back for reconsideration. [17] On reconsideration, the Applicant filed further documents in support of her application, including 20 letters of support from people in her community and updated H&C submissions by her counsel. The application was again refused in a decision dated October 12, 2021 (“October 12, 2021 Decision”). This decision is the subject of this application for judicial review. B. Initial Decision [18] In the March 19, 2021 Decision, the initial officer found that the Applicant should not be able to benefit from the time she has spent working illegally in Canada since 2004, as this would encourage people to remain in Canada illegally in order to better position themselves for H&C relief, citing Joseph v Canada (Citizenship and Immigration), 2015 FC 904. The officer therefore gave little weight to the Applicant’s establishment in Canada from 2004 onwards, and attached negative weight to her “disregard for the immigration laws of Canada.” [19] The officer then considered the Applicant’s submissions and evidence regarding her experience of domestic violence and the psychological assessment indicating the need for ongoing treatment. The officer noted that the Applicant neglected to continue treatment, despite the recommendation to do so, as she cited the lack of funds for continued mental health treatment despite providing evidence of financial stability. The officer pointed to accessible counselling resources for Japanese nationals and visitors to Canada. The officer did not find the Applicant’s experience of abuse to be an exceptional circumstance warranting H&C relief. [20] The officer considered the Applicant’s income-producing property in Japan, her financial self-sufficiency, and her ability to travel. The officer found insufficient evidence to demonstrate that the Applicant would be unable to apply for permanent residence from outside Canada, and determined that her decision to remain in Canada is a personal choice. The officer therefore found that an H&C exemption was not warranted. [21] The Applicant applied for judicial review of the March 19, 2021 Decision. The matter was settled and reconsidered by another officer. C. Decision Under Review [22] In the October 12, 2021 Decision, the Officer began by noting that H&C relief under subsection 25(1) of IRPA requires consideration of whether relief is justified by the Applicant’s circumstances, taking into account the best interests of a child directly affected. The Officer also noted that the Applicant bears the onus to provide sufficient evidence to substantiate H&C grounds, that officers are not required to elicit information or satisfy that grounds exist, and that evidence of hardship upon removal is not itself sufficient to warrant H&C relief. [23] The Officer identified three factors as the basis for the application: potential hardship upon return to Japan due to her experiences with domestic violence at the hands of her father, personal ties to Canada, and her establishment in Canada. [24] With respect to hardship, the Officer outlined the Applicant’s personal history, particularly her experiences with domestic violence in Japan, and considered the Applicant’s psychological assessment. The Officer highlighted that the assessment was based on a single interview rather than an ongoing relationship, it was done at the request of the Applicant’s counsel, and the Applicant did not seek mental health treatment during her 20 years in Canada. The Officer determined that the psychologist’s opinion that the Applicant’s mental health would deteriorate upon her turn to Japan is speculative, and found insufficient evidence to demonstrate that the Applicant could not access mental health treatment in Japan. [25] The Officer also noted that the assessment was performed prior to the death of the Applicant’s father in 2019, and it is therefore reasonable to assume that the threat of harm in Japan is now nonexistent. The Officer concluded that although it would be emotionally difficult for the Applicant to return to Japan, it is reasonable to expect that reintegration would be minimal. [26] On the second factor of personal ties, the Officer considered the letters of support provided as evidence of the Applicant’s personal ties in Canada. While the reasons state that these letters are afforded some positive weight, the Officer noted that the letters do not explain how the supporters would assist the Applicant in Canada or what hardship she would experience if forced to leave. The Officer found insufficient evidence to show a mutual dependence between the Applicant and her personal ties such that her departure would cause difficulties, or an inability to maintain contact with her personal ties through other means. [27] On the third factor of establishment in Canada, the Officer noted that the Applicant’s employment, volunteerism, and connections in Canada are afforded some positive weight, but a certain level of establishment is reasonably expected given that she has been traveling to Canada for more than 20 years. The Officer did not find that the Applicant’s establishment in Canada is sufficient to warrant H&C relief, stating that it is not unusual compared to others who have been here for a similar amount of time, nor does it indicate a level of integration into Canadian society to the extent that hardship upon her removal would be beyond her control. [28] The Officer noted that the Applicant’s desire to remain in Canada and her unwillingness to return to Japan are not determinative of an exemption on H&C grounds. The Officer ultimately found that the Applicant provided insufficient evidence to justify granting H&C relief. III. Issue and Standard of Review [29] This application for judicial review raises the sole issue of whether the Officer’s decision is reasonable. [30] The standard of review is not disputed. The parties agree that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25) (“Vavilov”). I agree. [31] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135). [32] For a decision to be unreasonable, an applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep” (Vavilov at para 100; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 36). IV. Analysis [33] The Applicant submits that the Officer erred in the following ways: by applying the incorrect statutory test for granting H&C relief pursuant to subsection 25(1) of IRPA, by improperly assessing the Applicant’s psychological report and other evidence, and by unfairly conducting an imbalanced assessment of the application as a whole. My analysis focuses on the assessment of the psychological report, which I find is improper and renders the decision as a whole unreasonable. [34] The Applicant submits that the Officer erred in their assessment of the psychological report by undermining the report in favour of irrelevant considerations, such as the assessment resulting from a singular visit and the assessment being performed at the request of Applicant’s counsel, instead of a medical professional. The Applicant submits that the Officer misunderstood the purpose of the assessment: to establish the Applicant’s mental health situation and corroborate her assertions that she is continually impacted by her past experiences, and not to provide ongoing therapeutic treatment. The Applicant further submits that the Officer erroneously found the psychologist’s opinion that the Applicant’s mental health would deteriorate upon her return to Japan to be speculative, because this assertion negates the psychologist’s expertise and the thoroughness of the assessment, which included the performance of a MMPI psychological test. [35] The Applicant also submits that the Officer’s overall assessment of the H&C application as a whole was unfair and imbalanced. The Officer asserted that the Applicant did not wish to return to Japan due to her fear of being further harmed there, but that no such harm exists because her father passed away in 2019. However, the Applicant never pleaded a fear of harm in Japan and, rather, based her application on her establishment in Canada, her negative memories associated with Japan, and her ability to effectively heal from her past in Canada. The Applicant also submits that the Officer’s finding regarding her “not wishing to return” undermines the core of her application, which is rooted in her experiences of abuse and her positive establishment in Canada. She submits that the Officer was unreasonably dismissive of the 23 letters of support proffered in support of her application and of her extensive establishment in Canada. [36] The Respondent maintains that the Officer engaged in a reasonable assessment of the evidence and the application as a whole. On the psychological report, the Respondent relies on this Court’s decision in Garcia Diaz v Canada (Citizenship and Immigration), 2021 FC 321 (“Garcia Diaz”) to submit that an officer is not required to agree with psychological reports submitted in an H&C application and is entitled to give them little weight, so long as there are clear reasons for doing so (at para 97). The Respondent contends that the Officer provided a reasonable explanation for undermining the Applicant’s psychological assessment. The Respondent further submits that the Officer did not misunderstand the purpose of the psychological assessment and, rather, reasonably found that the Applicant’s reintegration in Japan would be minimal because she does not face a threat, she owns property, potential support from her brother, and familiarity with the language and culture. [37] The Respondent maintains that the Officer carried out a reasonable and balanced assessment of the Applicant’s circumstances as a whole, based on a cumulative assessment of the evidence. The Respondent submits that the support letters proffered by the Applicant were brief, and the Officer reasonably found that they provided limited evidence that the Applicant’s removal would cause difficulties for those involved, or that she would be unable to maintain contact with her connections from Japan. The Respondent submits that the Applicant’s submissions on the Officer’s assessment of the application as a whole are merely a request to reweigh the evidence, which is not this Court’s role on review. [38] I note that the Officer’s reasons state that the Applicant’s traumatic experiences of abuse at the hands of her father were “given substantial weight in the assessment.” However, stating so is not the same as doing so. This statement does not mean that the decision, when reviewed as a whole, exhibits an attentiveness and consideration for the Applicant’s situation, assessing H&C factors holistically (Vavilov at para 15). In my view, the Officer’s assessment of the psychological report lacks consideration for the true extent of the impact of abuse on the Applicant and therefore contains gaps in reasoning. [39] The psychological report contains a detailed assessment of the Applicant’s mental health and the negative impact that her removal would have on her ability to effectively heal from her past. This evidence, extracted from a thorough psychological assessment of the Applicant for the purposes of corroborating her application, is central to the H&C factors that the Officer ought to have considered in assessing the Applicant’s circumstances. However, the Officer undermines this evidence by stating that the assessment was based on a singular visit rather than an ongoing therapeutic relationship, and that the assessment was performed at the request of Applicant’s counsel. [40] I do not find that these considerations are relevant to an assessment of the risk to the Applicant’s mental health upon her return to Japan. The fact that the assessment was based on a single visit, or that the assessment was completed upon counsel’s request, are not factors that undermine the thoroughness, credibility and value of the psychological assessment of the Applicant and the resulting diagnosis. Although entitled to grant a psychological report little weight, there must be clear and well-founded reasons for doing so (Garcia Diaz at para 97). In my view, the Officer failed to adequately consider a central aspect of the Applicant’s evidence, connected to the core of her H&C application, based on reasons that are not well founded, rendering the assessment of the Applicant’s evidence regarding her mental health unreasonable. [41] I also take issue with the Officer’s assertion that the psychologist’s opinion that the Applicant would face negative effects to her mental wellbeing if removed to Japan is speculative. First, I agree with the Applicant that this unfairly undermines the credibility of the report, based on an unsupported assertion. Second, I find this finding particularly problematic because it constitutes a failure to account for the foundation of the Applicant’s claim and reflects a narrow lens of the effects of domestic abuse on survivors, unfairly assuming that a risk to a survivor’s wellbeing is strictly connected to the risk of further physical harm. Neither the Applicant’s submissions nor the psychological report assert that the ongoing threat to the Applicant’s mental health is the physical embodiment of this abuse in Japan: her father. The Applicant does not claim that she fears returning to Japan because she will be physically abused there. In fact, the Applicant’s H&C application clearly states: While she may not have realized it before, Ms. Izumi is seeking safe haven, where she could finally make a firm break from her family, could health and could establish a home, free from the pain she endured growing up and free from the memory ‘triggers’ surrounding her in Japan. […] Ms. Izumi still needs to address the impact of the abuse on her as Dr. Devins recommends. She wants to do this, but she is still paying the balance of her medical bills and, aside from the cost, she really needs secure status to enter into a long-term program of therapy. She has managed to cope and make strides in overcoming some of effects of the abuse on her. She feels safe in Canada. The harsh memories of her past are in a distant country, Japan. Unfortunately, Japan is the only country where she has status to live permanently: she does not feel that she could cope with a return there. It holds only bitter memories for her. She has only her brother in Japan. He is married with children and she is not part of their lives and does not want to be. [Emphasis added] [42] The psychological report also states that Japan “holds bitter memories” for the Applicant, and that during her life in Canada, she is “finally finding it possible to trust a man,” she is “gainfully employed, finds meaning and satisfaction in her work, and has established an active, stimulating and satisfying life.” The report states that these “hard-won gains augur well for Ms. Izumi’s future mental health” but these gains “will be lost, however, should Ms. Izumi be refused permission to stay in Canada.” Contrary to the Officer’s finding, these opinions go beyond the existence of the threat of physical violence in Japan. Despite this, the Officer’s reasons appear to assume that no threat exists to a survivor of abuse such as the Applicant, as long as the physical threat of violence no longer exists. The Officer’s reasoning creates the unfair expectation that the lasting impacts of abuse are limited to the physical threat of continued violence, thereby ignoring the significant psychological footprint that abuse leaves behind. This is an unreasonable line of reasoning, and fails to adequately grapple with the consequences of removal on the Applicant (Vavilov at paras 102, 134). [43] On numerous occasions, the Officer’s reasons characterize the Applicant’s H&C application as being “a wish” to remain in Canada. In oral submissions, the Applicant’s counsel stated, and I agree, that the Officer mischaracterized and undermined the core of the Applicant’s claim by labeling it as a simple wish to live in Canada. In my view, the Applicant’s claim amounts to more than a mere wish. The evidence shows that she is facing lasting psychological impacts of abuse at the hands of her father, affecting her ability to return and reintegrate into a country that holds nothing but painful memories. She has established an extensive community in Canada, evidenced by the 23 letters of support on the record. The Officer’s consistent undermining of the core aspects of the Applicant’s claim and failure to grapple with the key evidence renders the decision as a whole unreasonable. V. Conclusion [44] The Officer’s decision is unreasonable because the Officer engaged in an improper consideration of the Applicant’s evidence, particularly relating to her psychological assessment. This application for judicial review is granted. JUDGMENT in IMM-7858-21 THIS COURT’S JUDGMENT is that: The application for judicial review is granted. The decision under review is set aside and the matter remitted back for redetermination by a different officer. There is no question to certify. “Shirzad A.” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7858-21 STYLE OF CAUSE: JUNKO IZUMI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: by videoconference DATE OF HEARING: October 19, 2022 JUDGMENT and reasons: AHMED J. DATED: January 3, 2023 APPEARANCES: Barbara Jackman For The Applicant Ian Hicks For The Respondent SOLICITORS OF RECORD: Jackman & Associates Barristers and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent

Response:
## Analysis of Court Decision: Izumi v. Canada (Citizenship and Immigration)

### Key Issues
ifferent officer. There is no question to certify. “Shirzad A.” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7858-21 STYLE OF CAUSE: JUNKO IZUMI v THE MINISTER OF CITIZENSH

### Standard of Review
ng H&C relief. III. Issue and Standard of Review [29] This application for judicial review raises the sole issue of whether the Officer’s decision is reasonable. [30] The standard

### Legal Analysis
The court's analysis focuses on: oherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its conse

### Precedential Value
This Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency.


Prompt:
How does this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada impact refugee claimants?

RAD File No. / No de dossier de la SAR : MC1-02834 MC1-02835 / MC 1-02836 / MC1-02837 MC1-02838 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision [Translation of the original verion] Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED][REDACTED] [REDACTED] [REDACTED] Personnes en cause Date of decision July 25, 2022 Date de la décision Panel Anne Revil Tribunal Counsel for the persons who are the subject of the appeal Virginie Beaubien Conseil des personnes en cause Designated representative [REDACTED] XXXX Représentant(e) désigné(e) Counsel for the Minister Amy Gelin Conseil du ministre REASONS FOR DECISION OVERVIEW [1] [REDACTED] XXXX, his wife, [REDACTED] XXXX, and their minor children, [REDACTED] XXXX, [REDACTED] XXXX and [REDACTED] XXXX, are citizens of Chile. They arrived in Canada on March 7, 2018, and claimed refugee protection, alleging that they fear the fish mafia in Chile. [2] The Refugee Protection Division (RPD) found their allegations credible and granted them the status of persons in need of protection, stating that [translation] "the panel is not satisfied on a balance of probabilities that the claimants would not face a serious possibility of persecution if they were to avail themselves of an internal flight alternative (IFA) in Chile. The panel considers that the claimants' situation in another part of the country is such that it would be unreasonable, in their particular case, to seek refuge there."1 [3] The Minister of Immigration, Refugees and Citizenship (hereinafter the Minister) appealed that decision to the Refugee Appeal Division (RAD). He argues that the RPD erred in analyzing state protection and should have considered an IFA in other cities, such as Arica, Iquique, Antofagasto, Concepción and Puerto Montt, and not only in the small town of XXXX. He argues that the appellants can obtain state protection. [4] The respondents submit that the RPD's decision is correct. In particular, they argue that the fish mafia is everywhere, that they tried to settle in XXXX but that their business failed. They claim that the RPD accepted evidence that their agents of harm were members of the mafia and point out that the mafia is present throughout Chile. [5] On November 3, 2021, the RAD sent a notice to the parties seeking their submissions on an IFA in the cities of Arica, Iquique, Antofagasta, Puerto Montt and Concepción. [6] The parties did not respond within the time limit provided, and the RAD rendered its decision allowing the appeal on December 3, 2021. [7] On January 7, 2022, the RAD allowed the application to reopen submitted by the respondents' new counsel. [8] Counsel filed additional submissions on March 10, 2022, with new documents and a sworn statement from Mr. XXXX XXXX. The respondents argue in these new submissions that the fishing mafia is tied to criminal groups involved in the narcotics trade, and that their assailants have the motivation to locate them, as Mr. XXXX XXXX filed a complaint for death threats and physical assault. They argue that the fact that the agents of harm were aware that a complaint had been filed proves that they had access to official information and that the fact that the police are not effective does not affect the motivation of the agents of harm. They point out that the agents of harm questioned Mr. XXXX XXXX brother and assaulted his father, and that the period from XXXX XXXX to their departure in XXXX 2018 is quite short, and that the agents of harm know his name and have information about his family and the places he frequented. They stress that the proposed IFAs are port cities and that it would be easy to find them there. With respect to the second prong of the IFA, they claim that the IFAs are unreasonable because they would not be able to find employment there and that they did not have much education and tried to settle in XXXX but failed because of financial problems. They claim they will not be able to find work and point out that many Chileans are homeless and living in camps. [9] On June 23, 2022, in response to a notice from the RAD, counsel for the respondents clarified that the submissions filed by previous counsel on December 9, 2021, between the first RAD decision and the reopening of the case, were not part of their record. She filed amended submissions to reflect the updated National Documentation Package (NDP) on Chile of April 29, 2022. These amended submissions point out that drugs are transported and trafficked via waterways and ports and that certain criminal organizations with ties to narcotics trafficking are located in the proposed IFA cities. DETERMINATION [10] The appeal is allowed. The RAD substitutes the RPD's determination with its own determination that the respondents are not Convention refugees or persons in need of protection. NEW EVIDENCE [11] The evidence presented by the respondents is admitted. [12] According to the Immigration and Refugee Protection Act,2 the RAD can only admit evidence that: i. arose after the RPD decision; ii. was not reasonably available at the time of the decision; or that iii. the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was made. [13] Thereafter, if the evidence meets one or more of these requirements, the RAD must decide whether the evidence is new, credible and relevant before admitting it.3 [14] In support of their additional submissions, the respondents filed seven articles and a sworn statement from Mr. XXXX XXXX. Newspaper articles [15] The respondents filed the following articles: A. "Pesca ilegal: La inédita querella de los pesqueros industriales [Illegal fishing: The unprecedented dispute between industrial fishermen]," Latercera, March 13, 2021. B. "La mitad de las municipalidades está siendo investigada por corrupción [Half of municipalities are under investigation for corruption]," Cooperativa Chile, January 19, 2022. C. "23 detenidos en Puerto Montt: desviaban camiones con salmones muertos para venderlos ahumados [23 arrests in Puerto Montt: trucks containing dead salmon hijacked to sell them smoked]," BiobioChile, June 2, 2021. D. "Homicidios por ajustes de cuentas aumentaron un 28% el año pasado [Revenge killings increased by 28% last year]," BiobioChile El Narco, June 22, 2021. E. "Los homicidios por ajustes de cuentas aumentaron 17 puntos en cinco años [Revenge killings have increased by 17 points in five years]," Cooperativa Chile, February 9, 2022. F. "Caso Corpesca: ¿Logrará la mafia pesquera y la casta política bloquear a la Fiscal Chong? [Corpesca case: Will the fishing mafia and the political caste succeed in blocking Prosecutor Chong?]," elDESCONCIERTO, September 2, 2016. G. "Las 7 familias que tendrían el mar chileno a perpetuidad [The 7 families that are allegedly the perpetual owners of the Chilean sea]," elmostrador, July 11, 2012. [16] The respondents contend that these documents are submitted in response to the RAD's notice requesting their submissions on the IFA and therefore could not reasonably have been expected under the usual circumstances to have been submitted. They also point out that these documents are documentary evidence and therefore credible and relevant because they are credible documents as they provide information on the proposed cities and on how the agents of harm operate. [17] After conducting its analysis, the RAD considers that these documents meet the criteria of subsection 110(4) because the respondents could not reasonably have been expected in the usual circumstances to have presented them, because the cities of Arica, Iquique, Antofagasto, Concepción, and Puerto Montt were not proposed as IFAs by the RPD, because these cities are coastal cities and because the respondents claim to fear the fishing mafia there. They also meet the newness, relevance and credibility criteria set out in the case law. These articles are therefore admitted as new evidence. Mr. XXXX XXXX affidavit [18] The respondents also filed an affidavit by Mr. XXXX XXXX, which contains new allegations concerning, among other things, the fish mafia. These allegations are also connected to the proposal of port cities as IFAs and therefore meet, for the reasons set out above, the criteria of subsection 110(4) and the newness, relevance and credibility criteria set out in the case law. ANALYSIS [19] The RAD's role is to decide whether the RPD's decision is correct or if, as the appellant claims, it erred. [20] To this end, the RAD listened to the recording of the RPD hearing, conducted its own analysis of the record and of all the evidence, and applied the correctness standard. I - Facts found credible by the Refugee Protection Division [21] The RPD set out the alleged facts as follows: [Translation] The claimant owned a XXXX and XXXX (XXXX) XXXX in Santiago. In the course of his commercial activities, the male claimant obtained supplies at the XXXX XXXX terminal. On XXXX XXXX, 2017, the male claimant purchased mollusks from one of his suppliers. Once at his business, the male claimant noticed that the mollusks were spoiled. The next day, he went to meet with his supplier to return the mollusks. However, the supplier refused to take the product back and threatened to kill the male claimant with a machete. Upon returning to his business, the male claimant told the female claimant (his wife) what had happened to him. Afterward, the male claimant used other suppliers to make his purchases until they refused to sell to him. On XXXX XXXX, 2017, the male claimant and his wife watched a television report according to which the mafia was present at the XXXX XXXX terminal. On XXXX XXXX, 2017, the male claimant and his wife decided to file a complaint with the police and the internal tax department against the supplier who had threatened him. On XXXX XXXX, 2017, the said supplier and two accomplices came to the male claimant's store and threatened him because he had filed a complaint. On XXXX XXXX, 2017, the claimant closed his business because the police could not protect him and because he was afraid for his children. The male claimant subsequently took steps to leave Chile with his family members. Fearing for their lives, the claimants left Chile on [REDACTED] 2018, for Canada, notably passing through XXXX and the XXXX XXXX. The next day they arrived in Canada, where they asked for protection on March 9, 2018. In XXXX 2018, the male claimant's father was attacked by members of the mafia, resulting in his hospitalization. On XXXX XXXX, 2018, while leaving the hospital, the male claimant's father saw his assailants again and decided to relocate.4 [22] While the RPD did not clearly state that it found all of these allegations to be credible, it is clear from its decision that it found them so. The parties do not make any submissions on this matter. After conducting its own analysis, the RAD finds these allegations credible. II-Legal test in paragraph 97(1)(b) of the Immigration and Refugee Protection Act [23] The RPD granted the appellants status as persons in need of protection under paragraph 97(1)(b) of the IRPA. It conducted its analysis under this section, asking the question: [translation] "Are the claimants subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment?"5 It assessed this legal test on a balance of probabilities as set out in paragraph 27. The RAD therefore concludes that it was through a slip of the pen that the RPD indicated in the conclusion to its IFA analysis that it was not satisfied [translation] "that the claimants are not at serious risk of persecution" instead of stating that they would be subjected to a risk within the meaning of paragraph 97(1)(b). [24] This slip of the pen does not detract from the meaning of the RPD's decision, which clearly grants the appellants protected person status on a balance of probabilities and not refugee status within the meaning of section 96 of the IRPA. [25] The RAD further notes that neither party identified this error. [26] For the reasons that follow, the RAD concludes that, while the RPD did not err in finding that the appellants would be subjected to a risk within the meaning of section 97 of the IRPA in the Santiago area, it did err in finding that they would be subjected to a risk in the proposed IFA cities. III-Internal flight alternative [27] The case law indicates6 that, if someone who is seeking refugee protection can seek refuge in their own country, and therefore has an IFA, there is no reason to conclude that they cannot remain in their country and that they ought to be granted refugee status. [28] Assessing an IFA is a two-pronged approach:7 1) The decision-maker must be satisfied on a balance of probabilities that there is no serious possibility of the asylum claimant being persecuted or tortured, of a risk to life or a risk of cruel and unusual treatment or punishment in the proposed IFAs; 2) The conditions in the proposed IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there. [29] Lastly, once the issue of an IFA is raised, the appellant must establish that there are no IFAs in the proposed cities. 1) First prong of the internal flight alternative [30] The RPD considered that the respondents are still being targeted by the Chilean mafia and that they would be subjected to a risk throughout Chile. [31] The RAD notes that it has been established in the case law that assessing the risk to which the respondents would be subjected in the proposed cities is based on the ability and motivation of the agents of harm to locate them.8 a) Capacity of the agents of harm [32] The appellant submits that, contrary to the RPD's conclusion, the distance between and size of the cities of Arica, Iquique, Antofagasta, Puerto Montt and Concepción reduce the likelihood of the agents of harm pursuing them. [33] The respondents argue that the proposed IFAs are coastal cities, that their attackers presumably have connections to the mafia and to narcotics trafficking groups. They point out that they had to have contacts among these authorities because they were informed of his complaint and know the family of the respondent, whose father was assaulted. They submit that the RPD accepted evidence that their agents of harm were members of the mafia and point out that the mafia is present throughout Chile. [34] The RAD notes that the RPD did not clarify what it meant by the Chilean mafia, which may overlap with different notions and affect the determination of the agent of harm's ability to locate the appellants. [35] The RAD has reviewed the articles submitted on appeal by the respondents in support of their allegations that the fish mafia is very powerful in Chile. [36] It is apparent from these articles, and particularly from documents A, F and G, that the fisheries sector is very important in Chile and that it is controlled by large groups that use fishing quotas to their advantage. Small-scale fishers are trying to oppose these large groups' stranglehold. As a result of some fishers operating illegally, in summer 2021, a union representing the main fishing companies in central and southern parts of the country had to file a complaint against those responsible for the illegal hake fishing according to the article in Exhibit A. This article equates illegal fishing operators with a mafia that has a [translation] "fairly complex structure allowing it to operate and evade controls." This article does not, however, state that these operators act violently, let alone against XXXX XXXX like Mr. XXXX XXXX. According to the articles in exhibits G and F, seven business clans referred to by Mr. XXXX XXXX as the seven major families, apparently have agreed to control the sector and bribe politicians and public servants to appropriate fishery resources. These articles do not mention these groups using violence against XXXX XXXX but do underscore the inequality of access to resources. Lastly, articles C, D and E indicate that there are criminal groups in Chile, including one that hijacked dead salmon meant to make meat and bone flour. There is an increase in the activity of groups relating to drug trafficking and the settling of scores between these groups. [37] Before the RPD, the respondents submitted, on page 290, a document titled "Dossier de reportage de Megavision Que cache le Terminal XXXX XXXX" in which the author states that he conducted an investigation at XXXX XXXX terminal after learning of complaints about thefts, threats and murders there. He notes that some are driven by profit and that hygiene rules were not followed, but does not mention violence. [38] The documentary evidence in the NDP, particularly that cited by the respondents, contains information on drug cartels and gangs, but nothing concerning a link between the fishing mafia and drug cartels.9 [39] Based on these documents, the fishing mafia in Chile is tied to the sharing of fishing resources and is not a criminal group that targets merchants, contrary to what Mr. XXXX XXXX stated at the hearing and what he describes in his affidavit. There is no information that criminal groups with ties to drug trafficking allegedly target fish mongers. [40] Therefore, assuming that there was a mafia group operating in the fish trade at the Santiago terminal and that Mr. XXXX XXXX's attackers were members of this mafia group, he failed to provide any evidence to support his claim that that this network is present elsewhere and in particular in the port cities proposed as IFAs. [41] In addition, the RAD notes that the attack sustained by the respondents, the interrogation undergone by Mr. XXXX XXXX's brother and the assault committed against his father all occurred in the Santiago area, where the respondents used to reside. While the respondents allege in their additional submissions that, contrary to what the Minister says, the assaults did not take place only in the Santiago area, because the assailants moved to XXXX, the RAD notes that this is not reflected in the respondents' statements at the hearing or in their written accounts. Indeed, they indicated that they left XXXX during the first week of XXXX 2018 and then travelled to Santiago, to the commune of XXXX XXXX.10 However, they saw the assailants when they left the hospital with their daughter on the evening of XXXX XXXX, 2018,11 after their return to the Santiago area. Their father was in the commune of XXXX XXXX, which is in the Santiago area, when he was attacked.12 Therefore, all the assaults or contacts with the attackers took place in the Santiago region without the need for the attackers to travel to other areas. [42] Lastly, if the agents of harm were informed, perhaps by corrupt officials as the respondents assume but have not established, that Mr. XXXX XXXX had filed a complaint against them, it is not established that they would have the ability to be informed of the respondents' presence in the IFAs. Indeed, it is not established that there is a network of organized criminals in the fisheries sector across the country attacking fish mongers. Although, as noted by the respondents, the proposed IFA cities are port cities, the RAD finds that the documentary evidence does not indicate that there is an organized criminal group in the various port cities that allegedly preys on fish mongers. [43] The whole of these factors undermines the credibility of the allegation that the agents of harm have the ability to locate the respondents in the IFAs. Motivation of the agents of harm [44] Mr. XXXX XXXX claims that these assailants are after him because he filed a complaint after being assaulted and that he informed the Ministry of Health that seafood products were being handled and stored improperly at the terminal. He points out that they had to have contacts among these authorities because they were informed of his complaint and know his family, his father having been assaulted. [45] The RAD notes that Mr. XXXX XXXX filed a complaint in 2017 and that, according to him, these complaints were not pursued. The RAD notes that there is no documentary evidence to support the fact that persons who have filed a complaint for assault or reported sanitary problems (known problems as indicated in the above-mentioned document and in Mr. XXXX XXXXs Basis of Claim Form [BOC Form], which states that he saw television reports on the subject) are allegedly targeted by members of a criminal group. There is no further information about the fact that these people are allegedly being sought out in other cities. [46] Even if we do believe the respondent when he claims that his assailants want to show he is no match for them, the fact that the complaint was not pursued lessens his assailants' need to demonstrate their power. [47] Moreover, the facts reported by the respondents occurred over three years ago. Mr. XXXX XXXX was assaulted on XXXX XXXX, 2017; individuals came to their XXXX XXXX on XXXX XXXX, 2017; these individuals were at the hospital parking lot on XXXX XXXX, 2018, and Mr. XXXX XXXX's father was assaulted on XXXX XXXX, 2018. These events therefore took place within a period of one year and over three years ago. Finally, as described above, they took place in the Santiago area. [48] Furthermore, Mr. XXXX XXXX no longer owns the XXXX XXXX. Mr. XXXX XXXX's arguments that he will not be able to find employment related to his profession will be examined under the second prong of the IFA. [49] Consequently, the RAD considers that these factors, taken together, undermine the allegation that the agents of harm are motivated to locate the respondents. [50] In addition, the fact that the police are victims of violence in Chile, as noted by the RPD, is not relevant to the nature of the alleged fear or to the respondents' profile. Conclusion on the first prong [51] In light of these factors concerning the ability and motivation of the agents of harm, the RAD concludes that, on a balance of probabilities, the respondents did not establish that they would be subjected to a risk within the meaning of subsection 97(1) of the IRPA in the proposed IFA cities. [52] The RPD erred in concluding otherwise. 2) Second prong of the internal flight alternative [53] The Minister argues that the principal respondent has held various types of employment and that the diversity of his work history will enable him to find work in the IFAs. [54] The respondents argue primarily that they will not be able to find employment in the IFAs because they have limited education. Without income, they would be forced to live in homeless camps. [55] According to the documentary evidence, Chile is a country of 19.8 million people with the highest human development index in Latin America. Its unemployment rate in 2019 was 7.2%. [56] The RAD notes that Mr. XXXX XXXX has a XXXX degree and Ms. XXXX XXXX has XXXX years of XXXX education. According to their BOC Form, they have owned a XXXX XXXX since 2008 in several locations. They also had a XXXX XXXX in XXXX, which they closed for financial reasons. However, the fact that their XXXX XXXX was not successful is not sufficient to establish that they could not find work in one of the IFAs. Mr. XXXX XXXX also worked in XXXX. They both know the language and culture of Chile. [57] While the respondents claim that Mr. XXXX XXXX's inability to find employment in his profession, namely the XXXX XXXX, renders the IFA unreasonable, the RAD notes that "it is only in exceptional circumstances that a mere lack of employment opportunities in the identified IFA would be sufficient to render the IFA unreasonable."13 However, the respondents did not explain why it would be unreasonable for Mr. XXXX XXXX to work another job. Moreover, the RAD notes that the XXXX XXXX's trade is not connected to an immutable aspect of the respondent's personality and that he can therefore be expected to pursue another occupation if he fears being in contact with the fishing community again. [58] The respondents also claim that he is hard-pressed to find employment in another field and therefore compelled to return to working in the XXXX XXXX, subjecting him to a risk. [59] The RAD disagrees with the respondents. The RAD finds that, given the appellants' profile and the situation in Chile as outlined above, they will be able to find employment in the IFAs in a field other than running a XXXX XXXX. [60] Consequently, it is not established that they would be forced to live in homeless camps in the cities proposed as IFAs. Furthermore, they were reminded that they went to live with their family before leaving Chile, particularly in one of the two homes of Ms. XXXX XXXX mother. [61] It is therefore not unreasonable for the respondents to live in Arica, Iquique, Antofagasta, Puerto Montt or Concepción. The RPD erred in concluding that the respondents could not avail themselves of an IFA. [62] Therefore, the RAD finds that there is no need to consider whether state protection would be available to the appellants in the greater Santiago area. CONCLUSION [63] Based on the RAD's analysis, the respondents did not establish that they would be subjected to a serious possibility of persecution or that they would be subjected, on a balance of probabilities, to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment if they returned to Chile to the cities of Arica, Iquique, Antofagasta, Puerto Montt and Concepción, which were identified as IFAs. [64] Accordingly, the RAD allows the appeal and substitutes the RPD's determination with its determination that [REDACTED] XXXX, [REDACTED] XXXX, [REDACTED] XXXX, [REDACTED] XXXX and [REDACTED] XXXX are not refugees or persons in need of protection under sections 96 and 97 of the IRPA. (Signed) Anne Revil Anne Revil July 25, 2022 IRB translation Original language: French Date Original language: French IRB 1 Refugee Protection Division (RPD) decision, para. 27. 2 Subs. 110(4) of the Immigration and Refugee Protection Act. 3 Canada (Citizenship and Immigration v. Singh), 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 4 RPD decision, paras. 3 to 8. 5 RPD decision, para. 17. 6 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 7 In particular, Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706, at paras. 9 and 10, [1991] FCJ No. 1256 (QL) FCA. 8 See in particular Gomez Dominguez v. Canada (Citizenship and Immigration), 2020 FC 1098 para. 31. 9 National Documentation Package on Chile, April 29, 2022, Tab 7.7: Gangs, cartels and organized criminal groups, including their areas of influence and alliances within and outside the country; presence of Colombian drug cartels in the country, including whether they may pose...Tab 7.3: By Land and Sea-Chile Dealing with Surge of Creepy Marijuana. InSight Crime. Henry Shuldiner. January 20, 2022. 10. RPD record, paragraph 18 of the written account faxed on January 6, 2021, pp. 12 or 284. 11 RPD record, written account, p. 16. 12 Wikipedia: [translation] "XXXX XXXX is a municipality in the Santiago area of Chile. It is located southeast of the metropolitan area." 13 Ambroise v. Canada (Citizenship and Immigration), 2021 FC 62. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC1-02834 MC 1-02835 / MC1-02836 / MC1-02837 MC1-02838 RAD.25.02 (August 20, 2021) Disponible en français 5 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 (August 20, 2021) Disponible en français

Response:
## Analysis of Refugee Decision: MC1-02834

### Key Issues
t out that the agents of harm questioned Mr. XXXX XXXX brother and assaulted his father, and that the period from XXXX XXXX to their departure in XXXX 2018 is quite short, and that

### Legal Analysis
The decision analyzes refugee protection criteria by examining: te. [17] After conducting its analysis, the RAD considers that these documents meet the criteria of subsection 110(4) because the respondents could not reasonably have been expected in the usual circumstances to have presented them, because the cities of Arica, Iquique, Antofagasto, Concepción, and Puerto Montt were not proposed

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.