2024 RLLR 88
Citation: 2024 RLLR 88
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2024
Panel: R. Benest
Counsel for the Claimant(s): Kirk W Olearnek
Country: Guatemala
RPD Number: VC3-10136
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A
DECISION
XXXX XXXX XXXX is a Convention refugee. Your claim is accepted.
Summary of your Claim
[1] XXXX XXXX XXXX claims to be a citizen of Guatemala.
[2] You have asked for Canada’s protection. You allege that you face continued discrimination amounting to persecution in Guatemala due to your race as Indigenous Maya, along with harm from a man in your town, AX.
[3] In 2017, you came to Canada on a work permit. While in Canada, you father became ill and had to take out a large loan from AX for pay for medical expenses. You returned to Guatemala briefly in 2018 and again in 2019, and you entered Canada again in 2019 on a work permit. AX started threatening to take your family’s land or to kill someone in your family if the debt was not paid back to him, which you and your family have not been able to pay fully.
[4] In XXXX 2022, you went from Ontario to British Colombia where your brother is due to mistreatment from your previous employer. In XXXX 2023, you found out about the possibility of making a refugee claim and started the process.
[5] You have faced continued racism and discrimination in Guatemala, including not being able to access work and educational opportunities and spaces, not being able to access or being refused health services, and facing continuous violence and mistreatment due to your race as Indigenous Maya.
Procedural Accommodations
[6] This hearing was held over two separate days. During the first hearing, in March 2024, we had only a Spanish interpreter. During the hearing, it was clear that full interpretation was not possible because Spanish is not your first language, and you do not speak it fluently. Because I did not feel that you were able to fully understand the proceeding, we paused to find an interpreter in Kaqchikel, an Indigenous Maya language, which is your first language. We had a second, or resumption, hearing on November 22, 2024. During that hearing, we had one interpreter from English to Spanish, and a second interpreter from Spanish to Kaqchikel. This allowed you to better express yourself in your first language, and I went over some of the same explanations and questions again to make sure you were able to fully understand.
Identity
You proved who you are and where you are from
[7] You have established your identity on a balance of probabilities. This means I believe it’s more likely than not that you are who you say you are. You established this through your testimony and documents, specifically, your genuine Guatemalan passport.
Convention Refugee
Your fear is linked to one of the grounds of persecution in the Refugee Convention
[8] There is a link between what you fear, and one of the five protected grounds listed in the Refugee Convention. Specifically, I find that your claim is connected to your race, as you are Indigenous Maya.
[9] You also allege that you fear retaliation and harm AX in Guatemala, due to the money you owe him which you are unable to pay back. From that perspective, your claim could be considered under section 97(1), as you fear a personalized risk of harm or to your life. It does not appear that you were targeted for this specifically due to your race.
[10] However, as a Board Member, I have an obligation to assess all the evidence before me. This includes your underlying profile, as well as the circumstances that directly led to you fleeing Guatemala and claiming asylum. This also includes the objective evidence on file as to the treatment of Indigenous Maya people in Guatemala. I find your allegations have the nexus to the Convention ground of race, and I have assessed this claim under section 96.
[11] Since your claim is linked to a protected ground, I must determine whether you face a serious possibility of persecution in Guatemala.
You proved important parts of your refugee claim
[12] I find that it is more likely than not that what you say happened to you in Guatemala did happen. Your testimony was straightforward and detailed. You testified about how you were only able to go to school for two months, because you needed to leave and start working to support your family, and how this happens often in your community, which is majority Indigenous Maya. You spoke about how you and your family have been unable to access health services when you need because you only speak Kaqchikel and not Spanish, and how this led to your wife not receiving help when she was in labour, and the loss of two of your children, and how even in these difficult moments health professionals scolded and belittled you for speaking Kaqchikel, your native language. You spoke about how police don’t help Indigenous people when they need help, and that once when you called the police it took them so long to arrive that you no longer needed their help. Except where noted below, there were no important omissions or inconsistencies in your testimony or contradictions between that testimony and the other evidence before me which have not been satisfactorily explained.
[13] There was a delay in making your claim, and you made your claim after having returned to Guatemala on two occasions. I asked you about this, and you explained that you weren’t sure of the processes, and when you found out about the possibility of making a refugee claim, you did file one. I find your explanation to be reasonable. I note that you face intersectional barriers to accessing information, as your first language is Kaqchikel, a Mayan language from Guatemala, and your Spanish and English are minimal. Further, you are not able to read or write in any language, which is another barrier for you to access information. I find that you have done your best to have legal status in Canada at all times, and that you made your refugee claim when you were able and understood that it was a possibility for you.
[14] Your claim is supported by your personal documents, including:
- Your marriage certificate
- A letter from your municipality that you are not able to read and write, and that you work in agriculture
- Documents relating to your work permits in Canada before you made a refugee claim
- An electricity bill for your family land in Guatemala from 2017
- Photos of the agriculture work your family does in Guatemala
- A Legal Aid document relating to your refugee claim
- Country conditions documents
[15] Based on your evidence before me, I find you have established a subjective fear of persecution, meaning that you genuinely fear persecution from the Guatemalan state and community based on your race as Indigenous Maya. I find that the credible evidence that goes to the core of your claim outweighs any contrasting evidence.
Your risk is supported by the country conditions evidence
[16] What happened to you in Guatemala and what you fear might happen to you if you return to Guatemala is supported by evidence about the country conditions:
[17] Items 2.1[1] and 13.3[2] from The National Documentation Package, or NDP, for Guatemala, indicate that the Indigenous Maya community in Guatemala is very precarious, suffering from high rates of poverty, disproportionate rates of malnutrition, illiteracy and discrimination and social exclusion. It is also noted that Indigenous peoples of Guatemala face the highest levels of social exclusion, including being underrepresented in national politics, lacking political support, medical care, access to education, and facing pervasive discrimination.
[18] The UN Special Rapporteur at Item 13.2[3] wrote that the situation of Maya and other Indigenous peoples “is characterized by serious structural problems, particularly the lack of protection for their rights to their lands, territories and resources and the racial discrimination that pervades all areas of life.” Item 7.15[4] states that it has been recognized that much of the Indigenous population faces deprivation of housing, employment, education, and healthcare. The objective evidence from the claimant[5] states that Indigenous communities are embedded in structural systems of poverty. For example, it will take an Indigenous family an average of 24 years to escape poverty, while a non-Indigenous family in the same circumstances can do so in 14 years. Further, for every dollar invested in a non-Indigenous community, the Guatemalan state only invests 45 cents in an Indigenous community.
[19] Item 13.2[6] states that Indigenous children continue to have very restricted access to education, and at least half of Indigenous Maya children were found to be not attending school. This item reports that conditions in the education system are “abysmal”, including overcrowded classrooms, poor-quality teaching, dilapidated facilities, and systemic racism and discrimination in the education system.
[20] There is also evidence that Indigenous peoples experience discrimination in healthcare. Item 2.1[7] states that a “lack of culturally sensitive and reproductive and maternal health-care service providers” was found to deter some Indigenous women from accessing care. Indigenous people were also under vaccinated from COVID-19. Item 13.1[8] states Only 15% of vaccinations went to Indigenous people, who constitute almost half of the population. Item 13.2[9] states that most of the Indigenous Maya population does not have access to primary healthcare, facing intersectional barriers to access care when needed. As you brought forward, this report confirms that being able to speak Spanish is a major determinant in accessing healthcare.
[21] Based on your experiences of systemic and intersectional discrimination and violence, along with the objective evidence, I therefore find you have established an objective basis for your fear.
State protection
You proved you will not receive protection from Guatemala
[22] The law presumes that most countries can protect their citizens. This is called the presumption of state protection. This presumption can be rebutted (challenged) with clear and convincing evidence. In your case, you have rebutted the presumption of state protection, and I find that adequate protection would not be available to you in Guatemala.
[23] You stated that often you would not go to the police because it takes them several hours to arrive to your community from the municipal center, and because they often do not provide help for people who do not speak Spanish.
[24] There is also evidence that similarly situated individuals do not receive adequate protection.
[25] Though equal rights are guaranteed in the Constitution of Guatemala and the state is making efforts, Items 2.5[10] and 13.2[11] of the NDP state that minorities face unequal treatment, and protection is often ineffective when it involves Indigenous Maya victims. Oppression of Indigenous Guatemalans is acknowledged as happening throughout the country.
[26] Item 13.2[12] further states that Indigenous Maya people continue to experience serious difficulties against a backdrop of extreme impunity in obtaining access to ordinary justice systems in a way that does not meet the relevant international standards. The Special Rapporteur received numerous testimonies about the discrimination and racism suffered by Indigenous people, particularly Indigenous women, when they apply to the courts at the local level. The United States Overseas Security Advisory Council, at Item 7.1[13], states that the police lack sufficient personnel and training to accomplish their mission. They suffer from a lack of supplies, such as vehicles, fuels, and ammunition, with little improvement from year-to-year. Police investigations often fail to result in arrest, much less conviction. Apart from impunity, a principal reason that the government is unable to respond to the needs of crime victims, or to prevent crime in the first place, is that the police force significantly lacks training and funding.
[27] Item 9.1[14] states that in terms of judicial response, the documentary evidence indicates that the systems of protections for defendants have been manipulated and perverted to protect powerful people from prosecution and to provide victims of abuse from obtaining justice.
[28] As a result, I find that you have rebutted the presumption of state protection in Guatemala and that adequate protection would not be available to you there.
Internal flight alternative
You face a serious risk of harm throughout Guatemala
[29] I have considered whether you have a viable internal flight alternative in Guatemala. This means I have considered whether you could live safely in another part of Guatemala. I find you face a serious possibility of persecution, or a risk to your life, or a risk of cruel and unusual treatment or punishment throughout Guatemala.
[30] As addressed above, the oppression and discrimination of Indigenous Guatemalans exists throughout the country. I find that there is a serious possibility of persecution for you throughout Guatemala and therefore there is no viable (possible) internal flight alternative.
Conclusion: your claim is accepted
[31] Based on all the evidence and my analysis, I determine that XXXX XXXX XXXX is a Convention refugee. I accept your claim.
——— REASONS CONCLUDED ———
[1] National Documentation Package, Guatemala, 31 May 2024, tab 2.1: Guatemala. Country Reports on Human Rights Practices for 2023.. United States. Department of State. 22 April 2024.
[2] National Documentation Package, Guatemala, 31 May 2024, tab 13.3: Covenant on Economic, Social, and Cultural Rights Alternative Report Submission: Violations of Indigenous Peoples’ Rights in Guatemala. Cultural Survival; Asociación Sobrevivencia Cultural. 1 September 2022.
[3] National Documentation Package, Guatemala, 31 May 2024, tab 13.2: Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Guatemala. United Nations. Human Rights Council. 10 August 2018. A/HRC/39/17/Add.3.
[4] National Documentation Package, Guatemala, 31 May 2024, tab 7.15: Cause or Consequence? Reframing violence and displacement in Guatemala. Internal Displacement Monitoring Centre. Ananda S. Millard; Gloria Lara-Florian. September 2018.
[5] Found at Exhibit 4.
[6] National Documentation Package, Guatemala, 31 May 2024, tab 13.2: Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Guatemala. United Nations. Human Rights Council. 10 August 2018. A/HRC/39/17/Add.3.
[7] National Documentation Package, Guatemala, 31 May 2024, tab 2.1: Guatemala. Country Reports on Human Rights Practices for 2023.. United States. Department of State. 22 April 2024.
[8] National Documentation Package, Guatemala, 31 May 2024, tab 13.1: Guatemala. The Indigenous World 2023.. International Work Group for Indigenous Affairs. Silvel Elías. April 2023.
[9] National Documentation Package, Guatemala, 31 May 2024, tab 13.2: Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Guatemala. United Nations. Human Rights Council. 10 August 2018. A/HRC/39/17/Add.3.
[10] National Documentation Package, Guatemala, 31 May 2024, tab 2.5: Guatemala. Freedom in the World 2023. Freedom House. 2023.
[11] National Documentation Package, Guatemala, 31 May 2024, tab 13.2: Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Guatemala. United Nations. Human Rights Council. 10 August 2018. A/HRC/39/17/Add.3.
[12] National Documentation Package, Guatemala, 31 May 2024, tab 13.2: Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Guatemala. United Nations. Human Rights Council. 10 August 2018. A/HRC/39/17/Add.3.
[13] National Documentation Package, Guatemala, 31 May 2024, tab 7.1: OSAC Country Security Report. Guatemala. United States. Overseas Security Advisory Council. 15 August 2022.
[14] National Documentation Package, Guatemala, 31 May 2024, tab 9.1: ILAC Rule of Law Assessment Report: Guatemala. International Legal Assistance Consortium. 29 May 2018.