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2020 RLLR 83

Citation: 2020 RLLR 83
Tribunal: Refugee Protection Division
Date of Decision: January 15, 2020
Panel: Alexandra Mann
Counsel for the Claimant(s): Bjorna Shkurti
Country: Nicaragua, Panama
RPD Number: VB9-02810
Associated RPD Number(s): VB9-02811, VB9-02812
ATIP Number: A-2021-00800
ATIP Pages: 000144-000156

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claims of [XXX] (the “principal claimant”), his spouse [XXX] (the “associate claimant”) as citizens of Nicaragua who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1] The principal claimant and associate claimant’s daughter, [XXX] (the “minor claimant”), a citizen of Panama, is also claiming protection.

[2]       The principal claimant was appointed the designated representative for the minor claimant.

ALLEGATIONS

[3]       The principal claimant’s employer, a Nicaraguan company, transferred him to their office in Panama for the period of [XXX] 2013 to [XXX] 2019. The associate claimant resided with her husband in Panama during this period, and the minor claimant was born in Panama in [XXX]. During their time in Panama, the adult claimants volunteered for their church to raise money for Nicaraguan political refugees. In early 2019, the claimants attended a demonstration in Panama against the Nicaraguan government. The claimants also have several family members who participated in anti-government demonstrations in Nicaragua.

[4]       In [XXX] 2019, the principal claimant’s employment contract in Panama came to an end and his employer transferred him back to their office in Nicaragua. On [XXX] 2019, the principal claimant was walking down the street when four armed and hooded men pulled him into a van. The men assaulted the principal claimant and threatened him saying that they knew he was supporting “Golpistas” (a pejorative term for people opposed to the Nicaraguan government) in Panama because they had “people” there. The men also made threats against the principal claimant’s wife and daughter, and then threw him out of the van saying that if they saw him again, they would kill him.

DETERMINATION

[5]       I find that the principal claimant and associate claimant are Convention refugees as they have a well-founded fear of persecution in Nicaragua on account of their political opinion.

[6]       I find that the minor claimant is not a Convention refugee or a person in need of protection as there is insufficient evidence for me to find that she would face persecution or a s. 97 risk in Panama.

ANALYSIS

Identity

[7]       I find that the adult claimants’ identities as Nicaraguan nationals are established on a balance of probabilities by their testimony and the copies of their Nicaraguan passports.[2]

[8]       I find that the minor claimant’s identity as a citizen of Panama is established by the testimony of her designated representative – the principal claimant – and the copy of her Panamanian passport.[3]

Article 1E of the Refugee Convention

[10]     The first question for me to consider is whether the adult claimants are excluded from refugee protection on account of having status, or access to status, in Panama that is substantially similar to the status of a Panamanian national. Pursuant to section 98 of the Act, a person referred to in section E of Article 1 of the Refugee Convention is neither a Convention refugee nor a person in need of protection. Article 1E provides that the Refugee Convention “shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

[11]     In Canada v. Zeng, the Federal Court of Appeal set out the following two-part test for assessing exclusion under Article 1E:

  1. Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is “yes”, the claimant is excluded.
  2. If the answer to the first question is “no”, did the claimant previously have status in the third country, substantially similar to that of its nationals, and lost it, or had access to such status and failed to acquire it? If “no”, the claimant is not excluded. If “yes”, the Panel must determine whether the claimant should be excluded by balancing the reason for the loss of status (whether it was voluntary or involuntary), whether the claimant could return to the country, the risk the claimant would face in their country of nationality, Canada’s international obligations and any other relevant factors.[4]

With respect to the first part of the Zeng test, in order to assess whether the claimant’s status in the third country is “substantially similar” to that of a national, the Panel must consider the following criteria:

  • the right to return to the country of residence;
  • the right to work freely without restrictions;
  • the right to study; and
  • full access to social services in the country of residence.[5]

[12]     In the present case, the claimants disclosed a copy of a document from the Panamanian authorities, dated [XXX] 2017, confirming that the claimants had been granted a “permanent resident permit.” The principal claimant testified that he and the associate claimant both held “permanent resident status,” but that this status did not confer the right to work. He testified that in order to work in Panama, he was required to obtain a work permit, which 1) was contingent on his employment, 2) only permitted him to work for one employer, and 3) had to be renewed on an annual basis. He further testified that the associate claimant did not have authorization to work in Panama as she did not have a qualified job offer.

[13]     The principal claimant’s testimony is consistent with a Response to Information Request (RIR), which appears at item 3.4 of the National Documentation Package (NDP) for Panama. According to this RIR, “every permanent resident who is eligible to work according to their category of permanent residence, must obtain a work permit to be employed, and this must be renewed every year.”[6] The RIR further states that it is only after 10 years of permanent residence and work permit renewals that a permanent resident can apply for an indefinite work permit.

[14]     Considering this evidence, it is clear that the adult claimants’ status in Panama did not grant them rights “substantially similar” Panamanian nationals. Most notably, the claimants’ status in Panama did not grant them the right to work freely without restrictions. The principal claimant was required to renew his work permit on an annual basis, and his authorization to work expired as soon as his employer ended his contract in Panama and reassigned him to their office in Nicaragua. The associate claimant was not permitted to work at all.

[15]     I therefore find that the claimants have never held status in Panama that is substantially similar to that of a national. Furthermore, as neither of the claimants had held permanent resident status and work permits in Panama for a period of 10 years, they were not eligible to apply for a status that would allow them to work freely without restrictions. Accordingly, I find that the adult claimants are not excluded under Article 1E.

Nexus to the Refugee Convention

[16]     The claimants allege that they will be targeted by the Nicaraguan government and/or pro- government actors – in Nicaragua and Panama – due to their opposition to the Nicaraguan government. I find that there is a nexus between the claimants’ allegations and the Convention ground of political opinion. I have therefore assessed these claims under s. 96 of the Act. I have also assessed whether the minor claimant faces a s. 97 risk in Panama.

Credibility

[17]     A refugee claimant’s testimony is presumed to be true unless there is reason to doubt its truthfulness. In this case, the claimants testified in a spontaneous and straightforward manner, and there were no material inconsistencies. They also disclosed documentary evidence which corroborates their allegations, including:

  • Photographs of the injuries the principal claimant sustained when he was kidnapped on [XXX] 2019;
  • Photographs of the claimants attending a demonstration in Panama against the Nicaraguan government;
  • Photographs and letters of support confirming the claimants’ family members participation in anti-government demonstrations in Nicaragua;
  • A letter of support from the principal claimant’s parents confirming that their house has been marked by pro-government forces as a sign that they have been labeled “Golpistas”, as well as a photograph of the mark on their house.

[18]     Additionally, as will be explained in more detail below, I find that the claimants’ allegations regarding the risks they face in Nicaragua are consistent with the independent country condition evidence before me.

[19]     Given the documentary evidence and the principal claimant’s testimony at the hearing, I find the principal claimant to be credible and I accept that he has been targeted by pro­ government forces in Nicaragua due to his opposition to the Nicaraguan government as well as his family members’ participation in anti-government demonstrations. I further accept that the pro-government agents who kidnapped and assaulted the principal claimant have threatened to harm the associate claimant and minor claimant as well.

Well-Founded Fear of Persecution and Risk of Harm

Well-Founded Fear of Persecution in Nicaragua

[20]     According to the country condition evidence, individuals opposed to the ruling government in Nicaragua face widespread persecution. The Freedom House report at item 2.3 of the NDP states that;

“(t)he election of Sandinista leader Daniel Ortega in 2006 began a period of democratic deterioration marked by the consolidation of all branches of government under his party’s control, the limitation of fundamental freedoms, and unchecked corruption in government. In 2018, state forces, with the aid of informally allied armed groups, responded to a mass antigovernment movement with violence and repression. The rule of law collapsed as the government moved to put down the movement, with rights monitors reporting the deaths of over 300 people, extrajudicial detentions, disappearances, and torture.”[7]

[21]     The United States (U.S.) Department of State report at item 2.1 of the NDP reports that the Nicaraguan government’s crackdown on political dissidents escalated in 2018 when the President “instituted a policy of “exile, jail, or death” for anyone perceived as opposition.” This report further states that in April 2018, the government “ordered police and parapolice forces to put down with violence peaceful protests that began over discontent with a government decision to reduce social security benefits.” Government and pro-government forces targeted protesters with live ammunition and snipers. Protesters responded by building barricades and confronting authorities with rocks and homemade mortars. This in turn led to further violent suppression from the government. There are even reports that the government has killed police officers for refusing to follow orders to violently suppress the protests.[8]

[22]     According to a 2018 Amnesty International report at item 2.5 of the NDP, the government’s strategy of lethal use of force against protesters was widespread and, in many cases, indiscriminate. After dismantling the protesters’ blockades, the government “increased its strategy of persecution and carried out mass arbitrary detentions of people identified as having participated in the protests at some point in the preceding months.” In doing so, the government has cast an incredibly wide net. Even carrying a Nicaraguan flag – which has become a symbol associated with the anti-government protests – is considered grounds for arrest. The Amnesty report states that “(s)ince June 2018, the government has adopted a strategy of indiscriminate repression with intent to kill not only in order to completely smash the protests, but also to punish those who participated in them.”[9]

[23]     As of November 2018, the “conflict left at least 325 persons dead, more than 2,000 injured, hundreds illegally detained and tortured, and more than 52,000 exiled in neighboring countries.” The protesters, and other government opponents, who have been arrested have faced “harsh and life-threatening prison conditions,” torture and even extrajudicial killings. There are some reports of the bodies of detainees being subsequently found in the morgue or strewn about city streets.[10]

[24]     There are also reports that the Nicaraguan authorities and pro-state actors have targeted the family members of those who participated in the anti-government protests. Observers list demonstrators, student leaders, human rights defenders and the family members of the victims among those who are targeted. According to the Inter-American Commission on Human Rights, the family members of those who have been targeted for their opposition to the government are among those at “serious risk.”[11]

[25]     As stated previously, I believe that the claimants, as well as several members of their family, have participated in demonstrations against the Nicaraguan government, and that the principal claimant was consequently kidnapped, assaulted and threatened by pro-government forces. I also believe that the attackers have threatened to kill the associate claimant and minor claimant as well. In light of the country condition evidence that government and pro-state forces in Nicaragua target anti-government protesters and their family members, I find that the claimants’ fear of persecution in Nicaragua on account of their political opinion is well-founded. I therefore accept that the claimants face a serious possibility of persecution if returned to Nicaragua.

[26]     For clarity, according to the information on file, the minor claimant holds citizenship in Panama and no other country. In the event that the minor claimant does hold citizenship, or a right to citizenship, in Nicaragua, I find that she has a well-founded fear of persecution in this country on account of her membership in the particular social group of the family. The objective evidence shows that the family members of anti-government protesters are at risk of being targeted by state or pro-state actors in Nicaragua. Moreover, the men who attacked the principal claimant specifically threatened to harm the minor claimant. I therefore find that all three claimants would face a serious possibility of persecution if returned to Nicaragua.

Well-Founded Fear of Persecution in Panama

[27]     Panama is not a country of reference for the adult claimants as they do not hold Panamanian citizenship. However, as the minor claimant is a citizen of Panama, I must consider the claimants’ allegations with respect to Panama in order to assess the minor claimant’s claim for protection. Based on the claimants’ evidence and the country condition evidence, there is insufficient evidence for me to find that the minor claimant has a well-founded fear of persecution or faces a s. 97 risk in Panama.

[28]     The claimants allege that they are at risk of being killed in Panama by the Nicaraguan authorities or supporters of the Nicaraguan government. The principal claimant believes that these actors have reach throughout Panama because the men who attacked him in Nicaragua on [XXX] 2019, told him that they were aware that he was living in Panama as “we have people there too.”[12]

[29]     When I asked whether the claimants had had any problems in Panama, the principal claimant described a conversation he had with a Nicaraguan priest, named [XXX], at a community event in Panama. [XXX] told the principal claimant that another priest, named [XXX], had been threatened with death in Nicaragua for raising awareness of the Nicaraguan government’s human rights abuses. [XXX] told the principal claimant that there was a plan to bring [XXX] to Panama through Honduras. A man overheard this and asked why [XXX] did not come to Panama directly. The principal claimant testified that [XXX] did not respond to this question, but from his expression it was apparent that he was very afraid. Based on this interaction, the principal claimant concluded that the man who overheard their conversation was an informer for the Nicaraguan government.

[30]     When I asked the principal claimant whether he was aware of any cases of people being targeted in Panama by the Nicaraguan authorities or supporters of the Nicaraguan government, he referred to a news article in disclosure regarding a homicide in eastern Panama. This article reports that subjects entered through the window of a residence and killed a Nicaraguan citizen, and that the motive was unknown since there were no indications of theft.[13] The principal claimant testified that a pro-Nicaraguan newspaper described the victim in this incident as a “Nicaraguan with a dark past.” Based on this report, the principal claimant concluded that the victim had been murdered by supporters of the Nicaraguan government due to his perceived opposition to the state.

[31]     I find that the principal claimants’ reasons for believing that the Nicaraguan authorities or pro-state actors have reach throughout Panama are speculative. I accept the principal claimant’s testimony that the men who attacked him in Nicaragua knew that he had been living in Panama. However, there is insufficient evidence for me to find that these agents of persecution would have the means or motivation to target the claimants in Panama. While the claimant’s testimony supports a finding that there are Nicaraguan agents monitoring Nicaraguans in Panama, there is insufficient evidence that they are doing anything more than monitoring. I was unable to find any reports in the NDP of Nicaraguan actors targeting people in Panama due to their opposition to the Nicaraguan government. As the article provided by the claimants does not specify the culprit’s motive, I cannot accept this article as evidence of a Nicaraguan citizen being targeted in Panama for political reasons. The comment in the Nicaraguan media that the victim was a “Nicaraguan with a dark past” is insufficient for me to make such a finding.

[32]     With respect to the principal claimant’s belief that the man who overheard his conversation with [XXX] was an informer for the Nicaraguan government, I find that there is insufficient evidence for me to accept this as a sufficiently established fact. The principal claimant alleges that the man asked [XXX] why [XXX] did not travel directly to Panama, which caused [XXX] to have a fearful expression on his face. This is not enough for me to find that the man was an informer for the Nicaraguan government, on a balance of probabilities.

[33]     For these reasons, I find that there is insufficient evidence that the Nicaraguan government and/or pro-government actors have the means or motivation to target anti-government protesters in Panama. I therefore find that the minor claimant does not have a well­ founded fear of persecution in Panama under s. 96.

Section 97 Risk in Panama

[34]     Similar to the reasons given with respect to s. 96, I find that there is insufficient evidence to support a finding that the minor claimant faces as. 97 risk in Panama. The Federal Court has held that the range of harms which may constitute persecution is wider, or of similar scope, than the range of harms that may constitute a s. 97 risk. In addition, the legal test for s. 96 — serious possibility — is lower than the legal test for s. 97 — balance of probabilities.[14] As the claimants were unable to establish that the minor claimant faces a serious possibility of persecution in Panama, I also find that they have not established — on the higher threshold of a balance of probabilities — that the minor claimant would be subjected personally to a risk of harm in Panama contemplated by s. 97, which is narrower than the scope of persecution.

State Protection

Nicaragua

[35]     For the claims against Nicaragua, as one of the agents of persecution is the Nicaraguan state, I find that the presumption of state protection has been rebutted.

Panama

[36]     With respect to the minor claimant’s claim against Panama, as I have found that she does not face a well-founded fear of persecution or as. 97 risk in Panama, it is not necessary to consider the availability of state protection in this country.

Internal Flight Alternative

Nicaragua

[37]     Regarding the viability of an internal flight alternative in Nicaragua, as the Federal government is one of the agents of persecution and is in effective control of its territory, I find that the claimants would face a serious possibility of persecution throughout Nicaragua. I therefore find that there is no viable internal flight alternative for the claimants within Nicaragua.

Panama

[38]     With respect to the minor claimant’s claim against Panama, as I have found that she does not face a well-founded fear of persecution or a s. 97 risk in Panama, it is not necessary to consider the availability of an internal flight alternative in this country.

CONCLUSION

[39]     For these reasons, I find that the principal claimant and associate adult claimants are Convention refugees and I accept their claims.

[40]     With respect to the minor claimant, as I find that she does not have a well-founded fear of persecution or face a s. 97 risk in Panama, her claim is therefore denied.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Exhibit 1.

[3] Exhibit 1.

[4] Canada v. Zeng, 2010 FCA 118, para. 28.

[5] Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.).

[6] Exhibit 3.2 National Documentation Package (NDP), Panama, September 30, 2019, Item 3.4 Response to Information Request (RIR) PAN106335.E.

[7] Exhibit 3.1, NDP, Nicaragua, October 31, 2019, Item 2.3.

[8] Exhibit 3.1, NDP, Item 2.1.

[9] Exhibit 3.1, NDP, Item 2.5.

[10] Exhibit 3.1, NDP, Item 2.1.

[11] Exhibit 3.1, NDP, Item 2.4.

[12] Exhibit 2.1.

[13] Exhibit 4, p. 182.

[14] Mudrak v. MCI, 2015 FC 188 at para. 43, affirmed 2016 FCA 178 (without answering certified questions).