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2019 RLLR 61

Citation: 2019 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2019
Panel: D. Marcovitch
Counsel for the claimant(s): Adela Crossley
Country: El Salvador  
RPD Number: TB8-09319
Associated RPD Number(s): TB8-09330, TB8-09365, TB8-09366
ATIP Number: A-2020-01274
ATIP Pages: 000151-000155


DECISION

[1]       MEMBER: I’ve considered your testimony as well as the other evidence in this case and I’m ready to render my decision orally.

[2]       [XXX], [XXX] who I will refer to as the principal claimant, [XXX], and [XXX] are citizens of El Salvador and are requesting protection under Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claims were joined pursuant to Rule 55 if the RPD rules, and [XXX] was appointed as the designated representative of the minor claimants pursuant to rule … or pursuant to Section 167(2) of the Immigration and Refugee Protection Act.

[4]       The specific details of this claim are set out in the Basis of Claim Form of [XXX].

[5]       In short, the claimants fear the MS-13 gang in El Salvador as a result of years of extortion and threats, particularly experienced by the adult male claimant. The MS-13, it started approaching him in 2015 seeking small extortion amounts on a regular basis. However, starting in [XXX] 2016 the principal claimant was approached for greater extortion amounts which the principal claimant paid on the [XXX] of every month, and he considered it part of his monthly costs of living.

[6]       However, in [XXX] 2017 the principal claimant was asked by an elder … elderly neighbour to use his position as the [XXX] of a [XXX] company called [XXX](ph) to provide samples of [XXX] that the neighbour was unable to obtain through the El Salvador social assistance program due to office closers during the holiday season.

[7]       Shortly after doing this favour the MS-13 approached the principal claimant and asked for sample [XXX] as well in addition to the extortion amounts. At this time the MS-13 also advised as to the details that they had regarding the principal claimant’s family, where he worked, when and where his kids went to school, etcetera.

[8]       Later on, the minor claimant [XXX] was stopped by gang members as he got off a school bus and was threatened regarding his father following through on extortion amounts and to try and stop avoiding them.

[9]       INTERPRETER: Would you kindly repeat that (inaudible) last part all about the school bus?

[10]     MEMBER: To try and stop avoiding them.

[11]     INTERPRETER: Can you back to where he got on the school bus (inaudible)?

[12]     MEMBER: And was threatened regarding his father following through on extortion and to stop trying to avoid them.

[13]     The claimants also believe that the MS-13 members had moved into a rooming-house across from their home and were keeping an eye on them.

[14]     My determination is that I find the claimants persons in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act.

[15]     With regard to Section 96, I find that the claimants fear criminal entity and I therefore find that their fear of persecution is not based on one of the five Convention grounds. That being so, this case was assessed under Section 97 of the Immigration and Refugee Protection Act.

[16]     With regard to generalized risk, the documentary evidence that El Salvador is one of the most violence countries in the world with one of the highest homicide rates. In particular, gangs are responsible for about 60 percent of the country’s homicides, as noted in NDP Item 7.1(1).

[17]     El Salvador’s National Documentation Package further indicates that random organized violent crime is endemic throughout El Salvador.

[18]     Based on the documentary evidence contained in the NDP and counsel’s country package I find, on a balance of probabilities, that the risk of violence at the hands of gangs in El Salvador is a generalized risk faced by the general population in El Salvador, and that extortion threats are common. However, I find that the claimant in this particular case face an individualized risk.

[19]     I find that even though some of the extortion faced by the claimants in 2015 or 2016 may have been generalized in nature, the more recent threats they experienced in 2017 and 2018 was personalized in nature. I find, on a balance of probabilities, that the claimants face a greater risk to their lives than the risk faced by the generalized population in El Salvador, such that they are subject to the generalized risk exception found in sub-paragraph 97(1)(b)(ii) of the Act.

[20]     With regard to identity, I find, on a balance of probabilities, that the claimants have established their identities by way of certified true copies of their El Salvadorian passports as seized by the Canadian Border Security Agency.

[21]     With regard to credibility, I find that the principal claimant was a credible witness. I find that he was consistent and did not embellish his testimony when there were opportunities for him to have done so. I find that I believe what he said and presented at his hearing.

[22]     I accept the principal claimant’s evidence that before they went to the United States in [XXX] 2017, he was scared of the gangs but did not consider the threats at that time to be significant, as he was paying the extortion amounts and viewed it as a monthly expense.

[23]     Further, the gangs appear to have accepted that monthly amount and had not threatened further at that point.

[24]     I therefore find that the claimants have not experienced such serious threats of a personal nature, that they should have sought protection in the United States…

[25]     INTERPRETER: That they should have?

[26]     MEMBER: That they should have sought protection in the United States. And that I find they did not re-avail themselves of El Salvador’s protection when they returned.

[27]     With regard to State protection, there are numerous documents in the Board’s disclosure packages that describe the ineffectiveness of El Salvador’s police and judiciary. Based among other things, on gang infiltration and corruption.

[28]     The claimants in this case did not approach the police at any point about the threats. While I find this problematic, I’m also of the opinion that even if they had stayed to try to get the benefit of State protection that the protection offered would not have been adequate given the objective country documentation on the issue, and the imminent threats faced by the claimants.

[29]     I therefore find, on a balance of probabilities, that the claimants have rebutted their presumption of State protection available to them in El Salvador and I find, on a balance of probabilities, that State protection would not be available to these particular claimants in the future if they were to return to El Salvador.

[30]     With regard to internal flight alternative, the documentary evidence is clear that gang activity is prevalent throughout El Salvador and that MS-13 has connections throughout the country and that they communicate with each other when new people move into their neighbourhoods.

[31]     That being so and given my determination regarding State protection, I find, on a balance of probabilities, that there’s no viable internal flight alternative available to these particular claimants anywhere in El Salvador.

[32]     To conclude I find, on a balance of probabilities, that the claimants are persons in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act as they would be personally subjected to a risk to their lives or a risk of cruel and unusual treatment should they return to El Salvador today.

[33]     I therefore accept their claims. Good luck.

[34]     COUNSEL: Thank you, Mr. Member.

[35]     MEMBER: And we’re off the record.

———- REASONS CONCLUDED ———-