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2019 RLLR 74

Citation: 2019 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Shaw
Counsel for the claimant(s): Kieran Verboven
Country: El Salvador
RPD Number: VB7-06918
ATIP Number: A-2020-01274
ATIP Pages: 000221-000226


[1]       PRESIDING MEMBER: So [XXX], [XXX] and [XXX] you claim to be citizens of El Salvador.

[2]       You claim refugee protection pursuant to Sections 96 and 97 [1] of   Immigration and Refugee Protection Act.

[3]       The Claimants’ Basis of Claim form allegations found in Exhibit 2. The Principal Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1981. The Principal Claimant’s wife, the Associate Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1984. The Principal Claimant and the Associate Claimant’s daughter is the minor Claimant. [XXX]. She’s born on [XXX], 2016.

[4]       The Claimants face a risk to their lives from MS13 because originally the Principal Claimant sent them to jail and then confronted them later. It began on [XXX], 2017 when the Principal Claimant was attacked by three gang members for no reason. In the city [XXX] in Antigua Cuscatlan C-U-S-C-A-T-L-A-N. The gang members had asked for money and then they said they were going to harm the Associate Claimant. And three of them began to attack the Principal Claimant.  He was lynched and thrown into the street and run over by— twice by a car, which fractured his [XXX] and his right [XXX]. He would have died but he was assisted by security employees who helped him before the police arrived. The gang members — two of the gang members were captured of the three. Due to the attack the Principal Claimant spent more than [XXX] months in hospital recuperating. The legal matter against the gang members was botched by the general prosecutor of the Republic and also by the judge. The judge admitted evidence that wasn’t valid. The criminal offences kept changing which would benefit the gang members. The judge granted them alternative measures to provision of detention, and so forth.

[5]       All this led to the gang members learning that where the Claimant’s family lived. They kept searching for the Claimant— for the Principal Claimant trying to intimidate him and trying to force him to withdraw his lawsuit and trying to locate him even while he was hospitalized. After he left the hospital, [XXX] 2007, relatives of the gang members came to the Principal Claimant’s home to tell him that if he didn’t drop the charges they would kill the Principal Claimant. Ultimately he had to reconcile with the gang members and they reached an agreement so that they would not kill him. The gang members also told him that he would need to leave the zone or else they would kill him.

[6]       The Claimant— Principal Claimant went to the general prosecutor to get protection measures but all he negotiated with the gang was to get them to give him $1500 each from each of them to facilitate his departure from the area and to prevent the killing of the Principal Claimant. The Associate Claimant was also at risk because she was a witness to the events.

[7]       The Claimants started moving and went back to their studies. Each of them studied [XXX]. The Principal Claimant became a [XXX] to the [XXX]’s office in San Salvador since mid 2012. The Principal Claimant would observe the gang members would come to [XXX]’ s office asking for him. This made him afraid to show the problems he had with the gang. The Principal Claimant decided to transfer to another department to avoid the risk. The Principal

[8]       Claimant was then appointed by the [XXX] to [XXX]. He had to negotiate with companies that are under the control of the gangs. The Principal Claimant gave up that work in XXXX 2015 for his safety. He there after decided to open his [XXX]— his own [XXX]. He was asked by a particular bank to carry out a [XXX] of five cases which had been stagnate for years and they haven’t been able to recover properties. The Principal Claimant was able to find owners of one property in the United States. He learned that the house that he was getting information about was filled with gang members and that’s why the MS had decided to keep that house. The family had fled El Salvador for the United States to avoid being killed.  The Principal Claimant was able to negotiate the return of the house to the bank. Where the Principal Claimant would be the [XXX] and be able to authorize this transaction.

[9]       The Principal Claimant learned in [XXX] 2016 that the men who were living inside the house were the men who had attacked him in 2007 in the initial transaction he had with the gang. This was in [XXX] 2017.  The gang insisted that the Principal Claimant negotiate this transaction. In [XXX] 2017, gang members approached the Principal Claimant and told him that his luck would be over unless he returned that house to the Maras (ph.), to the MS. They knew all the details about his parents and they threatened his life.

[10]     On [XXX] while the Principal Claimant was in a car with his wife and daughter, two persons followed them on a motorcycle. They intercepted the car and they took out a 9mm black weapon out of a bag. The Claimant hid in different hotels and left the country eventually getting to Canada to claim for refugee protection.

DETERMINATION

[11]     I find that the Claimants are persons in need of protection. In that the removal to El Salvador will subject them personally to a risk to their lives for the following reasons.

ANALYSIS

[12]     The Claimants’ identities as nationals of El Salvador are established by their testimony and the supporting documentation filed, namely their passports found in Exhibit 1. I have found the Claimants to be credible witnesses. They did not exaggerate about the amount of information they are aware of, about their situation since they came to Canada. Moreover the Claimants corroborated every allegation contained in their Basis of Claim forms with the 257 pages of supporting documentation found in Exhibit 4. These include their [XXX], the legal documents about the initial incident where in the Principal Claimant was run over by cars, they arrested the men and evidence that the Claimant was in the hospital, the detentions of the gang members  for five months, the conditional suspension procedure, the judicial errors in this case, evidence that the Claimant fled and was hiding in different houses and suffering from [XXX] and [XXX], witness to the events of 2007, evidence about the motorcycle  incident, that the Claimants  were constantly fleeing and  hiding  in  houses, medical evidence from the hospital, confirmation the Principal Claimant worked at the various locations and doing the work that he said he was doing, including that he recovered debts and so forth.

[13]     The Claimants’ testified today that the parents of the Principal Claimant are still in hiding and never go outside.  They are currently living in Santa Ana.  And even here in last May 2018 gang members were asking neighbours of the Claimant’s parents where the Claimants were. There’s evidence that the gangs are still searching for the Claimants to this day.

[14]     I have considered— and so I thus find that— I have considered whether the Claimants’ are Convention refugees. For the Claimants to be Convention refuges their fear of persecution must be by reason of one five grounds enumerated in the Convention refugee definition. I find that the Claimants’ fear of persecution is criminality and criminality is not a Convention ground. I therefore find that the Claimants’ are not Convention refugees.

[15]     The Claimants alleged that if they return to El Salvador they will be subjected to a risk to their lives by the MS13. I find that on a Balance of Probabilities that they have established this. The gang has been after the Claimant since 2007. First in connection to    the Claimant’s having the gang members incarcerated and for not dropping charges against them with regard to the aggravated assaulted perpetrated against the Principal Claimant. The gang members have been asking for the Claimant since mid-2012 again when he was working for [XXX]’s office.  In this job he made more enemies with the MS by evicting them from the market which had been a stronghold of the MS gang. So the MS gang only, by this point in 2012, had increased interest in the Claimant than in the originally in 2017. And after the Principal Claimant decided to leave this job out of fear of the gangs, his next position put him back in front of the gang again for trying to evict them from their headquarters, the house that got re-deeded back to the bank. The Principal Claimant was told in [XXX] 2017 that he was a dead man. They threatened the Claimants on [XXX] and took out a gun on their car which had all of the Claimants in it. Even when the Claimants were hiding they were found over and over again. I thus find that on a Balance of Probabilities all of the Claimants are at risk of harm pursuant to Section 97.

[16]     National Documentation Package item 7.2 and 7.3 of the National Documentation Package dated September 28— September 28, 2018 indicates that El Salvador has become the most violent in the world that is not in active warfare. There are approximately 18 murders a day. A 70 per cent increase compared to the previous year. Making El Salvador the highest murder rate for any country in the world in almost 20 years.

[17]     Item 7.2 of the National Documentation Package indicates that these numbers do not include the unreported murders or the hundreds or more disappearance cases. Gang related violence is the proximate and cause for many individuals and families fleeing El Salvador and becoming internally displaced as the Claimants had been. At present there are approximately 300,000 El Salvadorians who are internally displaced.  Gang violence in El Salvador is an immediate pre cursor to displacement. Entire families, like your own, are caught up in this violence without end. That’s Exhibit 3, National Documentation Package Item 7.2.

[18]     I find that the authorities in El Salvador have consistently failed to assist individuals and prevent displacement. In your case they assisted the displacement and made a deal to get you out of town. To create your own displacement instead of protecting you.  And the authorities have, moreover, have shown a difference to the plighted victims of violence and have thrown their back on their own citizens. The government officials botched the entire 2007 case against the gangs. And instead of following through on the manner, the Claimants were forced, again as I said, to leave town to protect their own lives.

[19]     The article Gang Based Violence and Internal Displacement indicates that the police, attorney general and prosecutors office discourage citizens from reporting crimes. They refuse to take denouncements or refuse to take responsibility for accepting reports of crime. Referring victims, witnesses and family members to other offices or agencies. The El Salvadorian state is unable to protect victims of crime, witnesses of crime or people who have participated in investigations or reported crime.

[20]     In many cases after having sought out the police or other government agencies, like yourselves, victims continue to suffer threats, attacks, violence and attempts on their lives. When the government representatives fail to response victims and survivors in these cases are forced to go hungry even sleep on the street, stay in deplorable conditions. In some cases, victims or family members are killed after seeking state protection. And media reports of the murder of the eye witnesses and those who testify at trial abound.

[21]     Item 7.13 and Item 2.3 Freedom of the World. There is a slowness in the state’s response to the seriousness case of harassment, abuse or violence that leaves victims in danger. Including cases involving persons like yourselves. There appears as well to be a failure on behalf of the judicial branch. The judicial system in El Salvador is weak and plagued with corruption. This is what the Claimants have alleged as well. With all of this there has been a creation of impunity from criminal prosecution as you experienced. Moreover there are frequent cases in the national news of violent deaths of those who report or witness crimes. These documents indicate that there are close ties between some government representatives and organized criminal structures. In a number of cases, links between local government and the police force and the gangs operating in communities are evident. This contributes to increased threats as stated and prevents the pursuit of justice and results in further victimization of citizens and victims. See Item 7.2, 7.13, 2.3, 2.1 of the National Documentation Package.

[22]     The United States Department of State report at Item 2.1 of the National Documentation Package indicates that corruption is widespread,  highlighting the weaknesses in the judiciary and security forces have contributed to a high level of impunity. According to Freedom House, Item 2.3 corruption continues to be a serious problem with few officials facing charges.

[23]     For all these reasons I find that the presumption of state protection has been rebutted. I have considered whether you face a risk throughout the country. I find that you would face— each of you face a risk to your lives on a Balance of Probabilities throughout El Salvador.

[24]     As noted in the National Documentation Package gang based violence article at Item 7.13 the MS reach extends across Central and North America. Estimates of active gang membership rang from 54,000 to 80,000 persons in El Salvador, Guatemala and Honduras. The gangs are now present in each of El Salvador’s 14 regional departments controlling entire neighbourhoods and imposing violence and fear on the population. Item 7.2 of the National Documentation Package.

[25]     The gangs are everywhere. If the Claimants were to move anywhere in El Salvador there is gang presence and their numbers are very high and they are always looking around for who is entering a neighbourhood. The Claimants cannot move anywhere in the country without their presence being learned by the gang. And for this information to be gather by the gangs. The gang presence is so large in El Salvador I find that the Claimants face a risk to their lives throughout El Salvador. There is no Internal Flight Alternative.

CONCLUSION

[26]     For the foregoing reasons I conclude that the Claimants are persons in need of protection and I therefore accept their claims.

[27]     And that’s the end of my decision and I will go off the record at this time.

—PROCEEDINGS CONCLUDED