2022 RLLR 116
Citation: 2022 RLLR 116
Tribunal: Refugee Protection Division
Date of Decision: January 19, 2022
Panel: Lindsay Trevelyan
Counsel for the Claimant(s): James Stephen Schmidt, Rosa Lopez Castillo
Country: Nicaragua
RPD Number: TB9-21097
Associated RPD Number(s): TC0-08702, TC0-08704, TC0-08705, TC0-08706, TC0-08707, TC0-08708, TC0-08709, TC0-08710
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
Introduction
[1] These are the reasons for the decision in the claims of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who claim to be citizens of Nicaragua, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.[1]
[2] The tribunal designated XXXX XXXX XXXX XXXX, as representative for his minor children included in the claim, specifically, XXXX XXXX XXXX XXXXand,XXXX XXXX XXXX XXXX XXXX. XXXX XXXX XXXX XXXX has been designated as representative for his minor children included in the claim, being XXXX XXXX XXXX XXXXand, XXXX XXXX XXXX XXXX.
Allegations
[3] The allegations are fully set out in the claimants’ Basis of Claim forms (BOC).[2] They allege they fear persecution, due to their political opinions, as they are opposed to President Daniel Ortega’s government which is controlled by his political party Frente Sandinista de Liberacion Nacional (“FSLN”).
[4] XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX are adult siblings. XXXX, the principal claimant (“PC”) left Nicaragua in XXXX 2019. Her brothers and their families left Nicaragua in XXXX of 2019. Their hearings were joined as required by Rule 55 of the RPD Rules[3], however they each have distinct allegations, which I will summarize below.
[5] The PC became an active member of Citizens for Freedom and Democracy Party in 2017. In light of the 2018 political crisis the PC attended protests in dissent of the Ortega regime, first on April 23, 2018, then on April 29, 2018. On May 9, 2018, at another march the PC was detained by police, assaulted in detention before finally being released with a threat to stop protesting. In the months that followed the PC provided financial support to those protesting at barricades, and provided food, medicine, and water to the protesters. After her detention she was threatened by phone, surveilled, and arbitrarily stopped by police at check points. On July 5, 2019, she discovered there was a warrant out for her arrest. She fled the country on XXXX XXXX XXXX 2019, with her young son, who is a Canadian citizen.
[6] XXXX XXXX XXXX XXXX (“AC1”), the PC’s brother, and his wife (“AC2”) joined the April 23, 2018, civic protest, and thereafter the April 29, 2018, and May 9, 2018, marches. AC1 and AC2 were unharmed at these events, despite violence and detentions by the government. At a march on May 30, 2018, AC1 and AC2 had to hide for 5 hours from gunfire and arrest fearing their death before finding safety. AC1 provided food, water, and clothing to the protesters at blockages. Both claimants attended express pickets and provided refuge to an independent journalist targeted by the government in December 2018, and later to his sister before she fled in XXXX 2019. They began noticing that they were being surveilled. On December 5, 2019, AC1 was accused of fraud, and summoned to the police station where they coerced and threatened him to support the regime before being released. Shortly after a warrant was issued for his arrest on terrorism charges, and he and his family fled to Canada on XXXX XXXX XXXX 2019.
[7] XXXX XXXX XXXX XXXX (“AC3”) and his family fled Nicaragua on XXXX XXXX XXXX 2019, with AC1 and his family. AC3 operated a XXXX XXXX XXXX His wife (“AC4”) was the XXXX XXXXof aXXXX XXXX XXXX XXXX XXXX XXXX XXXX. In 2018 AC3 used his XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Thereafter he was targeted by the Ministry of Transport and National Police who would stop his vehicle and threaten him. In the end of June 2018, he noticed that his family was being surveilled. He became a member of the Citizen for Freedom party and hosted small gatherings at his house to discuss politics. The XXXX run by AC4 and her family supported national work stoppages and strikes done in protest of the Ortega-Murillo regime and faced backlash and eventually closed. In XXXX 2019 their house was broken into, and in XXXX 2019 they were chased by motorcycles when on route to an express picket in Managua. The family fled the country after the AC3’s father received a warrant for his arrest on terrorism charges.
Decision
[8] I find that the adult claimants are Convention refugees, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should they return to Nicaragua, on account of their political opinion. I further find that the minor claimants would face a risk due to their membership in a particular social group as a family member of persons who hold a political opinion contrary to that of the Nicaraguan government. My reasons are as follows.
Identity
[9] I find that the claimants’ identity as nationals of Nicaragua are established by the documents, specifically their certified true copy of their Nicaraguan passports.[4]
Credibility
[10] The PC and her two brothers, AC1 and AC3 testified at the hearing. I found them all to be credible witnesses and I believe what they allege in support of their claim. All three testified in an impassioned and straightforward manner with respect to their political beliefs and their fear for themselves, their families, and their country. They were each able to provide details easily and elaborately of their experiences in Nicaragua, and their reasons for finally fleeing the country. There were no relevant inconsistencies in their testimony or contradictions between their testimony and the other evidence before me which was not satisfactorily explained.
[11] Specifically, the PC, AC1 and AC2 each provided a letter from Cuidadanos por La Libertad confirming their collaboration with the party,[5] copies of the arrest warrant and capture order provided to the claimants’ father.[6]
[12] I note that the warrant for arrest provided by AC1 was dated April 10, 2019;[7] however his narrative and testimony detailed that this warrant was issued on December 10, 2019. When asked for an explanation for this discrepancy, AC1 testified he was not able to comment as he was not sure why it would say that. He further testified that this document was dropped off at the same time as the capture order, dated December 10, 2019. Upon close examination of the original copy of the document, I note that the date of the warrant is very difficult to read. I accept, as submitted by counsel, the “April” translation might have been in error and find this explanation reasonable. I draw no negative inference.
[13] In support of her claim the PC also provided a letter from another member of Cuidadanos por La Libertad corroborating her support of the protesters, a letter from her father corroborating his knowledge and receipt of the warrant for her arrest, and a letter from her brother (AC1) corroborating that he and his wife housed her prior to her leaving the country. The PC also indicated that her son had a traumatic encounter with state forces while on his school bus and provided a psychological report to corroborate that event.[8]
[14] In support of his family’s claim, AC1 also provided a copy of his summons to police for an alleged fraud on December 5, 2019, a letter from the journalist he and his family had given refuge to prior to his flight from Nicaragua, a letter from AC2’s sister who housed the family prior to their departure, and pictures of AC1 and AC2 at various protests and with the exiled journalist and persons who were vocal opponents of the Ortega regime. AC1 had also indicated that the church where his family were active congregants was violently attacked, he provided a letter from the Father of the Parish corroborating that they were parishioners there.[9]
[15] In support of his family’s claim, AC3 also provided letters from friends who attended political meetings at the family home and corroborated their attendance at protests. He also provided documents corroborating the struggle at AC4’s XXXX, including the notification of an act of infringement from the Labor Inspector, a letter form AC4’s mother to the Ministry of Labor in response to this purported infringement, a notification card for AC4’s parents, and a circular to the XXXXfrom the XXXX XXXX XXXX XXXX XXXX XXXX in XXXX notifying the XXXXof a breach of their obligations. They also provided photographs at protests, of surveillance outside their home, of AC4 with critics of Ortega, of the XXXX, and Facebook posts pertaining to the XXXXclosure.[10]
[16] I find that the above-mentioned evidence establishes the claimants’ allegations and, given their credible testimony and after reviewing the documents, have no reason to doubt their accuracy. I find that the claimants have established on a balance of probabilities that they were opposed to the Ortega regime and were targeted by the state because of their participation in protest and their opposition to the government.
Subjective Fear
[17] While I have found that the claimants are credible with respect to their political opinion, each claimant had a timeline which raised questions about whether their behaviour substantiates subjective fear.
[18] The PC travelled to Miami in XXXX 2018. She did not claim asylum and returned to Nicaragua after her vacation. She left Nicaragua for Canada in XXXX 2019. AC1 and his family went to the United States in XXXX 2019, and to Costa Rica in XXXX 2019. They did not claim asylum at that time, fleeing Nicaragua in XXXX 2019. AC3 and his family went to the United States in XXXX 2019. They did not claim asylum, leaving Nicaragua in XXXX 2019.
[19] Given the claimants faced repression, surveillance and political pressure since the civil protests in 2018, these timelines raise issues about delay in departure, failure to claim in another country, and reavailment. While delay,[11] failure to claim in another country[12] and reavailment are not in itself determinative, they can cast doubt on a claimant’s subjective fear.
[20] All the claimants testified that they had travelled for tourism and had no intention of leaving Nicaragua, their lives, and their parents prior to their asylum claim in Canada. For each claimant the triggering event was the discovery of a warrant for their arrest for terrorism related charges, which immediately proceeded their final departure.
[21] I have considered the explanation pertaining to these subjective fear issues and find the explanations for returning or staying in Nicaragua to be reasonable. Accordingly, I find that the claimants have established a subjective fear of persecution based on their political opinion.
Objective basis
[22] The claimants’ fear is supported by the National Documentation Packages of April 23, 2021[13] and, November 30, 2021.[14]
[23] Civil protests in 2018 against the reform of the social security system expanded into general protest of the Ortega government. This political crisis resulted in the violent repression of protest by police and paramilitaries, and systematic violation of human rights in the country, including murder, imprisonment, forced disappearance and torture.[15] Since this time, the country has witnessed growing state violence, with the freedom of association and assembly increasingly restricted. These restrictions preclude any meaningful choice in elections.[16] The government has criminalized social protest to “dismantle citizen mobilization” and are prosecuting protesters for terrorism offences and alteration of the constitutional order.[17]
[24] The Country Report on Human Rights Practices for 2020 details that by 2019 the country was in a state of terror where basic civil rights were not guaranteed to those who were not Ortega partisans.[18] The 2020 report further details that within the nine months proceeding the report, 350 people were killed, 2000 injured and several hundred imprisoned or disappeared.[19] Further, item 2.5 of the NDP documented harassment and threats of family members of those perceived to be dissidents, pointing specifically to an incident where pro-government armed groups fired shots into a funeral of a 16 year old killed in an extrajudicial execution; an act the family perceived to be intimidation and punishment for the protests.[20]
[25] In the lead up to the recent election of November 7, 2021, the NDP documents a “cascade” of arrests of government critics and serious human rights violations as a broader strategy to suppress dissent, instill fear, and restrict political participation.[21] This included documentation of police arresting government critics at checkpoints, on the street, or in their homes, in most cases without showing a warrant.[22] This source also documented that those people who had previously been arrested during the brutal crackdown in 2018 suffered regular police harassment and surveillance since being released.[23]
[26] Counsel for the claimants provided additional country condition documents,[24] including a statement by Canadian Minister of Foreign Affairs Melanie Joly on the illegitimacy of the November 7, 2021, Nicaraguan elections, which robbed citizen of their right to vote in free and fair elections:
We reiterate our call on the regime of Daniel Ortega to fulfill its international obligations, release all political prisoners, end the repression of independent media, allow for the return of international human rights observers and establish a meaningful national dialogue.[25]
[27] Further articles document the recent events in the lead up to the November election, including the exile of Kitty Monterrey, the president of Cuidadanos por La Libertad, the arrest of former Foreign Minister Mauricio Diaz[26], and the disappearance of opposition leaders, arbitrary arrests, and a dismantling of opposition parties amid a crackdown on dissent by Daniel Ortega[27].
[28] The claimants’ narratives are all consistent with the documentary evidence. Given that there are no serious credibility issues with respect to their allegations, coupled with the documentary evidence set out above, I find that all of the claimants have established a prospective risk of persecution at the hands of the Nicaraguan government.
State protection
[29] Nicaragua has a centralized, authoritarian pollical system dominated by President Ortega and his wife, Vice President Murillo. The party exercises total control over executive, legislative, judicial, and electoral functions.[28] Given the evidence discussed above and given that the agent of persecution is the state, it would be objectively unreasonable for the claimants to seek protection of the state. I find that there is clear and convincing evidence that the state is unable or unwilling to provide the claimants with adequate protection.
Internal flight alternative
[30] Based on the evidence on file, I find that the claimants face a serious possibility of persecution throughout Nicaragua. These documents demonstrate that the control of the Sandinista-led Nicaraguan movement extends to the entire country and the claimants would not have any safe place in Nicaragua. Therefore, I find the claimants do not have a viable IFA as they would face a serious possibility of persecution throughout the country.
Conclusion
[31] In light of the preceding, I conclude that the adult claimants are Convention refugees, pursuant to section 96 of the IRPA because of their political opinions. I find that the minor claimants are Convention refugees pursuant to section 96 of the IRPA because they are family members of persons who hold a political opinion contrary to that of the Nicaraguan government. Accordingly, I accept their claims.
(signed) Lindsay E. Trevelyan
January 19. 2022
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
[2] Exhibits 2.1 – 2.9
[3] Refugee Protection Division Rules (SOR/2012-256)
[4] Exhibit 1.
[5] Exhibit 7, pp. 44; Exhibit 8, pp. 18 and 72.
[6] Exhibit 7, pp. 61-64, Exhibit 8, pp. 2-5, and pp. 52-55.
[7] Exhibit 8, pp. 2-3.
[8] Exhibit 7.
[9] Exhibit 8.
[10] Exhibit 8 and 15.
[11] Hue, Marcel Simon Chang Tak v. M.E.I. (F.C.A., no. A-196-87),
[12] Molano Fonnoll, German Guillermo v. M.C.I. (F.C., no. IMM-2626-11),
[13] Exhibit 3.
[14] Exhibit 16. This NDP was released in between the first and second sitting of this hearing, as such both are included in the Consolidated List of Documents. The more recent NDP was referred to in writing this decision.
[15] Exhibit 16, item 1.5, pp. 3 and 13.
[16] Ibid., Item 2.1.
[17] Ibid., Item 1.5, pp. 6 and 10
[18] Ibid., p. 13
[19] Ibid., p. 10
[20] Ibid., Item 2.5, p. 32.
[21] Ibid., Item 2.4, p. 7
[22] Ibid., p. 8.
[23] Ibid., p. 9
[24] Exhibits 9, 11-15.
[25] Exhibit 13.
[26] Exhibit 14, p. 2, “Kitty Monterrey Goes into Exile in Costa Rica”, August 11, 2021
[27] Ibid, p. 7, The New York Times, “Everyone is on the List’: Fear Grips Nicaragua as it Veers to Dictatorship”, September 5, 2021
[28] Exhibit 16, Item 2.1 p. 1.