Citation: 2022 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: February 4, 2022
Panel: Isis Marianne van Loon
Counsel for the Claimant(s): Farhad Khorsandgolchin
Country: Iran
RPD Number: VC1-06223
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: This is a decision in the Refugee Protection Division in the claim of XXXX XXXX who is a citizen of Iran who is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
DETERMINATION
[2] I find that you are a Convention refugee as you have established a well-founded fear of persecution on a Convention ground.
ANALYSIS
IDENTITY
[3] I find that your identity as a national of Iran is established by your testimony and the supporting documentation on file which includes a certified true copy of your passport in Exhibit 1.
ALLEGATIONS, CREDIBILITY, AND FACT FINDING
[4] Your allegations are set out in your Basis of Claim form and in your testimony. The following is a brief summary. You never agreed with the sexism and the lack of freedom under Islam in Iran. Your family sent you to Canada to study and you converted to Christianity here in Canada. You fear persecution on the basis of your conversion if you return.
[5] The presumption before me is that your testimony is true; however, this can be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions or undetailed testimony. The presumption does not apply to inferences or speculation for which there is no evidentiary basis. You have provided several credible documents to support your claim in Exhibit 4.1. There is a letter from lead pastor XXXX XXXX of the XXXX XXXX XXXX confirming your participation from XXXX 2020 and stating that as of XXXX XXXX, 2021, you were taking the 12-week baptism course and the pastor supplied his contact information and invited me to contact him if he can be of further assistance.
[5] In Exhibit 4.2, you were baptized on XXXX XXXX, 2022. There is a certificate to this effect. This was at the XXXX XXXX XXXX. A second letter from Pastor XXXX XXXX dated XXXX XXXX of 2022 confirms that you completed the baptism course and were baptized as well as your participation in church classes, activities, and Sunday worship services. Pastor XXXX XXXX states “I believe he is sincere in his new faith.”
[6] Your testimony was consistent and compelling. You were straightforward and forthcoming. You did not appear to embellish your description of events or actions, and I find you to be a credible witness and therefore believe what you have alleged in support of your claim. Your narrative and your testimony corresponds to the ample objective evidence about conditions in Iran pertaining to those who disavow Islam and convert to Christianity. Accordingly, I have no reason to doubt the central elements underpinning your claim for protection. I accepted that you have converted from Islam to Christianity and given the foregoing, I accept that you subjectively fear persecution in Iran.
NEXUS
[7] I find the persecution you face has a nexus to the Geneva Convention, that of religion, due to your disavowal of Islam and your conversion to Christianity and therefore, I have assessed your claim under Section 96. I also note that you make some statements showing you hold a political opinion in opposition to that of the Iranian regime; however, I have found the previously mentioned nexus to be sufficient to determine your claim.
WELL-FOUNDED FEAR
[8] In order to be considered a Convention refugee, you have to demonstrate a well-founded fear of persecution. This includes both a subjective fear which you have already established, and an objective basis for that fear and it must be forward looking.
[9] Based on your testimony, supporting, documents, and the Country Condition documents, I find you have a well-founded fear of persecution for the following reasons: In testimony, you described the difficulties you had growing up. You wanted to listen to music but it wasn’t allowed because it didn’t conform to the Islamic requirements, you wanted to get together in mixed groups; once again, that wasn’t allowed, you had to hide your own feelings, you weren’t allowed to express yourself, your opinions, or your beliefs. You came to Canada to go to school and you found a degree of freedom that you hadn’t experienced before; however, you ran into a time of difficulty. There were family members who died in Iran, you weren’t able to return, you were alone here unable to work at home, and you spent a very difficult time of your life questioning the meaning of life. Then you told me that you had some acquaintance already with Christianity and its teachings and what happened was you found another meaning for your life and you found this through Christianity. You found the new meaning and tranquility and your life changed and you found that you could be happier and as you believed in your heart, everything improved in your life, you found peace of mind, a job, discipline in your life, and you attribute this all to Jesus Christ.
[10] The country documentation is consistent with your allegations of the treatment of converts such as ourself in Iran. The law prohibits Muslim citizens from changing or renouncing their religious beliefs, Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostacy and apostacy from Islam is a crime that can be punished by death.
[11] Amnesty International stated the following in their June 2019 report entitled Iran Failing on all Fronts. Freedom of religion and beliefs continues to be systematically violated. The authorities impose, on people of all faiths as well as atheists, codes of conduct written in a strict interpretation of Shia Islam. The right to change or renounce religious beliefs continues to be violated with those converting from Islam at risk of arbitrary detention, torture, and the death penalty. The Australian Department of Foreign Affairs and Trade assesses that those accused of religiously based charges are also likely to face charges related to national security and they are unlikely to have adequate legal defence and they are likely to be convicted. So, I’m satisfied that regardless of whether a convert faces the death penalty or imprisonment, the conditions and treatment are such that both amount to persecution. Accordingly, I find your fear of persecution in Iran is well-founded.
STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE
[12] Except in situations where a state is in complete breakdown, states are presumed capable of protecting their citizens. To rebut this presumption, you have to establish on a balance of probabilities with clear and convincing evidence that your state’s protection is inadequate. In this case, the agents of persecution is the states. The persecution you would face if you return to Iran is at the hands of the authorities. Accordingly, I find there is no state protection available to you. The presumption of state protection is rebutted. The states are in control of its territories and therefore, I find there is a serious possibility of persecution throughout Iran for you and there is no viable Internal Flight Alternative where you could safely relocate given your circumstances.
CONCLUSION
[13] Based on the totality of the evidence, I have concluded that you are a Convention refugee. Accordingly, I am accepting your claim.
———- REASONS CONCLUDED ———
[1] This is the decision of the Refugee Protection Division in the claims of XXXX XXXX XXXX XXXX XXXX XXXX (the “principal claimant”) and her spouse, XXXX XXXX XXXX XXXX (the “associate claimant”). The Claimants are citizens of Honduras and are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
ALLEGATIONS
[2] The details of the Claimants’ allegations are fully set out in their Basis of Claim (BOC) forms and were supplemented by their oral testimony.[1] In summary, the Claimants fear they will be killed by the Mara 13, also known as the MS13, in Honduras because they stopped paying the ‘war tax” that the Mara 13 had extorted from them weekly and because the Claimants filed a report against the Mara 13 with the Honduran police.
DETERMINATION
[3] I find on a balance of probabilities that the Claimants would be subjected personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment, at the hands of the Mara 13 should they return to Honduras, for the following reasons.
ANALYSIS
Identity
[4] The Claimants’ identities as nationals of Honduras are established by the sworn statements in their BOC forms and the certified copies of their Honduran passports contained in evidence.[2]
Nexus
[5] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds enumerated under s.96 of IRPA: race, religion, nationality, membership in a particular social group or political opinion. Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons.[3]
[6] The Claimants submit that there is a nexus in their case to the Convention ground of political opinion and allege they face persecution due to their imputed political opinion.
[7] I find that there is nothing particular about this case which takes it outside the general principles as set out in Kang. I find the Claimants were victims of crime and their lives are at risk because they face retribution for ceasing to obey the Mara 13. As victims of crime who fear future criminality, I find that the Claimants have not established a nexus to one of the Convention grounds. I will therefore assess their claims under section 97(1) of IRPA.
Credibility
[8] The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[4] The presumption of truthfulness does not apply to inferences or speculation.
[9] In this case, I have found no reason to doubt the truthfulness of the Claimants. The principal claimant testified in a straightforward and convincing manner and was able to answer questions spontaneously and in detail about the extortion and the fear she felt on a daily basis. The Claimants provided corroborating evidence, found in Exhibit 5, to support their allegations including their business licence, photographs of the Claimants in their business, and a copy of the police report filed on XXXX XXXX, 2021.
[10] I find that the following facts have been established on a balance of probabilities:
a) The Claimants owned an operated a XXXX XXXX, or “XXXX”, in Honduras. The XXXX was a profitable business and had a large clientele.
b) In XXXX 2021, a masked man who identified himself as Mara 13 and who had XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX attended the XXXX and demanded the Claimants pay a “war tax” of 5000 lempiras on a weekly basis. The man stated that he knew everything about the Claimants’ family and their business and stated the Claimants would be killed if they did not pay the money.
c) Based on the man’s self identification as a member of the Mara 13 and because of his XXXX XXXX, I accept that the individual who extorted the Claimants was a member of the Mara 13 on a balance of probabilities.
d) Between XXXX 2021 and XXXX 2021, the amount the Claimants were extorted to pay rose from 5000 lempira weekly to 30,000 lempira weekly. The Claimants used profits from the business, their savings, and ultimately sold their cars and some personal belongings in order to make the payments.
e) The Claimants made one payment of 30,000 lempira on XXXX XXXX, 2021. The Claimants abandoned their home and business on XXXX XXXX, 2021, the day before the next payment of 30,000 lempira was due.
f) The Claimants made a police complaint against the Mara 13 on XXXX XXXX, 2021 at a police station in a different town. The Claimants spent the night of XXXX XXXX, 2021 at the airport awaiting their flight out of Honduras on XXXX XXXX, 2021.
Risk of Harm
[11] In order to establish they are persons in need of protection under section 97(1)(b), the Claimants must show they would be subjected personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment which is not faced generally by others in Honduras.
[12] When I consider the objective country evidence in relation to the Claimants’ profile as small business owners who have been previously extorted by the Mara 13, I find that the Claimants have established on a balance of probabilities that they face a risk to their life at the hands of the Mara 13 if they returned to Honduras.
[13] The National Documentation Package contains several articles and reports on the Mara 13. A report by Insight Crime, states that:
The Mara Salvatrucha (MS13) is one of the world’s largest and arguably most violent street gangs. After relatively humble beginnings in Los Angeles in the 1980s, it has spread to more than a half-dozen countries and become a central focus of law enforcement in two hemispheres. In spite of these efforts, the MS13 remains a persistent threat and shows signs of expanding its criminal portfolio. The MS13 has between 50,000 and 70,000 members who are concentrated in mostly urban areas in Central America or locations outside the region where there is a large Central American diaspora. In Honduras and Guatemala, the gang is still largely urban. Violence is at the heart of the MS13 and is what has made it a target of law enforcement in the United States, Central America and beyond. It is central to the MS13’s ethos, its modus operandi, and its evaluation and discipline of its own members. Violence also builds cohesion and comradery within the gang’s cliques. This use of violence has enhanced the MS13’s brand name, allowing it to expand in size and geographic reach, but it has undermined its ability to enter more sophisticated, money-making criminal economies.[5]
[14] The US Department of State Travel Advisory for Honduras states:
Hondurans continue to be affected by MS-13 (Mara Salvatrucha) and Calle 18 gang activity in cities such as Tegucigalpa, Choloma, La Ceiba, Tela, and San Pedro Sula. Most crime victims are members of rival gangs, small business owners who resist gang extortion, passengers on public transportation, or those involved in land disputes. The MS-13 and Calle 18 gangs are the most active and powerful gangs present in Honduras. Gangs are not reluctant to use violence, and specialize in murder-for-hire, carjacking, extortion, and other violent street crime…[6]
[15] In addition, the objective evidence indicates organized crime groups, including the Mara 13, use extortion as one of their primary sources of income.[7] One clique of the MS 13 murdered approximately 40 people between 2016 and 2019 “for not paying extortions, or on suspicion that [the victims] were informants for authorities”.[8]
[16] Furthermore,
Clique leaders keep a close eye and strict control over who gets targeted for extortion, how much money is collected and how often. New targets can be proposed and accepted during meetings. Gang leaders may also discuss issues with collection during those meetings, including whether or not to discipline a target for not paying, not paying on time or absconding.[9]
[17] One recent example of retribution against a pulperia owner occurred in October 2021. As reported in a Honduran newspaper, a pulperia owner refused to pay the extortion demands and was shot and killed on the street, presumably by gang members.[10]
[18] The objective evidence discussed above establishes that MS13 is a prominent and highly violent gang operating throughout Honduras, which uses the extortion of small business owners as a primary source of income.
[19] Given the Claimants have already been targeted by the Mara 13 and subsequently stopped making their regular extortion payments, I find, on a balance of probabilities, the Mara 13 are motivated to harm or kill the Claimants in retaliation for ceasing to pay them money, for reporting them to the police, and as a warning to others who refuse the Mara 13’s demands.
State Protection
[20] I find that there is no adequate state protection for the Claimants in Honduras.
[21] The principal claimant testified that when she and her husband filed the complaint with the police, the police told the Claimants that they would not be able to protect them as the police were understaffed and underfunded.
[22] The objective evidence supports the principal claimant’s testimony. As cited above, the Mara 13 has not been suppressed by state authorities; rather, the Mara 13 has been growing in both size and geographical reach. Objective evidence shows that police response to crime is unsatisfactory and undermined by lack of training and resources:
The government lacks resources to investigate and prosecute cases; police often lack vehicles/fuel to respond to calls for assistance. Police may take hours to arrive at the scene of a violent crime or may not respond at all.[11]
[23] Therefore, based on the evidence discussed above and the Claimant’s own experience in seeking protection from the police in Honduras, I find, on a balance of probabilities, that the Claimants will not be able to access adequate state protection in Honduras, and that the presumption of state protection has been rebutted.
Internal Flight Alternative (IFA)
[24] I find that there is no viable IFA for the Claimants in Honduras. The agent of harm is motivated to pursue the Claimants for refusing to comply with their demands and for reporting them to the police. As stated above, the Mara 13 uses violence to ensure compliance with their demands of extortion. The Mara 13 is a widespread criminal organization with significant resources and have the means and presence throughout the country to pursue the Claimants anywhere in Honduras. As already discussed, the objective evidence shows targets are disciplined by the Mara 13 for not making their payments and for absconding, both of which the Claimants have done. Therefore, I find that the Claimants will not be able to live safely anywhere in Honduras and they do not have a viable IFA.
CONCLUSION
[25] When I consider the Claimants’ personal circumstances, the objective country evidence, the lack of state protection and lack of viable IFA, I find that the Claimants have established on a balance of probabilities that they face a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the Mara 13 if they were to return to Honduras. I therefore find that the Claimants are persons in need of protection pursuant to section 97 of IRPA and accept their claim.
(signed) Alannah Hatch
January 18, 2022
[1] Exhibits 2.1 and 2.2.
[2] Exhibits 1 and 5.
[3] Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128at para. 10).
[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302.
[5] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.2 : MS13 in the Americas: How the World’s Most Notorious Gang Defies Logic, Resists Destruction. Insight Crime; Center for Latin American and Latino Studies. Steven Dudley, Héctor Silva Ávalos. 16 February 2018.
[6] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.14: OSAC Country Security Report, September 13, 2021.
[7] Exhibit 5, “Extortion Drives Displacement of Victims and Perpetrators Alike in Honduras”, Insight Crime, Aug. 2, 2018. See also, “The MS13’s Vital Fuel: Extortion”, Insight Crime, April 26, 2019.
[8] Exhibit 5, “Inside an MS13 Clique’s Campaign of Terror at the Honduras-El Salvador Border”, Insight Crime, June 5, 2020.
[9] Supra, Exhibit 3, Tab 7.2.
[10] Exhibit 5, “Pulperia owner killed due to extortion”, La Prensa¸ October 11, 2021.
[11] Supra, Exhibit 3, Tab 7.14.