2023 RLLR 257

Citation: 2023 RLLR 257
Tribunal: Refugee Protection Division
Date of Decision: December 14, 2023
Panel: Michal Fox
Counsel for the Claimant(s): Lisa J Couillard
Country: El Salvador
RPD Number: VC3-04321
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

DECISION 

MEMBER:

Introduction

[1]                   These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX XXXX, who claims to be a citizen of El Salvador and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.  In conducting the hearing and rendering these reasons, I have considered and applied the Chairperson’s Guideline 4 which offers guidance on the gender specific aspects of the claim.

Allegations

[2]                   The full allegations are set out in the claimant’s Basis of Claim form (BOC).  In summary, the claimant XXXX XXXX XXXX XXXX XXXX is a citizen of El Salvador.  The claimant fears members of the MS-13 gang who threatened her life, the life of her husband and child due to the claimant and her husband working for the nation’s XXXX XXXX.  On XXXX XXXX, 2022, at 3:15 in the morning, as the claimant left her home for work, she was intercepted by four members of the MS-13.  One approached the driver’s door, pointed a gun at the claimant and forced her to open the window.  The gang member told the claimant that he knew her husband was XXXX XXXX XXXX as well as herself.  The gang member threatened that if the claimant did not flee, the MS-13 would kill her and her family.  The claimant and her family immediately fled town and hid out in a different city.  Five days later, on XXXX XXXX, 2022, the claimant left El Salvador.  The claimant sought refugee protection at the Canadian border on April 11, 2023.

Determination

[3]                   I find that the claimant is a Convention Refugee as per Section 96 of Immigration and Refugee Protection Act, as the claimant has established a serious possibility of persecution as a member of a particular social group of women facing gender-related violence.

ANALYSIS

Identity

[4]                   I find that the identity of the claimant as a national of El Salvador has been established through her testimony and a copy of her passport found in Exhibit 1.

Credibility

[5]                   The claimant must present clear, cogent, and convincing evidence to credibly establish the facts of her claim on a balance of probabilities.  Sworn testimony is presumed to be true unless there are valid reasons to doubt its truthfulness.  This presumption does not apply to inferences; that is, conclusions drawn from facts or speculation for which there is no evidentiary basis.  The presumption can be rebutted by inconsistencies, omissions, incoherent, or vague testimony, limited knowledge of key elements of the case or reliance on false documents.  In this case, the claimant testified in a spontaneous manner and did not exaggerate.  The claimant’s testimony was consistent with her BOC allegations.  In addition, the claimant filed corroborative evidence in Exhibit 5.

[6]                   The claimant provided her XXXX XXXX XXXX and that of her husband’s, a letter confirming that she had withdrawn from the XXXX, and a declaration from the claimant’s husband and his parents confirming that the claimant’s husband and child had been hiding in their home since the day the claimant was threatened in XXXX of 2022.  I thus find all the claimant’s evidence to be credible, truthful, and reliable.  

[7]                   The claimant described that in the XXXX, both at the XXXX XXXX where she had studied for six years and through her XXXX XXXX XXXX, she was provided with in-depth knowledge of how the MS-13 operates.  She and her husband as both of them XXXX XXXX XXXX would receive XXXX XXXX about all aspects of how the gangs conduct themselves in El Salvador.  The claimant thus learned that once she and her husband had been threatened as XXXX XXXX XXXX XXXX, that the MS-13 would carry out these threats to kill them as soon as they were located.

[8]                   The claimant kept repeating that the MS-13 always follows through on their threats.  After a threat is given, it is communicated, she stated hierarchically to all parts of El Salvador and in time, the MS-13 will carry out its threats to kill the claimant, the claimant’s husband and she fears her child as well.  The claimant learned through XXXX XXXX that when the MS-13 targets XXXX XXXX XXXX XXXX, that the MS-13 especially fulfills its threats.  She stated that the XXXX fights the MS-13, so they are inherently their enemies, and this is why the claimant testified that when she was threatened, she not only fled that day but also quit her job immediately.  She realized that remaining XXXX XXXX XXXX would only increase her risk of death.  The claimant’s husband remained XXXX XXXX XXXX for some months, but he too quit out of fear that the MS-13 would kill him in his job.  The claimant’s spouse and child remained in hiding to this date.  

[9]                   The claimant’s actions are in accord with the corroborative evidence she filed in Exhibit 5, which talks about reframing displacement caused by the crime and violence in El Salvador.  It states at page 45 that those threatened directly and indirectly tend to flee within hours, leaving little or no time to prepare or plan for their displacement.

Well-Founded Fear of Persecution

[10]                   A well-founded fear has a subjective and objective aspect to it.  Both aspects of fear must be satisfied.

Subjective Fear

[11]                   I find that the claimant has even the subjective fear of harm.  They claimant, as soon as she was threatened, went into hiding.  She contacted her uncle in Canada.  He advised her to go to Canada and file for refugee protection where he could help her and support her.  Within a week, the claimant obtained a passport in El Salvador, fled the country, traveling through Central America and into the United States.  She did not file an asylum claim in the US due to the lack of support of anyone there and when she had acquired and saved sufficient funds, she fled the US for Canada and filed for refugee protection status at the Canadian border.  And as stated, the claimant’s life partner and child remain in hiding out of fear.

Objective Basis

[12]                   The objective evidence supports the claimant’s fears of returning to El Salvador.  Numerous reports through the National Documentation Package (NDP) for El Salvador in Exhibit 3 indicate high levels of violence perpetrated by organized criminal gangs in the country.  For example, the 2022, U.S. Department of State report found at item 2.1 states that organized criminal elements, including local and transnational gangs and narcotic traffickers, were significant perpetrators of violent crimes.  They committed killings and acts of extortion, kidnapping, human trafficking, intimidation, other threats of violence.  They directed these acts against security forces, judicial authorities, the business community, journalists, women and members of vulnerable populations.

[13]                   Item 7.18 identifies the MS-13 as one of the largest youth gangs in the Western Hemisphere.  Item 2.1 states that the MS-13 is one of two dominating criminal gangs in El Salvador and that these gangs often operate through connections at all levels of police, military, and politicians.  Human Rights Watch at item 2.4 states that gangs exercise territorial control over neighborhoods.  They forcibly recruit children and sexually abuse women, girls and the LGBT community.  Gangs kill, disappear and rape.  

[14]                   The report goes on to state that approximately 60,000 gang members operate in El Salvador.  They exert control over the territory and gather intelligence of residents and those passing through, particularly around public transit, schools and markets.

[15]                   Item 7.6 of the NDP attributes increasing homicide rates to a broken truce between the MS-13 and Mara 18 gangs and states that the gangs and other criminals often operate with impunity.  NDP Tab 7.8 also speaks of a significant increase of gang violence in 2022, with March 2022 being the deadliest month since the Civil War ended in 1992.  Item 2.1 again states that members traditionally identify themselves through gang related tattoos and style of dress and appearance, that a distinctive special vocabulary, hand signs and other body signs and even written codes are still apparently used by gangs, and the gangs also used tattoos as a form of punishment for a mistake made by that member or when loyalty is questioned.  For example, tattooing his face.  The claimant stated in her BOC that the gang members who stopped at her car were wearing Mara type clothing, including had their arms covered, to conceal their tattoos.

[16]                   The documents also indicate that those XXXX XXXX XXXX are especially targeted.  The claimant provided corroborative evidence of this, of gangs ambushing and killing XXXX XXXX XXXX XXXX, that is Exhibit 5 on page 27.  Further, in the article, Reframing Displacement Caused by Crime and Violence in El Salvador, it states that people consider gangs enemies are at constant risk.  This includes members of the security forces and other state authorities.  Military members are at risk of being killed, either because of specific problems with the gangs or simply because of their work.  More than 90% of soldiers and police officers are killed or die or leave rather than in the line of duty.  That is Exhibit 5 at page 24.  The documents also note that societal attitudes toward women are sexist, misogynist, and patriarchal, which falls for the conditions that lead to violence against women and by the gangs.

[17]                   NDP Tab 7.14, an OECD report at item 5.6 of the NDP indicates that El Salvador has the highest rate of gender-based killings of women, otherwise known as femicide in the world, and states that most of the killing occurs in connection with the ongoing gang conflict and not as intimate partner femicides.  See also Tab 5.4.  The claimant testified that she is well aware that she faces gender persecution and is terrifying.  She testified that the Mara 13 hate women.  They gang rape women before they kill them, but first they shoot them in the knees so they cannot run away.  This is her XXXX XXXX.  I thus find for all these reasons that the claimant has established a well-founded fear of persecution.  The objective evidence indicates and finds that as a female XXXX XXXX, the claimant faces a well-founded fear of harm from the MS-13.

State Protection

[18]                   With respect to state protection, the State is presumed capable of protecting its citizens.  A claimant must establish on a balance of probabilities through clear and convincing evidence that a country’s protection is inadequate.  I find that the claimant has rebutted this presumption.  The objective evidence indicates that in an RIR at Tab 7.6 that authorities in El Salvador are not effective in combating crime due to insufficient training, equipment shortages and a justice system that is weak and plagued with corruption.  El Salvador has a high level impunity for all crime.  This is also indicated in the UK Home Office report at Tab 7.21.  It states that many people choose not to report crimes for fear of reprisals and how the culture of impunity allows the gangs to flourish.  The claimant is well aware of the corruption and a lack of state protection in El Salvador.

[19]                   When I asked her why she did not notify the police, she stated that the police is a corrupt institution, and it has links with the gang.  She testified that she fears for her life.  If she had notified the police, the MS-13 would have then been notified and then for certain she would have been killed quickly by the MS-13.

Internal Flight Alternative

[20]                   I have also considered whether an internal flight alternative would be available to the claimant.  I find the claimant does not have an internal flight alternative as she would face a risk to her life anywhere in El Salvador.  The objective evidence from the World Fact Book Report at Tab 1.3 of the NDP indicates that El Salvador is beset by one of the world’s highest homicide rates and pervasive criminal gangs.  The country has more than 6 million people living in an area only the size of roughly 20,000 square kilometers.  Tab 7.3 the NDP indicates that relocation within El Salvador is very difficult, due in part to the close knit nature of communities in El Salvador.  And when a new arrival comes to communities, they are often questioned by the gangs.  Further, the report indicates that the gangs reach means that they are able to find individuals throughout the country.  The report states that it is very probable a person would be found if they attempted to relocate within the country.

[21]                   NDP Tab 7.21, similarly states that gangs monitor movement into areas they control and are reported to check people moving from one gang-controlled area to another, generally not allowing this.  Tab 7.14 of the NDP states that it is easy to identify a new person in the community because communities are closed off to outsiders and the person will be asked by the gang that operates in the place where she arrives from and to produce her identification.  This source states that aggressors can track women using various methods.  Methods such as asking family members or third parties, including colleagues from work or through the officials because of the widespread corruption.  Based on all the evidence before me, I find the claimant would face a risk to her life throughout El Salvador.  Given my finding which assesses the risk under the first prong of the internal flight alternative test, I find that it is unnecessary to consider the second prong.  Accordingly, the claimant does not have a viable internal flight alternative available to her.

CONCLUSION

[22]                   Based on the foregoing analysis, I conclude that the claimant is a Convention Refugee and I therefore accept her claim.  That is the end of my decision, and I will go off the record at this time.

——— REASONS CONCLUDED ———