Categories
All Countries Haiti

2020 RLLR 51

Citation: 2020 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Milan Milenkovic
Country: Haiti
RPD Number: VB9-06803
ATIP Number: A-2021-00655
ATIP Pages: 000139-000148


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX] (the claimant). The claimant claims to be a citizen of Haiti and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

DETERMINATION

[2]       Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[3]       Its reasons are as follows:

ALLEGATIONS

[4]       The claimant’s complete allegations are set out in the Basis of Claim Form (BOC)2 and need not be repeated here in detail.

[5]       To summarize briefly, the claimant was targeted by organized crime after refusing to give up his XXXX to the members of this organized crime group. The claimant was employed by [XXX] in Haiti. He was employed as a [XXX] (in Port­au-Prince), a dangerous area overrun by bandits. He testified that his work involved [XXX]

[6]       On [XXX] 2019, while working, the claimant was approached by a stranger. The man asked him to give him his [XXX]. The claimant refused, explaining the procedure involved in handing over an [XXX]. The stranger became furious and threatened him. Strangers started asking the security guards at work about the claimant.

[7]       On [XXX] 2019, while at the [XXX], the claimant was called out by an individual who took an interest in his [XXX]. This person knew when the claimant’s work shift ended, and the name of the person assigned to the following shift. Out of fear, the claimant remained at the [XXX] for several hours after his shift ended, until he felt it was less risky to leave the [XXX].

[8]       After this incident, the claimant took precautions in his means of transportation to work. Eventually, the situation became too stressful and the claimant quit his job on [XXX] 2019. He did so as he thought that quitting the job would put an end to his troubles.

[9]       On [XXX] 2019, while exiting [XXX], two persons gestured for him to stop his car. These persons shot in the direction of the car. The claimant sought state protection from the police in [XXX] on [XXX] 2019, to no avail. He does not know if the police investigated his complaint. The claimant moved to be away from his wife and daughter. He did this to keep them safe. Despite his move, on [XXX] 2019 a car chased him at high speed on the [XXX] highway. The car went out of its way to reach him. The claimant left Haiti on [XXX] 2019 on a plane ticket paid for by his sister. He landed in [XXX] USA, and made his way to Canada. His claim was referred at the Port of Entry on Aug 29, 2019.

[10]     The claimant fears being killed by the bandits who tried to kill him on [XXX] 2019 and [XXX] 2019.

[11]     The claimant also alleges risk to his life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm

[12]     The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in his country of nationality.

ANALYSIS:

[13]     The main issue is internal flight alternative (“IFA”).

Identity

[14]     The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file, along with other documents. The panel is satisfied of the claimant’s identity.

Nexus

[15]     For the claimant to be a Convention refugee, the fear of persecution must be “by reason of’ one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

[16]     There are numerous Federal Court cases which have held that victims of crime, corruption[1], or vendettas[2] generally fail to establish a link between their fear of persecution and one of the five grounds in the definition of Convention refugee.

[17]     The panel finds that the harm feared by the claimant is not by reason of one of the five grounds enumerated in the Convention refugee definition. The panel finds that the allegations concern criminal acts perpetrated against the claimant for reasons not related to a nexus. The panel shall therefore analyse the claim under section 97(1).

Credibility

[18]     When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts3 there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility the panel is entitled to rely on rationality and common sense4. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.

[19]     The claimant’s allegations do not run contrary to generally known facts. The claimant was interviewed by CBSA at the border5. The claimant’s statements during the interview are consistent with his BOC allegations. In fact, they provide detail which adds to the credibility of the allegations. This adds to the credibility of the claimant as a witness. The claimant’s testimony at the hearing was consistent with his allegations. The testimony was spontaneous and direct. He has documented his allegations. The claimant is credible.

S. 97 ANALYSIS

[20]     Section 97 is based on an objective assessment of risk, and the evidence must establish a specific, individualized risk for a claimant rather than generalized human rights violations in a country. Being a victim of crime does not make someone automatically qualify under section 97. There must be evidence establishing, on the balance of probabilities, that the claimant would be subjected personally to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment. In addition, to succeed under s. 97(1)(b), the claimant must also establish that the risk they face is not faced generally by others in or from the country.

[21]     The panel finds that the claimant would be subjected personally to a risk to life, or risk of cruel and unusual treatment or punishment in Haiti because of criminals’ interest in getting back at him since his refusal to give them his [XXX] in [XXX] 2019. The panel further finds that the claimant’s risk is not faced generally by others in or from Haiti.

[22]     The claimant does not name the criminals who have targeted him. But these criminals’ continued threats against him would, the panel finds, reasonably point to one same group of criminals who are targeting him. On a balance of probabilities, the panel accepts that the threats were by the same group of criminals targeting the claimant. This is because the claimant was specifically targeted by people who knew his identity, his schedule and his whereabouts. These criminals tracked and targeted him by threatening and attacking him, trying to shoot at him and run him off the road. This targeting carried over during various months and in various locations. There is no evidence that the claimant had any other problems with criminals in Haiti. People in Haiti are susceptible to crime and violence, but the claimant in this case the evidence establishes that the claimant was individually and specifically targeted by the same group of criminals.

[23]     Moreover, the events described go well beyond the general situation of gang crime or organised crime that is prevalent in Haiti. Even after the claimant quit his job as an [XXX] at the [XXX] in [XXX] 2019, he continued to be targeted, notably outside of [XXX], while on the road to [XXX] This was after he moved from his home in [XXX] 2019. This is relevant as he no longer had access to the [XXX] which was the starting point for the criminals’ interest in him in [XXX] 2019. The risk shifted to the claimant independently of whether his employment makes him of interest to the criminals. The risk has also now shifted independently of whether the claimant works in the area where he was first threatened. It is a risk that is more significant and more direct than that faced by others in Haiti.

[24]     In sum, the panel finds on a balance of probabilities that the claimant would be subjected personally to a risk to life or risk of cruel and unusual treatment or punishment in Haiti that is not faced generally by others in or from Haiti.

[25]     The risk he faces started as a risk resulting from his employment as a [XXX] for [XXX] at the [XXX]. That risk has now evolved to a specific, individualized risk that is unrelated to his employment as the risk is about him alone. That risk is not faced generally by large segments of the population in Haiti.

Similarly situated persons and objective basis

[26]     The objective country conditions evidence contains various documents on the harm faced by someone who has an unsettled score with gangs or other criminal elements6. The Board’s Response to Information Request (RIR) on Acts of Revenge committed by gangs or by other organized crime entities7 provides relevant information on the objective basis of this claim. Several sources in this RIR state that gangs and armed groups commit acts of revenge in Haiti. These acts of revenge are described as one of the methods of control used by gang leaders. Independently of their connection to gangs, criminals reportedly also commit acts of revenge. The perpetrators of acts of revenge may be guns for hire who work for others. Given the number of sources cited in this RIR, the panel gives this information significant weight. The information it provides is in conformity with other documents on file on the country conditions in Haiti.

[27]     Having established the prevalence of acts of revenge committed in Haiti by a variety of actors, the panel turns to the question of the motive for these acts of revenge. They are described, still in this same RIR, as occurring for a variety of reasons. Among these reasons is wanting to punish or dissuade those who oppose armed groups, and to settle scores. According to one source, those who report criminals to the police are particularly targeted. The panel notes that the claimant did file a police report. Acts of revenge are generally described as including murder and other grievous acts.

[28]     As for the ability to track down victims, the principal means described in the same RIR is word of mouth. The RIR refers to the effectiveness of different ways of locating people in Haiti. In addition, it reports that anyone outside a one’s small area will be quickly recognised. People in Haiti are reportedly “generally well aware of their neighbours’ business”8. The ability to track someone reportedly persists for years when a gang remains interested in that person. Some victims of acts of revenge have reported that the police helped assailants locate them.

[29]     Based on all of the stated evidence, the panel finds that there is an objective basis to the claim.

State Protection:

[30]     Claimants must show, on a balance of probabilities, that adequate State Protection is not available. The issue before the panel was whether it was objectively unreasonable for the claimant(s) to have sought state protection. While states are presumed to be capable of protecting their nationals, it was open to the claimant(s), according to the law, to rebut the presumption of protection with “clear and convincing” evidence.

[31]     The claimant sought state protection to no avail. This is consistent with the available country conditions evidence.

[32]     Several items of the NDP9 mention the inability of the police in Haiti to protect the people of Haiti. Corruption and impunity for crimes are described as being widespread in Haiti. One document references the French OFPRA report, which explains that: “The capabilities of the Haitian National Police are not sufficient, both in terms of the number of police officers who are mainly present in the capital, and in terms of the equipment available to the police, noting in particular the lack of fuel, cars and computers. » In the same vein, it states that “Haiti’s National Police has a limited response capacity and lacks the resources to complete investigations, which compromises the deterrent effect on criminals who act without fear of the police authorities.” The document also indicates that the police are notable to protect themselves from criminals in Haiti. When the panel considers the entirety of the evidence on country conditions in Haiti, it finds that the claimant could not avail himself of adequate state protection in Haiti. The presumption of state protection has been rebutted.

Internal Flight Alternative (IFA):

[33]     The IFAs of [XXX] were suggested at the hearing. Having heard the evidence the panel finds that the analysis of IFA fails on the first prong. The panel finds that the people who have targeted the claimant could locate the claimant in an IFA. As seen in the section on risk under section 97(1), the agents of harm have demonstrated their motivation to pursue the claimant outside of [XXX]. They have also demonstrated their motivation to pursue him over time. As seen in the section above on the objective basis, the social and neighbourhood networks in Haiti would make it possible for the agents of harm to locate him in the proposed IFAs. The panel finds that, on a balance of probabilities, the claimant faces a risk to life or risk of cruel and unusual treatment or punishment in the proposed IFA – s. 97(1) and throughout Haiti, which is a geographically small country.

CONCLUSION

[34]     Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[35]     The claimant is credible.

[36]     The panel concludes that the claimant is a person in need of protection and the panel therefore accepts their claim.

(signed)           Miryam Molgat

October 19, 2020

[1] Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v ME.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; and Vargas, Maria CecillaGiraldo v. ME.I. (F.C.T.D., no T-1301-92), Wetston, Mary 25, 1994.
[2] Marincas, Dan v ME.I. (F.C.T.D., no IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); and Xheko, Aida Siri v. M.C.I. (F.C.T.D., no IMM-4281-97), Gibson, August 28, 1998.
3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
4 Shahamati, Hasan v. Minister of Employment and Immigration (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994
5 Solemn Declaration by C. Cabot, Exhibit 1
6 National Documentation Package, Haiti, 1 September 2020, sections 2 and 7.
7 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
8 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
9 National Documentation Package, Haiti, 1 September 2020, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.National Documentation Package, Haiti, 1 September 2020, tab 7.8: Major criminal groups, including their areas of operation, their structure and their activities; state response (2016-May 2019). Immigration and Refugee Board of Canada. 6 June 2019. HTI106293.FE.

Categories
All Countries Colombia

2020 RLLR 46

Citation: 2020 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: August 11, 2020
Panel: Zhanna Perhan
Counsel for the Claimant(s): Justo Vega Castro
Country: Colombia
RPD Number: TB9-19730
ATIP Number: A-2021-00655
ATIP Pages: 000111-000114


DECISION

[1]       MEMBER: This is the decision for [XXX], TB9-19730. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally.

[2]       You claim to be a citizen of Colombia and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a person in need of protection as your return to Colombia would subject you personally to a risk to your life for the following reasons.

[4]       The allegations of your claim can be found in your Basis of Claim form in Exhibit 2. In short, you allege the risk to your life at the hands of the criminal organization, in particular, Clan del Golfo or Golf Clan who have threatened to kill you unless you agree to collaborate with their security plan in Colombia through regular extortions.

[5]       Your personal identity as a citizen of Colombia has been established on a balance of probabilities by your testimony and the supporting documents in Exhibit 1, namely, copies of your passport and your national identity card.

[6]       With respect to the Nexus to the Convention, there is insufficient evidence that you were targeted for Convention grounds for race, religion, nationality, political opinion or membership in particular social group so the claim is being examined under Section 97.

[7]       In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you have alleged in your testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without embellishment. There were no major inconsistencies that went to the core of the claim that were not reasonably explained. You described how the threats from Clan del Golfo began in [XXX] 2019 when you were intercepted by a truck or a van and a motorcycle, threatened and demanded to pay extortions. You did not-, you were later in [XXX] 2019 supplied with instructions on when, where and how to bring the money and you did not comply with the demands, hoping for police protection. You relocated to Bogota to escape the criminals. When you retuned after almost two months, somebody broke into your home at the end of [XXX] 2019.

[8]       You left for Bogota again, lost hope for protection measures and because you had a tourist visa to Canada, you decided to leave Colombia as fast as you reasonably could and you flew to [XXX] 2019. Overall, your testimony was spontaneous including being able to provide details about your professional activities as a cattle farmer, an entrepreneur as well as the details of the threats and seeking protection from the authorities. You filed the denunciation, asked for protection. You turned to the army for additional protection, but you were only given recommendations and nothing else.

[9]       In particular, I noted substantial documentary evidence that you presented, particularly, in Exhibit 6 which corroborates your personal and professional identity as well as the details of the threats and attacks, paperwork and supporting letters confirming your professional activities as a cattle farmer, entrepreneur. Also supporting letters from family members who confirmed you were a victim of extortions and threats. Moreover, there are copies of denunciations made at Attorney General and copies of protection measures and crime reports, however, one of them, Exhibit 5 reports that you were first threatened by Golf Clan in 2013. When I asked you to explain why this information was omitted from your Basis of Claim form, you said, in 2013, it was a closed case. You didn’t lose any money [XXX]. In addition, the perpetrators back in 2013 were never identified as Clan del Golfo. The protection unit that took care of that case said that it was simply a paramilitary or a criminal group. That is why you did not mention it in your Basis of Claim form.

[10]     I find that explanation reasonable and it does not undermine your credibility. I find your testimony was consistent in content and chronology without the documents provided that were central to your claim and I find you are credible and I accept your allegations as identified in your written and oral testimony.

 [11]    I find that you would be subjected to a greater personalized risk compared to the general population in Colombia. Your professional activities as a [XXX] make you more affluent and thus easily targeted by the gangs for extortions. In addition, due to the nature of your professional activities, you’re well known in the community, hence, it made yourself open to public and easy to locate. I find on a balance of probabilities that you have established the personalized risk to your life that goes beyond the generalized risk in Colombia. Moreover, taking into account the past persecution at the hands of Clan del Golfo, I find you have established strong likelihood of harm in the future.

[12]     To just briefly comment on State protection and internal flight alternative. I find for two reasons that you have rebutted the presumptions of State protection and demonstrated there is no viable internal flight alternative. Firstly, you have provided credible evidence that you relocated, and you went into hiding in Bogota. You provided evidence that you approached the authorities for assistance and you applied for protective measures, but no adequate protection was provided. Due to the threats from Clan del Golfo that continued in spite of the complaints and recommendations from the police, you decided it was unsafe to remain in Colombia especially because no protection was forthcoming.

[13]     Secondly, I have reviewed the country condition evidence as reflected in National Documentation Package. Items 1.2 and 1.7 as well as the documents provided by the counsel on your behalf. Specifically, in Exhibit 5. The documents illustrate that while Colombia has made efforts to improve State protection, its ability to do so is severely limited due to a lack of presence and capacity in many areas of the country that have been recently vacated by FARC as well as significant issues of corruption and complicity by local offi-, officials. National Documentation Package, Item 7.2 reports that Clan del Golfo has succeeded in infiltrating divisions of the armed forces and the justice system. This narco-parla-, paramilitary group has infiltrated official institutions, forged alliances with public servants including armed forces, police, Attorney General and local governments officials so it would be the protection in my opinion would not be forthcoming in your particular circumstances. The preponderance of documentary evidence is clear and convincing in that.

[14]     In addition, I find you would be unable to safely relocate to any other parts of Colombia and that you fa-, face risk throughout that country at the hands of Golf Clan. Peace and Reconciliation Foundation reports in Item 7.2 in NDP and Exhibit 5 news articles provided by the counsel in particular, Colombia reports, news Latin America and Revista Semana ail confirm that Clan-, Golf Clan or Clan del Golfo also known as Urabenos or Clan Usuga or Autodefensas Gaitanistas de Colombia or AGC. They’re currently the largest criminal gang operating in Colombia. It had grown to include more than 8000 members, including informants. It has also become the largest and most powerful self American narco poster. Clan del Golfo has a presence in 279 municipalities in 27 departments, that’s NDP Item 7.2.

[15]     Clan del Golfo has made alliances with smaller groups and gangs throughout Colombia. They have a national reach and an ability to operate across the country. According to Human Rights Watch, there have been documented cases of persons being tracked down by the Cla-, Golf Clan after fleeing to other parts of the country and that’s in Item 7.15 on page 20. I find that Clan del Golfo has taken sustained efforts to locate you and having determined on a balance of probabilities that you are a credible witness, I am satisfied that this group has both the means and the motivation to locate you anywhere you go in Colombia. Therefore, on the evidence before me and based on your particular circumstances, I find that on a balance of probabilities you face risk to your life by the Clan del Golfo anywhere in Colombia and there is no viable internal flight alternative for you.

[16]     So, for all these reasons above, I find that you face risk to your life if you return to Colombia and accordingly I find you to be a persan in need of protection pursuant to Section 97(1)b of Immigration and Refugee Protection Act. Therefore, I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2020 RLLR 28

Citation: 2020 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: Jacqueline Gallant
Counsel for the Claimant(s): Fiona Begg
Country: Mexico
RPD Number: VB9-05754
Associated RPD Number(s): VB9-05768
ATIP Number: A-2021-00540
ATIP Pages: 000166-0000173


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision of the claim of [XXX] (the “Principal Claimant”) and his spouse [XXX] (the “Associate Claimant)”, who claim to be citizens of Mexico, and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       In rendering its reasons, the panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2

DETERMINATION

[3]       For the reasons that follow the panel finds that the claimants have satisfied the burden of establishing that, on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment upon return to their country.

ALLEGATIONS

[4]       The claimants fear they will be killed by members of the Cartel Jalisco Nueva Generacion (CJNG) if they return to Mexico.

ANALYSIS

Identity

[5]       The panel finds that the claimants’ identities as nationals of Mexico is established by their testimony and the documentary evidence filed including their Mexican passports.

Nexus

[6]       The panel finds that that there is no nexus between the claimants’ allegations and one of the five Refugee Convention grounds, and has therefore assessed these claims only under the provisions of s. 97(1) of the IRPA

Credibility

[7]       The panel finds the claimants to be credible witnesses. They testified in straightforward and forthcoming manner and there were no relevant inconsistencies in their testimony or contradictions between their testimony and the other evidence before the panel.

[8]       The panel accepts the following on a balance of probabilities:

The claimants opened a store in Guadalajara at the end of [XXX] of 2017 and members of the CJNG demanded the claimants pay them [XXX] Mexican pesos for the CJNG to provide protection to the store over the Christmas season. When the claimants did not pay this fee, [XXX] days later, the amount was increased to [XXX] Mexican pesos and the CJNG members threated the Associate Claimant telling her they knew about her daily activities and where the claimants lived.

On [XXX], 2017 three CJNG members came to the claimants’ store. Two of the men attacked the Principal Claimant and the other man stole merchandise from the store. The claimants went to the prosecutor’ s office to make a complaint but was told nothing could be done.

The claimants spent Christmas at the Principal Claimant’s family’s home in [XXX], Michoacan and when they returned home on [XXX], 2017, their home had been broken into but nothing had been stolen.

On [XXX] 2018 the members of the CJNG came to the claimants’ store, beat up the Associate Claimant and locked her in the bathroom while they robbed her store. The CJNG members told the Associate Claimant they now want [XXX] Mexican pesos and they would continue to steal merchandise until the claimants paid this amount. The CJNG members also told the Associate Claimant that if they ever made a complaint to the police again they would kill the claimants and their family. The CJNG members stole merchandise and the money from the cash register before they left.

The CJNG members continued to visit the claimants store throughout much of 2018. In [XXX] of 2018 the CJNG members came to the claimants’ store and threatened to kill the claimants and told them that this is no longer about the money but about the claimants having challenged the CJNG by not paying the money requested.

On [XXX], 2018 the Principal Claimant was dragged out of his car and badly beaten by members of the CJNG. The CJNG members told the Principal Claimant they were going to kill him and stole all of the Christmas presents that were in his car.

In [XXX] of 2019 members of the CJNG ransacked the claimants’ store and the claimants ultimately arranged to sell the business and merchandise that was left.

In [XXX] of 2019 the claimants visited the Principal Claimant’ s family in Michoacan and on [XXX], 2019 the Principal Claimant received text messages from members of the CJNG asking him if he thought this would end just because they went to Michocan. The Principal Claimant’s mother purchased the family plane tickets to travel to Canada on [XXX] 2019 to disappear for a while.

On [XXX], 2019 the Associate Claimant’s mother told them not to come back to Mexico as members of the CJNG had been to their place looking for them and told her they would be paying attention and were not finished. Members of the CJNG visited the home of the Associate Claimant’s mother again in [XXX] of 2019 looking for the claimants.

Since coming to Canada, the Associate Claimant has started receiving text messages from members of the CJNG threatening death to the claimants and including pictures of dead and tortured bodies. These threats have continued as to as recently as a month prior to the hearing of this matter.

[9]       The panel finds that the claimants’ have established a subjective fear of harm by the CJNG in Mexico.

[10]     The objective evidence of country condition in the National Documentation Package (NDP) for Mexico supports the claimants’ allegations. In 2015 the Mexican government declared the CJNG one of the most dangerous cartels in the country and one of two with the most extensive reach. In October of 2016 the US Department of Treasury names the CJNG as one of the world’s most prolific and violent drug trafficking organizations. The CJNG’s reputation for extreme and showy violence continues in 2019, including 19 bodies found on display m Michoacan, some of which were dismembered and others that were hung from overpasses.3

[11]     The panel therefore finds that the claimants have established that they would each face a personalized risk to their life or of cruel and unusual treatment or punishment that is not faced generally by others in their country.

State Protection

[12]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate.

[13]     The claimants indicated that they did approach the police for assistance but were not provided with any assistance or protection.

[14]     Overall, the evidence regarding state protection in Mexico is mixed:

According to item 7.18 of the NDP, in addition to federal police, Mexico had 382,277 police personnel as of 2015, as well as additional soldiers engaged in law enforcement activities4. According to item 9.11 of the NDP, these officers are arresting individuals who commit crimes and such individuals are being successfully prosecuted by the court system; there are presently more than 229,915 prison inmates in Mexico, with about 60% having been convicted of a crime, and the rest in pre-trial detention pending a trial or sentence.5

The US DOS’ report at Item 2.1 of the NDP explains that “organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials.”6

The Victimology of Extortion report from Rice University found at item 7.16 of the National Documentation Package indicates that various levels of government in Mexico are “incapable or unwilling to protect its citizens and often collaborate with the organized crime groups to further their criminal endeavors”. The report describes the Mexican government as being “willfully blind and permissive of criminal activity” and reiterates that in many cases the state has become a “partner in crime” with several criminal organizations or cartels.7

An August 2019 Response to Information Request found at item 7.15 of the NDP indicates making a complaint to a state authority against a gang “would lead to pressure to drop the complaint and ‘almost certainly’ lead to death if the individual did not comply.”8

[15]     Upon consideration of the evidence as a whole, the panel finds that the presumption of state protection has been rebutted. Certainly, the state is not entirely ineffective and is able to provide some protection to some of its citizens. However, given the claimants’ own experiences and the country condition evidence before it, the panel finds that the state is either unable or unwilling to provide adequate protection to the claimants.

IFA

[16]     In Rasaratnam v. Canada,9 the Federal Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative (IFA) was raised, the onus is on the claimant to show that she does not have an IFA. To find a viable IFA, the panel must be satisfied that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, a danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the proposed IFA and (2) that the conditions in that part of the country are such that it would be reasonable in all the circumstances, including those particular to the claimant, to seek refuge there.

[17]     The first question is whether the claimants would be safe in proposed IFA. At the outset of the hearing the panel identified that IFA was in issue and proposed the IFA locations of Campeche City and Mérida.

[18]     When the claimants were asked if they could live in either of the proposed IFA locations they said they do not believe they can be safe anywhere in Mexico as the entire country is controlled by cartels. When asked specifically about whether members of the CJNG could find them in Campeche City or Mérida the Principal Claimant said the CJNG can find anyone within the republic of Mexico and that the cartel may track them through their relatives. When asked about how the CJNG would be able to find them in the IFA locations, the Principal Claimant said that that the CJNG was able to find them in Michoacan and even in Canada. When asked for details regarding the motivation of the CJNG to find them, the claimants both said that this is no longer just about money and that the CJNG believes that the claimants have mocked them and made a fool of them by not paying them the money they demanded and being able to escape without being harmed.

[19]     The panel finds that the claimants have provided sufficient evidence to establish that the agents of harm in their case would have the means and motivation to find them in Campeche City or Mérida. In coming to a decision, the panel has considered the CJNG’s size, its area of operation, and its level of interest in the claimants.

[20]     The CJNG is not present in Campeche City or Mérida, as indicated in the 2019 Stratfor Global Intelligence map in the NDP,10 however the NDP describes that a group such as the CJNG could leverage corrupt officials in another location or utilize “strategic alliances” with other groups to locate someone if sufficient interest exists.11 According to the NDP, it is possible for cartels to track people outside of their areas of operation; the common motivation to do so being something the magnitude of “a large debt or a personal vendetta”.12

[21]     Campeche City and Mérida are both over [XXX] km and about a [XXX]-hour drive from where the claimants lived in Guadalajara. However, the agents of harm have shown they were able to track the claimants to the home of the Principal Claimant’s mother in Michoacan, and have even managed to locate them in Canada to continue the threats. The panel finds that the CJNG’s persistent interest in the claimants, including the very recent threats received in Canada, support an ongoing vendetta by the CJNG that would reach the magnitude necessary for the CJNG to have sufficient interest in using their ability to track the claimants outside of their area of operation.

[22]     On the evidence before it, the panel finds on a balance of probabilities the claimants are at risk to life or cruel and unusual punishment throughout Mexico and that the claimants therefore have no viable IFA.

CONCLUSION

[23]     The panel finds that the claimants have satisfied the burden of establishing on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. The panel therefore accepts their claims.

(signed)           Jacqueline Gallant

February 11, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996.
3 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and
Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
4 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.18: Criminality, including organized crime; state response, including effectiveness; protection available to victims, including witness protection (2015 – July 2017), Immigration and Refugee Board of Canada, 21 August 2017. MEX105951.E.
5 Exhibit 3; National Documentation Package, Mexico, 30 August 2019, tab 9.11: Criminal Procedure Reform in Mexico, 2008-2016. The Final Countdown for Implementation. University of San Diego. Justice in Mexico Project. Octavio Rodriguez Ferreira; David A. Shirk. October 2015.
6 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 2.1: Mexico. Country Reports on Human Rights Practices for 2018, United States. Department of State, 13 March 2019.
7 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.16: The Victimology of Extortions in Mexico, Rice University. James A. Baker III Institute for Public Policy, October 2016.
8 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEXI06302.E.
9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
10 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
11 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEX106302.E.
12 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, Item 7.15: Drug Cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico; Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E.

Categories
All Countries El Salvador

2020 RLLR 25

Citation: 2020 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: John Kivlichan 
Counsel for the Claimant(s): Emily Rebecca Gerhard
Country: El Salvador
RPD Number: TB9-14423
Associated RPD Number(s): TB9-14504
ATIP Number: A-2021-00540
ATIP Pages: 000146-0000150


DECISION

[1]       MEMBER: The claimants are Ms. [XXX] and her minor daughter [XXX]. They are citizens of El Salvador who claim refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. At the start of the hearing, I appointed the principal claimant as the designated representative for the minor child, her daughter, given there has been long term separation of daughter from her birth father, who now lives in the USA. It is not contended there’s any issue here of abduction otherwise or problem about the principal claimant having sole custody of the minor claimant.

[2]       I determine that both claimants are citizens of El Salvador and no other country by reference to the copies of the passports found in Exhibit 1. The certified true copy of that for the principal claimant and the copy of a copy for the minor claimant. It was explained to me that the original passport for the minor claimant is being held by the US immigration authorities.

[3]       Let’s refer to the allegations in brief. The claimants assert a fear of the Maras otherwise known as the MS- 13 in El Salvador. Specifically, because the principal claimant was involved in a number of [XXX] as a [XXX] whose primary function was to work with at risk youth and try to divert those youth from otherwise becoming involved with the Maras, the gangs, who are the criminal actors in El Salvador. Because of the principal claimant’s work then and her background as a [XXX] who ran several programs to work with the at-risk [XXX], the Maras took a dim view of this, they threatened her repeatedly, they forced her to leave one job and relocate to another job. And in the most recent occupation in a new [XXX] starting in or so of [XXX] 2017, she only lasted there for about [XXX] months because by [XXX] of that year, she began to receive serious threats from a Mara member, personally identified himself to the principal claimant at her [XXX] as being from the MS-13 and he warned her that if she did not do as she was told then she would face the consequences “she took this as being a death threat”. She was also aware that in pervious positions, other [XXX] had been killed and in that most recent position, the [XXX] who were her pre-assessors had been forced to flee for their own lives. The principal claimant tried to seek help from the local police in [XXX] 2017 but while the police took her statement, nothing concrete came of the corn plaint. More importantly, as she was leaving the police station, she was approached by a runner or observer, a young boy acting on behalf of the Maras who was following her and who asked why she had gone to police. She knew at that point that she was under constant surveillance by the Maras, she never returned to the [XXX]. And furthermore, she learned soon afterwards that the extent of the Maras interest in her also went as far as her own daughter.

[4]       For these reasons, she decided to leave El Salvador as quickly as possible. A smuggler or snake head was found to get mother and daughter into the USA. They crossed the border first through Guatemala and then Mexico and into the USA by way of a raft on the Rio Grande. She was then picked up with her daughter in the USA and they were processed at that time however they found the detention conditions and the church to be aberrant. And furthermore, there were in the USA awaiting the outcome of their claims because of the situation there and other reasons which were detailed in oral testimony, they felt they would be safer by far in this country and thus made their move to come north into Canada. For these foregoing reasons they make their current claims.

[5]       I find to determine that the claimants are persons in need of protection due to risk to life or risk of cruel and unusual treatment or punishment for the following reasons. I accept that the testimony was credible throughout, it was given in a forthright and detailed fashion by the principal claimant. There were very few missed steps. There were some areas of concern primarily through gaps of the written narrative. I per say the narrative cannot be all encompassing for fear as it would be too lengthy but I would of appreciated for example, further details as to the problems in the second [XXX] where the principal claimant started in [XXX] or [XXX] 2017. The written narrative jumped into the problems in that second place by reference to an event in [XXX] 2017 but by comparison the oral testimony indicated area of problems from [XXX] even some months before hand. Furthermore, the country documentation disclosed by the claimants indicates that even before the principal claimant arrived at that [XXX] there was a history of violence against [XXX] like herself who had tried to engage the at-risk [XXX], this we see from Exhibit 6, page 13 and 14, the news article. So, in my view it is certainly my perception it would have been ideal to have seen greater detail as to why the principal claimant went to that [XXX] despite knowing-, actually said in oral testimony, all the history of problems there but that’s a minor point where one has easily overall thrashed the claim. So, to-, it would have been preferred had we been able to obtain the credible fear interview notes from the USA which I believe one from the access through the appropriate Access to Information Request to US CBP or INS or both, that might of assisted by corroborating that the allegations put forward to the USA at the credible fear interview stage were the same or consistent with the current claims. I see confirmation of the US credible fear interview though as being successful by way of the Notice to Appear from the US, department of Homeland Security appendant to Exhibit 2.1, the Basis of Claim From for the principal claimant.

[6]       So, in summary, I found the testimony given throughout was credible and trustworthy. There was appropriate corroboration by way of letters from calling [XXX] in the Exhibit package 6. We see the attestation also of the police and deputy inspector at page 1 to 5, employment letter regarding her [XXX], letters from the principal claimant’s colleagues and principal. All these serve to corroborate the details of the situation for the principal claimant and her daughter in El Salvador. Furthermore, the information applied by the principal claimant is entirely consistent with the known country conditions in El Salvador. Persons who are [XXX] are one of the classes of individuals who are at particular risk in so far as the gangs whether the MS-13 or the MS-18, consistently have reacted with the violence even murder against those who try to divert young [XXX] ages 10 and up from following the gang lifestyle. We this for example, when one looks at the report on the eligibility guidelines for assessing the international protection needs of asylum seekers from El Salvador, this from the UNCHR at Tab 1.5 of the National Documentation Package, Exhibit 3 on page 40, paragraph sub 10. It states, due to the youthful membership of the gangs in El Salvador, gangs reportedly often seek to exert inference on and in [XXX] and [XXX] institutions where they operate. [XXX] and other [XXX] working across the country where gangs are present reportedly occupy themselves subject to extortion demands and those who represent as I believe the principal in this insist, also did an alternative source from authority or resist or oppose the gangs and their recruitment of local youths have reportedly been threatened and killed by the gangs. It goes on then to state, depending upon the particular circumstances of the case, UNCHR considers that [XXX] and [XXX] working in [XXX] and [XXX] institutions may be in need of international refugee protection on the basis of their imputed political opinion or on the basis of other Convention grounds.

[7]       Given the outcome as positive, I dare say that the claimants care little that in my view there is questionable Nexus to any Convention refugee ground. The fear of persecution in my view is not necessary to enter the five grounds, I’ve considered the claimants testimony and I find that they fear crime or vendetta from members of the criminal gang, the MS-13. And the federal court cases in this regard for the most part have held that victims of such generally failed to establish any link between their fears in any one of the Convention grounds and that’s noted in the case law. For example, Marincas, M-A-R-I-N-C-A-S citation IMM-5737-93, more recently Bacchus, B-A-C-C-H-U-S that’s 2004 FC 821. So, certainly is an arguable point as to whether there is a Nexus or not. UNCHR takes a different view in the final outcome given my determination in positive, I doubt it matters to the claimants per say.

[8]       The claimants in view have also rebutted the presumption of state protection. They went to police as noted in the oral testimony and as evidenced by the reports we find in the Exhibit 6 package but with no success and more to the point the attempt to seek help from the police created a negative reaction from the gangs who were then able to identify the principal claimant as being what we would refer to ask a snitch and that itself exposed her to grave problems of irate immediate nature necessitating her departure from her job that very same day. So, as I said I consider that they have rebutted the presumption of state protection and all the circumstances and given that the country documentation consistently indicates in my view from Exhibit 3 NDP that there is no state protection both because of the inability but also because pervasive corruption that the MS-13 and MS-18 have managed to infiltrate various local police.

[9]       There was a further question mark about the abandonment of the US claims. As I said, I might of preferred to have seen more careful discussion of that in the written narrative. The only mention about the USA really indicates when I looked to the narrative at line 91 and 92 and thereafter, there were problems securing a lawyer, Jack of fonds and that was the real reason to depart from the USA for fear of deportation or arrest. The oral testimony differed from this because we got forward details about the oppressed conditions in the USA that indeed when the principal claimant consulted with the lawyer after arriving in the USA, in or about [XXX] 2018 she was advised that there was little chance of success in making a claim based on gang violence in El Salvador. The lawyer according to oral testimony based that upon directors from the president himself. My specialized knowledge and expertise is of course that the directive to restrict the ability to make a refugee or asylum claim in the USA arose from the promulgation of the then Attorney General, Mr. Sessions, S-E-S-S-I-O-N-S in or about [XXX] 2018. Whoever said it, I acknowledge that the US law is in flux, there is a clear indication from the highest authorities in the US that there is a grave risk of rejection of one’s asylum claim based upon the grounds of gang violence in El Salvador. So, for that reason, I draw no adverse inference in the all the circumstances that the claimants abandoned their US asylum claims in order to come here seeking true safety.

[10]     So, to summarize, as I said, there is ample documentation from the claimants to corroborate their process situation. The articles presented by counsel in the Exhibit package 6 address the particular problems of those who deal with [XXX] children who are at risk. We see this for example in the articles presented at page 18 from the Atlantic Magazine, the Rogers article at page 25 and the Inside Crime Discussion starting at page 31, all within the country disclosure section and these are all consistent with the allegations from the principal claimant. I did note also, in my discussion with her during the course of oral testimony that she had applied for a Canadian visitor visa but being rejected even as early as we see from the GCMS notes in Exhibit 1, in or about May or so of 2017, sometime before she actually left the country to go to the USA. Upon questioning the principal claimant, she said because of her prior experiences in the previous [XXX], she was then worried about getting further threats and had little confidence about her long-term prospects in El Salvador, however she lacked the fonds to get a visa from the either the Canadian authorities or US authorities at that time and was thus refused. It is apparent that there was the-, not shall we say obligation to leave the country even then so there is a slight question mark as to the timing of departure. In theory, the claimants might have left earlier then they did but in all these circumstances, I draw no negative inference. It would appear that their finances were limited and the principal claimant was trying her best to seek a new avenue of employment where she had been assured in the second [XXX] where she had worked most recently that she would be offered security. After a few months in that place in Morazan, M-O-R-A-Z-A­N, she found out that her employers had misled her because the police protection was withdrawn leaving her to the approaches by the gangs at their mercy.

[11]     My point here is essentially, I draw no adverse inference from the delay in leaving, from the abandonment of the US claim and ail the circumstances and I find the claimants have successfully made their made as persons in need of protection. I, therefore determine that the claimants [XXX] and her minor daughter [XXX] are persons in need of protection due to the risk to life or risk of cruel and unusual treatment or punishment which is more likely then not were they to return to El Salvador in the present day. And which risk is entirely personalized in nature given the repeated escalating threats to the principal claimant from the Maras in El Salvador. That concludes my decision.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2020 RLLR 20

Citation: 2020 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: June 19, 2020
Panel: Tyler Nicholson
Counsel for the Claimant(s): John W Grice/Cemone Morlese
Country: Sri Lanka
RPD Number: TB9-00748
Associated RPD Number(s): TB9-00789, TB9-00806, TB9-00807
ATIP Number: A-2021-00540
ATIP Pages: 000124-0000129


REASONS FOR DECISION

[1]       The claimants [XXX] (hereafter the “male claimant”), [XXX] (hereafter the “female claimant”), [XXX], and [XXX] purport to be citizens of Sri Lanka. They have claimed refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

Designated Representative

[2]       At the time of the hearing, the minor claimants [XXX] and [XXX] were minors. As the principal claimant is their father, the panel designated him as their representative. At the start of the hearing, the principal claimant confirmed his role as the designated representative and his responsibilities therein.

[3]       Given their ages, the panel did not require the minor claimants to testify during the hearing.

ALLEGATIONS

[4]       The claimants’ allegations are set out in full in their Basis of Claim (BOC) forms.2 The claimants allege that they are being persecuted due to the male claimant’s work as [XXX] for a NGO that [XXX] of politicians.

[5]       The male claimant claimed to have become involved with the [XXX]. As part of his work, he investigated a number of prominent politicians and after reporting discrepancies in their [XXX], testified he became a target.

[6]       The claimant indicated that he was kidnapped, brought to a rural village, and severely beaten, and was threatened with further harm.

[7]       The claimants left Sri Lanka on [XXX], 2018. The principal claimant’s mother testified that the police have come to their house repeatedly and asked about the claimants.

DETERMINATION

[8]       The panel concludes that the claimants are persons in need of protection due to a risk to their lives.

ANALYSIS

Identity

[9]       The panel was provided with true copies of valid passports and birth certificates from Sri Lanka for all claimants.3

[10]     The panel finds that these documents and the testimony of the claimants are sufficient to establish their identities on a balance of probabilities.

Nexus

[11]     The claimants are Sinhalese, Buddhist, and speak the Sinhala language, in common with the majority of the country.

[12]     The claimant indicated that he was being targeted due to his political affiliation with [XXX] political party, the National Unity Alliance. The male claimant was asked what party symbol appeared on ballots next to the party name, a traditionally important symbol in Sri Lankan politics.

[13]     The claimant indicated he did not know. When it was put to him that it traditionally used an image of eyeglasses, the claimant was candid with the panel that he was not heavily involved in the political side of the foundation, and did not regularly vote.

[14]     The panel finds it unlikely that the male claimant would be imputed as a supporter of a political movement he had next to no involvement in. Given the male claimant’s clear testimony on the matter, the panel did not draw a negative inference with regard to his credibility.

[15]     Taking in to account the claimant’s BOC narrative and his testimony, the reason his agents of persecution are targeting him relies on his performance of accounting duties with [XXX] and his probable reporting of crimes and regulatory offences. It is not because of his political beliefs. The panel finds that the male claimant was not politically involved in Sri Lanka, and finds that there is not a nexus connection to the Convention on the ground of political belief. This also means that the other claimants are not members of a particular social group as family members of the male claimant.

[16]     The panel finds that the claimants have not established a nexus to the convention. The panel must find that the claimants are not Convention refugees. The panel will continue its analysis regarding Section 97(1) of IRPA.

Credibility

[17]     The panel found both adult claimants to be generally credible in their testimony. They answered questions clearly and completely, were spontaneous, and did not seem calculating in their responses. The claimants also provided considerable corroborating documentary evidence, including affidavits from family members, medical notes, and letters from the organizations the male claimant was a member of.

[18]     The panel accepts that the male claimant worked as an [XXX], that he was abducted and beaten by the police as described, and that the other claimants were threatened due to his actions.

Objective Basis

[19]     The panel also considered objective evidence contained in the National Documentation Package, which noted that police in Sri Lanka are notorious for being able, despite legal guidelines, to arbitrarily detain and question suspects.4 The panel finds that, given the local police and other thugs have been after the claimants, the claimants have credibly indicated that the claimants have been targeted by the agents of persecution and are being pursued and face a risk to their lives.

[20]     Given the specific targeting of the claimants due to the male claimant’s accounting of funds of specific politicians, the panel finds that this would not be a risk generally faced by others, and is not inherent or incidental to lawful sanctions.

[21]     The panel finds that the claimants have established an objective basis for their claim, and finds that they fear, on a balance of probabilities, a risk to their lives or of cruel and unusual treatment or punishment if detained.

STATE PROTECTION

[22]     The state is presumed able to provide adequate protection to its citizens. Therefore, claimants have the duty to seek state protection before seeking protection in Canada. However, in certain circumstances, it would be objectively unreasonable to expect a claimant to do so. Furthermore, the protection available to a claimant may not be adequate given their specific circumstances.

[23]     The claimants testified that the local police were targeting them, and that they feared going to authorities due to them being targeted by politicians. This is corroborated by objective evidence, which notes that witness protection regimes in Sri Lanka are not considered viable or up to international standards, and are prone to abuse.5

[24]     The panel finds that the claimants have rebutted the presumption regarding adequate state protection existing in Sri Lanka.

Internal Flight Alternative (IFA)

[25]     The panel finds the claimants have credibly established that the agents of persecution have the ability to track the claimants, given that they have effective control over the entire country, and finds that there is no IFA for the claimants in the entirety of Sri Lanka due to a risk to the claimant’s life existing, on a balance of probabilities, throughout Sri Lanka.

CONCLUSION

[26]     The panel finds that the claimants, on a balance of probabilities, face a threat to their lives if they were to return to Sri Lanka and are persons in need of protection.

[27]     Their claims are accepted.

(signed)           Tyler Nicholson

June 19, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibits 2-5.
3 Exhibit 8, pp. 73-89.
4 Exhibit 3, 1.4 at 8.2.4
5 Exhibit 3, 1.4 at 6.6.4, 1.9 at 5.12.

Categories
All Countries Bangladesh

2020 RLLR 10

Citation: 2020 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: September 29, 2020
Panel: Ana Rico
Counsel for the Claimant(s): Md Wazir Hossain
Country: Bangladesh 
RPD Number: TB8-19236
Associated RPD Number(s): TB8-19239, TB8-19247, TB8-19248, TB8-19249
ATIP Number: A-2021-00540
ATIP Pages: 000066-000071


REASONS FOR DECISION

[1]       These are the reasons for decision of the Refugee Protection Division (RPD) in the claim for protection filed by [XXX], [XXX], [XXX], [XXX], and [XXX] under sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The Board appointed Mr. [XXX] as the designated representatives of the minor claimants.

ALLEGATIONS

[3]       The allegations are fully set out in the Basis of Claim forms (which can be found at exhibit 2.1-2.5). In short, the claimants allege that they face a risk to their life at the hands of Awami League and Communists cadres because they seek to extort them for [XXX]. If returned to Bangladesh, the claimants fear that they will be subjected to further assaults, kidnappings, and ultimately lose their lives.

DETERMINATION

[4]       The panel determines that the claimants are persons in need of protection as they face a risk to their lives in Bangladesh because of extortion threats from criminal elements.

ANALYSIS

Identity

[5]       The claimants’ identities as nationals of Bangladesh are established, on a balance of probabilities, through the certified true copies of their passportsi, and other government issued documentsii that were submitted to the Board.

Nexus- Section 97(1) Claim

[6]       The panel finds, for the reasons outlined below, that the fear alleged by the claimants fall under section 97(1) of the IRPA and has assessed it as such. Though the claimants are targeted by a politically motivated organization, the reasons for them being targeted is not tied to a Convention ground. The claimants indicate in their evidence that they are targeted because of their wealth, and social standing. While the claimant believes that the targeting may also be tied to a future political bid, the claimant indicated that he had no aspirations for politics. Moreover, in none of the incidents of persecution do the persecutors allude to any political reasons for targeting the claimants. It is clear in the agent of persecutions’ threats and actions that the reasons for targeting the claimants is tied to their wealth. A person’s socioeconomic status is not an innate or immutable characteristic as contemplated by the ground of membership in a particular social group. Given that the claimants are targeted because of their wealth, the panel finds that they have failed to establish a nexus to a Convention ground.

Credibility

[7]       Testimony given under oath is presumed to be true unless there are reasons to doubt its veracity. The claimants have given the panel no valid reasons to doubt the veracity of their evidence. There were no significant, unexplained inconsistencies, implausibilities or omissions from the principal claimant’s testimony. The principal claimant appeared to testify in a spontaneous and forthright manner.

[8]       The principal claimant provided realistic detail about the incidents of persecution that remained largely consistent with his Basis of Claim and other evidence contained in the record. The claimant provided significant detailed testimony concerning the first extortion event, the kidnapping of his sons, as well as, the agent of persecutions ability to locate them after relocating within Bangladesh.

[9]       While the principal claimant’s police report regarding the kidnapping of his son omitted the actual kidnapping, the panel finds the explanation given to be reasonable. It is entirely reasonable that the principal claimant would omit the kidnapping to shield the children from any greater violence, as he was threatened with death if he reported the kidnapping to the police. Given the threats made, and the police’s past inability to protect, that the principal claimant would not provide these details to the police.

[10]     Overall, the principal claimants’ evidence remained internally consistent and consistent with the other evidence in the record. Moreover, the allegations are well supported with a plethora of evidence whose authenticity the panel has no reasons to doubt. The corroborative evidenceiii, including police reports, witness statements, proof of sale of properties/assets to pay ransoms, proof of hiding in Bangladesh, is persuasive evidence that the allegations are, on a balance, true.

[11]     For the reasons state above, the panel finds that the claimants claim is credible, and that they have established that the allegations are true on a balance of probabilities.

Personalized Risk to Life

[12]     The panel must consider whether the claimants face a personalized risk to their life that is not faced generally by others in Bangladesh. The panel finds, for the reasons outlined below, that the claimants face a personalized risk to their life in Bangladesh. While kidnappings and extortion of wealthy persons is commonly faced by citizens in Bangladesh, the specific and repeatedly increased violent targeting of the claimants escalated the risk from that faced by others generally in the country to that of a personalized targeting of the family. It is evident from the claimants’ evidence that the targeting escalated from extortion threats, to threats of violence, to kidnappings. The steady increase of violence meted against the claimants, as well as the agent of persecutions pursuing the claimants to other parts of Bangladesh, clearly demonstrates that the targeting, and ultimately risk to the claimants’ lives, was very personal in nature. As such, the claimants face a personalized risk to their lives that this not face generally by others in Bangladesh.

State Protection

[1]       There is a presumption that States can protect its own citizens; however, it is open for a claimant to rebut this presumption with clear and convincing evidence of an unwillingness or inability of the State to protect them.

[13]     In the present case, the claimant sought state protection on four occasions. The claimants’ actions of seeking state protection is corroborated by the General Diaries contained in the record.iv While the police did record the claimant’s recounting of the incidents, the police did not investigate further, nor did they offer the claimants any protection, despite promising to take steps to follow up. Despite the claimants’ repeated attempts to follow up regarding the open investigation, the police failed to respond or provide any concrete information as to the state of the open investigations. The claimants above described personal experiences demonstrate that the police failed to provide adequate state protection to the claimants.

[14]     The objective documentary evidence also demonstrates that, in this case, state protection at an operational level remains inadequate. The National Document Package for Bangladesh contains many reports of extortion, kidnappings, and threats made by Awami League cadres, and their counterparts. The NDP for Bangladesh also highlights that the crimes go largely unpunished, and under-reported. There are reports of impunity for crimes committed by Awami League cadres, and their supporters. There are also instances in which the police collaborate with Awami League cadres to perpetuate these very same crimes against citizens in Bangladesh.v

[15]     Given the claimants’ own experiences with the police, and the level of impunity documented in the objective evidence, the panel finds that there is no adequate state protection for the claimants in Bangladesh at this time.

Internal Flight Alternative

[16]     As the agent of persecution is active throughout Bangladesh and has located the claimants even after relocating within Bangladesh, the panel finds that there is no viable internal flight alternative for the claimants.

CONCLUSION

[17]     Based on the totality of the evidence, the panel concludes that the claimants are persons in need of protection. The panel accepts their claims.

(signed)           Ana Rico

September 29, 2020

i Exhibit 1.
ii Exhibit 6; items 1.1-1.4.
iii Exhibits 6 and 7.
iv Exhibit 6, items 8.1-8.2, and items 9.1-9.2.
v Exhibit 3, National Document Package for Bangladesh, March 32, 2020, tab 2.1, tab 2.3, 2.7, and 2.9.

Categories
All Countries Mexico

2019 RLLR 23

Citation: 2019 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Kevin Fainbloom 
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TB8-27168
Associated RPD Number(s): TB8-27821, TB8-27316
ATIP Number: A-2021-01124
ATIP Pages: 000148-000150


DECISION

[1]       MEMBER: So, these are the reasons into the determination that the, that Mr. [XXX], [XXX], his wife [XXX] and their youngest son [XXX] are people in need of protection. The claimants are citizens of, yeah, the-, the-, the claimants that remain at this point in the claim are citizens of Mexico claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[2]       The allegations of the claimants is contained in the Basis of Claim form narratives. I’m going to briefly summarize those allegations. [XXX], the principal claimant was a [XXX] and dump [XXX] and [XXX] in Mexico from [XXX] 2014 until [XXX] 2017. He worked in a number of States that bordered the United States. In [XXX] 2016, he was befriended by 8 men who became very friendly with him and they spent some time eating together at a near-, at a restaurant. After a number of different encounters with the same men, the men indicated to the principal claimant that they wanted him to work for their company. These men indicated they knew about his wife, his children, he-, they knew where they lived and so on. They said that they were members of the Gulf cartel and they needed his assistance.

[3]       The principal claimant told them he needed time to think about this offer. On [XXX] 2016, the principal claimant was kidnapped, taken to a ranch and tortured. They showed him on a video phone that his wife had been kidnapped as-, had been taken, she was being-, and she was being raped, while their youngest child-, while the child was in a different room. They also showed him a video in which they were killing people and chopping up their bodies. They ordered the principal claimant to get the company’s [XXX] and take them to the border with the United States. On [XXX], they shot up his car and left pictures of people that had been chopped up. On [XXX], they-, they went to his house, kidnapped him from the home, took him to an isolated area where he was beaten. Another man was brought to this area and murdered in front of the principal claimant. The principal claimant returned to his work on [XXX] the [XXX], he gave notice that the was going to be resigning from his position. He quit his job on [XXX] the [XXX]. Two days later he and the other claimants relocated to hide themselves at the principal claimant’s in-law’s home. Unfortunately, the death threats continued, the principal claimant was able to leave Mexico and travelled and made his way to Canada. His wife and two children remained in Mexico and left at a later time, until July of last year when they-, they were all joined together in Canada. They are now afraid to return to Mexico.

[4]       After the purposes, the reason I just want to clarify that the claim of Justice [XXX], this couples’, this couples’ oldest child was withdrawn at the outset of hearing as this child is an American citizen and who is not intending to pursue a claim against the United States.

[5]       The three remaining claimants that is [XXX], [XXX] and [XXX] I find that they are not Convention refugees as they do not have a well-founded fear of persecution for a Convention ground in Mexico. However, I find that they are people in need of protection, as their removal to Mexico would subject them personally to a risk to their lives.

[6]       The claimant’s identities as-, as citizens of Mexico is established by the documents on file which include copies of their passports.

[7]       With respect to credibility, as I indicated to the principal claimant, I have some concerns which are properly called plausibility concerns. Specific plausibility of the family remaining at their in-law’s home after they had been found there. The plausibility of their continuing to send their son to school. The plausibility of the principal claimant giving notice that he was going to be leaving his work, rather than just working-, just leaving quietly. However, notwithstanding these concerns, there are a number of corroborative documents that are helpful in establishing the credibility. I do believe the principal claimant has been traumatized in some fashion. The female adult claimant was questioned and provided some evidence which I thought was quite credible and referred to her being subject to rapes. The claimant’s allegations are not inconsistent with country conditions and the types of things that can happen to people there who are-, who are in some form of conflict or trouble with the-, with the Gulf cartel. So, on a balance of probabilities, I accept the claimant’s allegations to be credible. That is, I accept that because of the principal claimant’s ability as a [XXX], as a [XXX], he was of interest to the Gulf cartel. I accept that he was pursued by the Gulf cartel to work for them and I accept that Gulf cartel was intent on harming him and his family when they came to believe that he was not going to be co-operative.

[8]       Given that I accept those allegations, the current conditions in Mexico indicate that there is an objective basis to their fear of returning to that country. Gulf cartel and other-, other organized criminal groups have been implicated in numerous killings and acting with impunity and most tragically at times in league with corrupt federal state, local and security officials. Criminal organizations have been involved in forced disappearances, torture, sexual violence, kidnappings and-, and so on. So, I believe if these claimants return to Mexico, their lives would be at risk of these agents of harm.

[9]       I have considered whether adequate state protection would be available or whether there might be a viable internal flight alternative. I find given the complicity, the documents referred to of the criminal organizations working with federal, state, local and security officials, that adequate state protection would not be provided. I would note, that the principal claimant described how he would be escorted by the army and the police when he [XXX], they wanted him to drive to the-, to the border with the United States, which obviously suggests again, corrupt officials being involved in these activities. So, I don’t believe adequate state protection would be available with respect to a viable internal flight alternative, I find there would not be one. There’s insufficient evidence before me that the Gulf cartel cannot reach to anywhere in Mexico, if so desired. In particularly, in light of the corruption, I’ve just referred to it is quite reasonable to assume that if they were intent on finding someone they could find a person who is living above ground, that is leaving and operating in-, in any free manner. So, I did not believe there would be a­ ‘ a viable internal flight alternative.

[10]     So, to conclude, I find the claimants face a risk to their lives if returned to Mexico and accordingly, I find the claimants to be people in need of protection pursuant to Section 97(1)(b) of the Immigration and Refugee Protection Act.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

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

Categories
All Countries Yemen

2019 RLLR 81

Citation: 2019 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: November 29, 2019
Panel: Harry Dortelus
Counsel for the Claimant(s): Jonathan Richard J Lage
Country: Yemen
RPD Number: MB9-05137
ATIP Number: A-2020-01459
ATIP Pages: 000011-000014


REASONS FOR DECISION

EXPEDITED PROCESS

[1]       The Tribunal issues this decision without a hearing in accordance with paragraph 170(f) of the IRPA and the Policy on the Expedited Processing of Refugee Claims by the Refugee Protection Division.

[2]       The following is the decision related to the refugee claims of: Mr. [XXX]. He alleges that he is a citizen of Yemen and is claiming refugee protection as “Convention refugee” and as “persons in need of protection” under sections 96 and 97(1) of the Immigration and Refugee Protection (IRPA).

DECISION

[3]       The Tribunal concludes that the claimant is a person in need of protection under section 97 of IRPA.

ANALYSIS

[4]       The determinative issues are identity and credibility.

IDENTITY

[5]       The claimant’s name is as indicated in his Yemeni passport: [XXX].

[6]       The claimant has established his identity by means of the certified copy of his Yemeni passport which was seized by Canadian authorities when he claimed for asylum.1

[7]       The claimant lived in Saudi Arabia from 2011 until February/March 2016 according to his Generic Application Form and his Schedule A Form. He moved to the USA to Study in [XXX] or [XXX] 2016 and never had any problem in Yemen, according to his CBSA interview dated March 12, 2019. He left the U.S. to come to Canada on [XXX] 20192, to claim asylum.

Allegations

[8]       The story of this claim is as follows.

[9]       The claimant alleges that he is a citizen of Yemen but he was born and resided in Saudi Arabia and never loved or resided in Yemen. He says that he is married to a Saudi citizen but has no permanent residence in that country or citizenship. He fears of being deported to Yemen where he may be targeted by the militias, including the houthis, as an outsider.

[10]     He alleges that his relatives were assassinated in Yemen in 1974, 2013 and 2015 and he has no known relatives in Yemen. He is afraid to return to Yemen because, as a Yemeni from abroad, he could be targeted by various militias there.

[11]     In his interview with CBSA authorities, the claimant recognized that he had no personal history of persecution or harm in Yemen3.

CREDIBILITY

[12]          The claimant has established, on the balance of probabilities, that as a young Yemeni citizen who never lived or resided in that country, that he may face harm because of the ongoing civil war in Yemen.

[13]     The evidence shows that he was born in Saudi Arabia and married a Saud citizen, which does not grant him the right of citizenship in Saudi Arabia. His family also resided in Saudi Arabia and outside Yemen, which would leave the claimant vulnerable if he was to be sent to Yemen.

[14]     The documentary evidence shows that Yemen is not governed by a strong central government and various militias control several parts of the country and as a person who never lived in Yemen and carries foreign identity documents, the claimant could easily become identifiable thus a target of those militias.

[15]     Given the fact that there is no state protection and the situation is similar all over the country, the Tribunal concludes that there is a risk to the claimant’s life if he was to be sent back to Yemen.

DECISION

[16]     Therefore the claim is accepted.

(signed)           Harry Dortelus

November 29, 2019

1 Notice of Seizure of the claimant’s Yemeni passport dated March 12, 2019.
2 Canadian Border Services Agency (CBSA) interview dated March 12, 2019.
3 Note No. 2.

Categories
All Countries El Salvador

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 ———-