TA8-19899

RPD File No. / N° de dossier de la SPR : TA8-19899 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing July 12, 2010 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 10, 2010 Date de la décision Panel B. Volpentesta Tribunal Counsel for the Claimant(s) Donald Greenbaum Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre [1] XXXX XXXX XXXX XXXX (the "claimant") claims to be a citizen of El Salvador and makes a request for protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS [2] The claimant alleges the following: [3] In XXXX 2008 the claimant left El Salvador after being approached by members of the Mara XX. The men wanted the claimant to join their gang. They threatened harm to the claimant if he did not join. The claimant was approached twice. First, two men approached him at his home as he sat on the front step listening to music. The men said that he had to join the gang or they would kill him. The claimant recognized the men as gang members by their tattoos. Then, three or four weeks later, four different members of the same gang approached. They once again threatened him but because it was in a public place, they did not physically harm the claimant. The claimant recognized one of the men as "El Indio" who was known as the leader of the Mara XX in that town. [4] The claimant left El Salvador in XXXX 2008 for the United States of America (USA). He was detained in the USA for about a month and then deported. The claimant entered the USA once again in XXXX 2008 and then made his way to Canada. On October 14, 2008 the claimant entered Canada and requested protection. He fears that if he were to return to El Salvador, he would be harmed by the gang. DETERMINATION [5] I find that the claimant is neither a Convention refugees nor a person in need of protection. My reasons are as follows. ANALYSIS Identity [6] The claimant's oral testimony and documentary evidence establish that he is a citizen of El Salvador.2 Credibility [7] Some of the evidence the claimant provided was not reliable. For example, the claimant's Personal Information Form3 (PIF) narrative indicates that the claimant was approached in XXXX 2008 by the gang. When he first made his claim for protection the claimant stated that he was approached in XXXX 2008.4 In a letter from the National Civil Police they indicate that he reported being threatened by members of a gang in XXXX 2008.5 During the hearing the claimant said he was approached by the gang two or three months before he left El Salvador the first time which was in XXXX 2008; this would mean the gang's threats came sometime in XXXX or XXXX of 2008. The claimant explained the inconsistency by stating that he must have been confused. I find this to be unreasonable. The letter from the National Civil Police states the claimant approached police in February because he was "pursued relentlessly". The claimant felt so in danger he fled El Salvador. The claimant requested protection in Canada between four or eight months after the incidents depending on which version is accepted. With such a short lapse of time and the significance of the event it is reasonable to expect the claimant to recall at least what month he was approached. [8] Furthermore, the claimant did not present the police report he says he made to police when the gang approached him. The claimant says he was not given a copy. However, the letter from the National Civil Police indicates that he did go make a report and the letter from the Municipal City Hall indicates that there is a report on file.6 Both these letters were obtained in XXXX 2010 shortly before the hearing. The claimant explained that his mother was able to obtain the letters for him. The claimant could not explain why his mother did not obtain a copy of the original report made by the claimant in 2008, he did not ask her. The claimant said he made no effort to obtain the original copy of the report that was allegedly on file. If the claimant was able to obtain letters from competent jurisdictions regarding a police report, with one acknowledging that there is a report on file, then it is reasonable to expect that original report to be presented as evidence as well. The fact that it is not without explanation, and the that the claimant made no effort to obtain it, and that the claimant had more than eighteen months to obtain the report, leads me to draw a negative inference with respect to whether what report, if any, was made. I place little weight on the letters from the National Civil Police and the City Hall because they merely recount what the requester is asking of them without detail, and there is a document which could have been provided to support the allegations of the letter, yet it was not provided. [9] For these reasons I find the claimant was not himself threatened by gang members. Section 96 - Convention Refugee Grounds [10] If the claimant was approached to join a gang, and I do not believe that he was, the determinative issue in this section 96 analysis is nexus. That is, whether the harm feared is to be caused on account of one of the Convention grounds. I find that it is not. [11] The claimant said he was threatened to should join the gang or suffer the consequences, that is, they would kill him. The claimant refused. The Federal Court has held that victims of crime and vendettas7 generally fail to establish a link between their fear of persecution and one of the Convention grounds and the Board has been upheld in its finding of lack of nexus, where the claimant was a target of a personal vendetta8 or where the claimant was a victim of crime.9 In this case the claimant was a victim of recruitment efforts and threats. When the claimant refused to join the gang, they threatened to kill him. [12] Crime and recruitment in this case are critically intermingled. There was no persuasive evidence that the claimant was being targeted for recruitment for any particular reason that could provide a connection to a Convention ground keeping in mind that the the paramount consideration in determining a particular social group is the general underlying themes of the defence of human rights and anti-discrimination.10 [13] In the context of this claim, the claimant himself said he did not know why they would ask him to join the gang. Counsel offered that the interest of the gang may have been some physical attributes that made the claimant appealing as a recruit. This does not provide a nexus to a Convention ground. The perception of the gang, in this case, can be only that the claimant was a victim of their efforts to recruit. Recruitment, and forcible recruitment under threat, is part of the way the gang works. Counsel agreed that if gangs do not recruit, they at some point are no longer a gang. There is no persuasive evidence that the gang had any other reason for asking the claimant to join the gang. [14] Counsel made submissions that young men are targets of recruitment, implying that the gangs' discrimination based on age and or gender. That is, they target young males. The claimant's own evidence was that he did not know why he was targeted and the gang provided no information. The documentary evidence indicates that women and children are also recruited. The Maras are made up predominantly, but not exclusively, by males.11 Reports are that the MS-13, the country's biggest gang, recruits between people between the ages of 11 and 40.12 It is reasonable to expect that their biggest rival would do the same. [15] The documentary evidence does not support the conclusion that only young males are targets for recruitment. Membership in gangs is often a response to socio-economic conditions such as poverty, lack of education, lack of employment, and dysfunctional families. Social exclusion is often cited as the principle cause of the increase in gang membership by youth.13 [16] There is no persuasive evidence that the gang systematically recruits young people by force. This, in any event, is a form of harm that a gang might perpetrate upon the population for a number of reasons. If a young person is extorted, they are not extorted because they are young. If they are asked to join a gang and have the courage to refuse, they are not in harm's way because they are young, but because they have somehow disrespected, angered or betrayed the gang and have now become their victim. A particular social group cannot be defined solely by the fact that a group of persons are objects of persecution.14 [17] Therefore, I find the claimant was one of the many victims of the diverse criminal activities of the gang. He is simply a victim of crime, which does not provide him with a link to a Convention ground. The claimant's fear in this case is not linked to race, religion, nationality, political opinion, or membership in a particular social group. As a result this claim must fail under section 96 of the IRPA. However, a separate analysis under section 97 of the IRPA follows. Section 97 - Persons in Need of Protection [18] If I were to believe that the claimant was threatened by a gang, the determinative issue in this section 97 analysis is whether the claimant faces a personal risk that is not faced generally by others in El Salvador. There are two separate components. Section 97(1) stipulates that the claimant must be subjected personally to the risk, and secondly, section 97(1)(b)(ii) of the IRPA specifically excludes claimants who are at a risk that is faced generally by others in or from their country. [19] To qualify as a person in need of protection under section 97(1)(b), the claimant must face a personal risk such that their removal to their country "would subject them personally" to a risk to life or a risk of cruel and unusual treatment or punishment. However, section 97(1)(b)(ii) specifically excludes a risk that is "faced generally" by others in of from that country. The assessment of risk under section 97(1)(b) must be specific to the individual,15 and the evidence must establish a specific, individualized risk of harm with regard to the particular claimant.16 The risk of harm faced by the claimant cannot be indiscriminate or random, and one faced generally by the population of the country.17 The risk of harm must arise from something more than an isolated incident18 or a random act.19 Where a claimant has been specifically targeted by criminal elements, the personalized risk may be made out provided the claimant is not a victim of generalized violence.20 The fact that a claimant is personally at risk does not necessarily mean that the risk is not one faced generally by others in that country.21 [20] A generalized risk need not be experienced by every citizen.22 The word "generally" is commonly used to mean "prevalent" or "widespread".23 A generalized risk could be one experienced by a particular group or subset of the country's population, thus membership in that category is not sufficient to personalize the risk.24 The fact that a group of persons may be victimized repeatedly or more frequently by criminals (for example, because of their perceived wealth or because they live in a more dangerous area), does not remove the risk from the exception if it is one faced generally by others.25 Just because a claimant is personally at risk does not mean that the risk could not be one faced generally by others from that country. For example, in Acosta, Ventura De Parada and Rodriguez Perez, the claimants feared extortion, violence, threats and reprisals from criminal gangs for failing to comply with their demands, yet were found to be victims of generalized violence and criminality.26 [21] The claimant testified that Mara XX and other maras are all over the country. The documentary evidence indicates that violent crime and gang related crime is widespread.27 Much of the violence in El Salvador can be attributed to gangs who are involved in local crimes including homicide.28 El Salvador has hundreds of known street gangs totaling more than 30,000 members. Youth gangs employ brutal practices and whereas they previously organized to protect their neighbourhoods, they now strike anywhere by attacking, robbing, extorting and killing because they need money. Other crimes in El Salvador include extortion, theft, armed robbery, credit card cloning, kidnapping for ransom and rape. The claimant testified that his mother had been contacted along with many others in the neighbourhood in an attempt to extort money. The documentary evidence supports that the problem of extortion is growing. In 2008, there was a significant increase in the number of reported extortion cases. El Salvador is one of the most dangerous countries in the world with a murder rate of 50 per 100,000 where rates higher than 10 per 100,000 is considered to be an epidemic.29 In some neighbourhoods the gangs operate virtual fiefdoms demanding what they call "war taxes" from public transport workers and inhabitants and there is growing evidence that this not only happens in larger urban centres but that it is spreading to smaller towns.30 [22] The claimant says that because he refused to join the gang, he has somehow disrespected the gang and they will seek revenge on him to set an example. While there is evidence that once in a gang and try to leave you likely be pursued, there was no similar persuasive evidence that those who refuse to join would be pursued in the same fashion. In any event, this too is within the realm of the normal operations are for the gang. Violent gangs can be expected to enforce their threats. [23] The claimant fears that he will be harmed because he was a target for recruitment and could be again. This too is one of the risks that the general population is exposed to. The Federal Court has decided in one case that being targeted by a highly organized gang for recruitment and being coerced by harm to join that gang necessarily means that person is subjected personally to that risk and faces a higher risk than the general population.31 However, in that case, the panel had not properly considered whether the claimant would, nonetheless, face a risk that is faced generally by others. The claimant here presented no persuasive evidence that he was particularly targeted by the gang for any particular characteristic he presented or any particular skill the claimant may have had. The claimant said he did not know why he was targeted, but that many young people are targeted. Counsel argues that it was his physical characteristics that moved the gang to target the claimant. However, there was no persuasive evidence offered that only men with the claimant's physical characteristics are targeted. In any event, it makes sense for the gangs to recruit individuals they believe would add to their business of crime. In this case the claimant was indeed personally targeted insofar as he was a victim of crime and the type of crime included extortion on his mother and coercion on him to join the gang. They asked him to join the gang but there was no particular reason for targeting him. [24] Also, there are two parts of the definition that must be met and each part needs to be looked at separately in the context of the claimant's circumstances. That is, not only must the claimant be personally at risk (the first part), but that risk cannot be one that is faced generally by the population of the country (the second part). Recruitment efforts are widespread, indiscriminate and random as described above given the social context of the country. The gang recruits to perpetuate its criminal operations. Counsel agreed that recruitment is part of the normal operations of the gang; without recruitment there would be no more gang. I appreciate that once a person has been selected for recruitment, the risk cannot help but become personal. However, just as is the case in other types of crime, once the person is a victim, they have also become personally targeted, but the specific risk faced may still be one that is faced generally by the population. Therefore, the claimant may have been personally at risk, but the specific risk he faces, threats and recruitment, is no different than one faced generally by people in El Salvador. The Federal court has upheld cases where persons were personally targeted, but this still did not make the risk they faced more than a generalized risk that anyone in that country would face.32 The claimant could not provide persuasive evidence to distinguish his risk from that faced by others from or in El Salvador. [25] Therefore, I find the claimant is not a person in need of protection and the claim under section 97 of the IRPA fails. CONCLUSION [26] The claimant does not have a well-founded fear since there is not a serious possibility of persecution, and he would not be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should he return to El Salvador. Accordingly, the claimant is neither a Convention refugee nor a person in need of protection. [27] The claim is rejected. (signed) "B. Volpentesta" B. Volpentesta September 10, 2010 Date REFUGEE PROTECTION DIVISION / VICTIM OF CRIMINALITY / CRIMINAL ORGANIZATION / FORCED RECRUITMENT / GENERAL VIOLENCE / GENERALIZED RISK / MALE / NEGATIVE / EL SALVADOR 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit C-1, copy if identity card and birth certificate. 3 Exhibit C-1. 4 Exhibit R/A-2, IMM5474, question 3. 5 Exhibit C-2, letter from National Civil Police. 6 Exhibit C-2, letter from Municipal City Hall. 7 Marincas, Dan v. M.E.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.); Xheko, Aida Siri v. M.C.I. (F.C.T.D., no. IMM-4281-97), Gibson, August 28, 1998. 8 Rivera, Omar Martin Farro v. M.C.I. (F.C.T.D., no. IMM-572-98), Tremblay-Lamer, February 22, 1999. 9 Bacchus, Amit v. M.C.I. (F.C., no. IMM-4679-03), Mosley, June 8, 2004, 2004 FC 821. 10 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 11 Exhibit R/A-1, item 7.7, "Issue Paper: Youth Gang Organizations in El Salvador." Department of State. Bureau of Democracy, Human Rights and Labor. Office of Asia and Western Hemisphere Affairs. (U.S. Committee for Refugees and Immigrants - USCRI). United States (US). June 2007. 12 Exhibit R/A-1, item 7.2, Response to Information Request SLV101080.FE, IRB, 7 April 2006. 13 Exhibit R/A-1, item 7.2, Response to Information Request SLV101080.FE, IRB, 7 April 2006, and item 7.7, "Issue Paper: Youth Gang Organizations in El Salvador." Department of State. Bureau of Democracy, Human Rights and Labor. Office of Asia and Western Hemisphere Affairs. (U.S. Committee for Refugees and Immigrants - USCRI). United States (US). June 2007. 14 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 729-733. 15 Jarada, Alaa v. M.C.I. (F.C., no. IMM-4638-04), de Montigny, March 24, 2005, 2005 FC 409; Prophète, Ralph v. M.C.I. (F.C.A., no. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. 16 Ahmad, Hasib v. M.C.I. (F.C., no. IMM-9188-03) Rouleau, June 4, 2004, 2004 FC 808. 17 Vickram, Safraz v. M.C.I. (F.C., no. IMM-3632-06), de Montigny, April 30, 2007, 2007 FC 457. 18 Alshynetesky, Leyka v. M.C.I. (F.C., no. IMM-8131-03), Pinard, October 1, 2004, 2004 FC 1322. 19 Sorokin, Yuri v. M.C.I. (F.C., no. IMM-5656-04), Simpson, March 21, 2006, 2006 FC 368. 20 M.C.I. v. Richards, Gladstone (F.C., no. IMM-7310-03), Mosley, September 7, 2004, 2004 FC 1218. 21 Prophète, Ralph v. M.C.I. (F.C., no. IMM-3077-07), Tremblay-Lamer, March 12, 2008, 2008 FC 331; Prophète, Ralph v. M.C.I. (F.C.A., no. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31; Acosta, Dunis Joel Acosta v. M.C.I. (F.C., no. IMM-3731-08), Gautheir, March 2, 2009, FC 213. 22 Marcelin Gabriel, Marie Nerland v. M.C.I. (F.C.,no. IMM-1816-09), Pinard, November 19, 2009, 2009 FC 1170. 23 Osorio, Henry Mauricio Gil v. M.C.I. (F.C., no. IMM-585-05), Snider, October 27, 2005, 2005 FC 1459. 24 Osorio, Henry Mauricio Gil v. M.C.I. (F.C., no. IMM-585-05), Snider, October 27, 2005, 2005 FC 1459; Marcelin Gabriel, Marie Nerland v. M.C.I. (F.C.,no. IMM-1816-09), Pinard, November 19, 2009, 2009 FC 1170. 25 Vickram, Safraz v. M.C.I. (F.C., no. IMM-3632-06), de Montigny, April 30, 2007, 2007 FC 457; Prophète, Ralph v. M.C.I. (F.C., no. IMM-3077-07), Tremblay-Lamer, March 12, 2008, 2008 FC 331; Prophète, Ralph v. M.C.I. (F.C.A., no. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31; Innocent, Philomena v. M.C.I. (F.C., No. IMM-541-09), Mainville, October 8, 2009, 2009 FC1019. 26 Acosta, Dunis Joel Acosta v. M.C.I. (F.C., no. IMM-3731-08), Gautheir, March 2, 2009, FC 213; Ventura De Parada, Ana Margarita v. M.C.I. (F.C., no. IMM-1021-09), Zinn, August 27, 2009, 2009 FC 845; Rodriguez Perez, Henry Sotero v. M.C.I. (F.C., no. IMM-646-09), Kelen, October 14, 2009, 2009 FC 1029. 27 Exhibit R/A-1, NDP, item 2.1, United States (US). 11 March 2010. Department of State. "El Salvador." Country Reports on Human Rights Practices for 2009. 28 Exhibit R/A-1, NDP, item 2.3. Beatriz Manz. Central America (Guatemala, El Salvador, Honduras, Nicaragua): Patterns of Human Rights Violations. Writenet. August 2008. 29 Exhibit R/A-1, NDP, item 7.6. Response to Information Request (RIR) SLV103166.FE. 15 July 2009. 30 Exhibit R/A-1, NDP, item 7.7. "Issue Paper: Youth Gang Organizations in El Salvador." Department of State. Bureau of Democracy, Human Rights and Labor. Office of Asia and Western Hemisphere Affairs. (U.S. Committee for Refugees and Immigrants - USCRI). United States (US). June 2007. 31 Martinez Pineda, Jose Mauricio v. M.C.I. (F.C., no IMM-4845-06, de Montigny, April 4, 2007, 2007 FC 365. 32 Acosta, Dunis Joel v. M.C.I. (F.C., no. IMM-3731-08), Gauthier, March 2, 2009, 2009 F.C. 213. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA8-19899 RPD File No. :TA8-19899