VB4-01357

RPD File No. / N° de dossier de la SPR : VB4-01357 VB4-01361/VB4-01360 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile XXXX XXXX XX XX XXXX XXXX XXXX Date(s) of Hearing November 18, 2014 Date(s) de l'audience Place of Hearing Vancouver, BC Lieu de l'audience Date of Decision November 18, 2014 Date de la décision Panel L.R. Devries Tribunal Counsel for the Claimant(s) Daniel McLeod Barrister and Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated Representative(s) XXXX XXXX XXXX XXXXfor XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Garett Toporowski By Documents Only Conseil du (de la) ministre REASONS FOR DECISION DECISION These are the reasons in regard to the refugee claims that have been made by XXXX XXXX XXXX XXXX and the minor claimants, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX and they are citizens of Honduras and claiming refugee protection today pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the "Act").1 The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is a serious possibility that the claimants would be persecuted or that there are substantial grounds to believe that they would be tortured or at risk of losing their lives or being subjected to cruel and unusual treatment or punishment if they returned to Honduras. This also means that it must not be possible for them to get protection from this persecution or risk from Honduran authorities and, further, that there is no other place within the country of Honduras where they could live safely and where it would be reasonable in all the known circumstances for them to do so. My determination is that you are persons in need of protection and for the following reasons. Your allegations are contained in your Basis of Claim forms and they were supplemented by the testimony of the principal claimant today. In brief, the principal claimant alleges that in XXXX 2013 while visiting family in XXXX, near San Pedro Sula she witnessed a shooting and she was threatened by an armed man who had participated in that crime. The claimant alleges she recognized him owing to having lived in the same neighbourhood some years ago, although she doesn't know his name. He threatened that he would kill you, and you promised that you would not speak about it. Three days later he called you and threatened you again saying that he knew where you lived and he named the school where your children were attending and suggested that they might disappear. A week later he called again and demanded money, the equivalent of about a hundred Canadian dollars. Your husband contacted your father in Canada and he came to Honduras. You received another threatening call in his presence and he perceived the situation to be serious. You moved to his house in the same town and subsequently he assisted you financially in leaving Honduras and travelling to Canada and you have testified that there wasn't enough money for your husband to travel with you and he remains in Honduras at this time. You fear a risk to your life or a risk of cruel and unusual treatment or punishment at the hands of criminal gang members because you refused their extortion demands because you were a witness to a crime and because your husband reported the threats to police after you departed. In regards to preliminary elements, the Minister is intervening in this case by documents only. The principal claimant confirmed at the outset of the hearing that she would act as designated representative for the two minor claimants and that she understood her responsibilities in this regard. In regards to identity, as I stated at the outset of the hearing, your identity as nationals of Honduras is satisfactorily established by the documentary evidence on file, namely, your passports. In regards to a nexus, counsel did not argue and I find that there is no nexus between the risks identified by the applicants and their race, religion, nationality, political opinion or membership in a particular social group as defined in the Refugee Convention2 and so this assessment has been conducted under section 97 of the Immigration and Refugee Protection Act which employs the test of balance of probabilities in assessing forward looking risks and personalized risk to life, risk of torture by or with the consent of the state or a risk of cruel and unusual treatment or punishment. In regards to credibility, when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness and this is found in case law called Maldonado.3 The Minister elected to proceed by documents only. He submitted a copy of a document indicating that you were scheduled for a hearing to establish credible fear in regard to a request for asylum in the U.S. and he submitted a document that you declined to be interviewed by CBSA officers after submitting your claim. The panel is unable to draw any negative inferences in regard to your credibility or the credibility of your claims from these documents. In my view you were able to offer plausible testimony in regard to areas of concern to the panel. You were able to explain plausibly the circumstances of your visit to a lawyer and to allay my concerns as to why this was not mentioned in your narrative. I found your evidence was pretty consistent today with your Basis of Claim (BOC) narrative. I have observed your demeanour and I found that you avoided opportunities to embellish and you were forthright even in making statements that were not necessarily y in your favour. For example, you testified that you were not certain that the persons you witnessed shooting someone, who threatened and later extorted you were members of a gang. You also testified that even before these events occurred your father had spoken of finding a way to get your family to Canada where he was living a peaceful life. These concessions, in my view, hold the ring of truth and persuade me, along with my observation of your demeanour, that you are a reliable witness and, therefore, I accept that you did witness a shooting and that you have since been targeted by an individual whom the preponderance of the evidence would suggest is a criminal or gang member. In the National Documentation Package at 7.5 there is evidence indicating that Honduras is assessed as being the most violent country in Central America and one of the most violent in the world and there is evidence in your submissions at Exhibit 6 to illustrate this amply. This same source notes that gangs use violence to impose local order and street level politics and this is consistent with your story. There is evidence here that gang members have modified both their appearance and their strategies in order to reduce their visibility on the streets. In spite of covering their tattoos, dressing casually and changing their movement the gangs continue to exercise strong influence over neighbourhoods but have evolved to become more subtle in their activities. This evidence supports your testimony that gang affiliation is not necessarily readily apparent to the eye but, rather, has to be inferred from the actions of individuals. There is evidence and submissions from your counsel, Exhibit 8, page 22, that gangs can locate individuals in urban as well as in rural areas and at page 7 of the same exhibit and, in fact, in the same document which is the UNHCR Guidance Notes, there is some information about the profile of persons typically targeted by organized gangs. As noted by your counsel, this can include business owners and other people unable or unwilling to meet extortion or other unlawful demands for money or services by gangs and witnesses of crimes committed by gangs, or individuals who reported such incidents to the authorities and so on three separate measures, having found your testimony to be credible, you fit the profile of a person who has been targeted by organized criminal gangs. There is evidence and submissions specifically at tabs 12 and 15 of Exhibit 6 which depict quite vividly the security situation in Honduras generally and in XXXX in particular. This area is noted to be run by gangs who follow laws laid down by gangs and the residents there, quote, know better than to call police, unquote, and so all of this supports your risk allegations. In light of the circumstances you have credibly described, the panel finds that you and your children do have the profile of persons who face, on a balance of probabilities, a risk to your lives or of cruel and unusual treatment or punishment owing to the retributive nature of gangs and the fact that you have been personally targeted to this time. Having made this finding I have gone on to consider the remaining two issues as to whether state protection or internal flight alternatives might be reasonably available to you. States are presumed to be capable of protecting their own nationals absent clear and convincing evidence to the contrary. In your submissions at Exhibit 6, page 27, the U.S. Department of State recently advised that the security situation has seriously deteriorated in Honduras. Apprehension and conviction of criminals remains low. The panel takes particular note of the observation of a foreign correspondent in one of these items who states that it is not hard to become a fatality in Honduras. There is evidence in the NDP at 7.2 which indicates that an anti-extortion task force has been created in the Ministry of the Interior that in 2012 that office received 580 complaints of extortion up from just 14 complaints in 2010 and 138 in 2011 and this trend is attributed to greater awareness of police reporting hotlines and a wiretapping law passed in December 2011 which allows law enforcement to monitor phone calls and so on the face of it it would appear that there are viable avenues of state protection.4 However, the panel has also considered evidence at 7.7 of the National Documentation Package (NDP) which addresses the state response to gang related crime and here it states that, per U.S. DOS Country Reports (2010) the judiciary was poorly funded and staffed, inadequately equipped, often ineffective and subject to patronage, corruption and political influence. Freedom House is cited here indicating that police officers have been involved in extra-judicial killings, arbitrary arrests and illegal searches, as well as criminal activity and it notes here that the army has also been reported to be involved with drug trafficking and related criminal conflicts. There is evidence here that in October 2011, 176 police officers were arrested for alleged links to organized crime. Thirty-two others were suspended the next month for similar reasons. In November of 2011, the National Autonomous University of Honduras announced that a study it had carried out concluded that the National Police is, in fact, quote, the most dangerous criminal organization, unquote, in the country and another source reported that there were entire police units which consisted of organized gangs of drug traffickers, hit men, car thieves, kidnappers and collectors of the so-called war tax. There is evidence in this source of anti-gang laws, laws that permit the seizure of assets belonging to organized crime, new taxes to raise funds to combat gangs and drug trafficking, the administration of polygraph tests to identify officers involved in crime or drug trafficking and even the use of the army to supplement the police in Tegucigalpa and San Pedro Sula and a plan to introduce legislation to grant amnesty to gang members willing to reintegrate into society. Despite these efforts, in the panel's view, a reading of the country documents indicates that gang crime and violence remain largely unabated in Honduras and that the state remains largely unable to offer protection that is effective at the operational level to citizens such as yourself who have been threatened by gangs and, therefore, I find that state protection would not be forthcoming in your case. I have also considered whether a safe and reasonable internal flight alternative exists for you. You have testified that you don't know what the criminal affiliation or organizational affiliation of your agents of harm is. The sources indicate that both Mara Salvatrucha and Mara 18 operate mostly in urban areas of Honduras, particularly in the urban areas of Tegucigalpa, including the district of Comayaguela and the city and suburbs of San Pedro Sula and it mentions specific districts including XXXX. There is evidence that the Maras tend to take root in marginalized neighbourhoods or slums in industrial areas that host the Maquilas. Another source points out that these gangs are also present in rural areas and even dominate in many neighbourhoods where the government is weak and not able to provide appropriate protection. As previously noted at paragraph 54 of the UNHCR Guidance Notes, attempts to relocate are not always successful as gangs are able to locate individuals in both urban and rural areas and your counsel noted that there is objective evidence that women face particular vulnerabilities and it's reasonable to assume that children would as well.5 I have considered your counsel's submission in regards to the difficulty of accessing another area of Honduras given the documentary evidence which indicates that interurban highways are frequently targeted for carjackings and robberies and there is a great deal of documentary evidence in regard to targeted attacks on buses and bus drivers. I have considered your education which is somewhat limited and your employment experience which is also relatively limited and in particular I have considered your minor children and I find that there is no internal flight alternative for you in Honduras and that the proposition of an IFA fails on the first prong. As noted by counsel, the U.S. State Department has noted that crime is a serious problem everywhere, that it is, in fact, critically high and that even the police engage in criminal activity. Given your profile as a person who has witnessed a crime, reported a crime, is married to an individual who reported a crime in your name and the fact that you have also been unable to meet extortion demands from the criminals, I find that there is on a balance of probabilities no safe location for you in Honduras. Having considered all the evidence before me I conclude that on a balance of probabilities you and each of the minor claimants would personally face a risk to life or a risk of cruel and unusual treatment or punishment in Honduras and, accordingly, I have found you today to be persons in need of protection. That's the conclusion of my reasons. (signed) "L. R. Devries" L. R. Devries November 18, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137. 3 Maldonado v. M.E.I., [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 4 Exhibit 4, National Documentation Package (NDP), Honduras, March 14, 2014, Item 7.2. 5 Exhibit 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD 29.1 (2014/02/18) ) RPD File No. / N° de dossier de la SPR : VB4-01357 VB4-01361/VB4-01360