VB8-06548

RAD File / Dossier de la SAR : VB8-06548 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver,BC Appel instruit / entendu à Date of decision September 3, 2019 Date de la décision Panel Paula Faber Tribunal Counsel for the person who is the subject of the appeal Emma Andrews Barrister & Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety (Appellant) appeal an oral decision of the Refugee Protection Division (RPD) made on October 18, 2018, allowing the refugee protection claim of XXXX XXXX XXXX XXXX Respondent), a citizen of El Salvador. [2] The Appellant and the Respondent have not submitted new evidence and are relying on the documents filed as exhibits before the RPD as well as the other documents comprising the RPD and Appellant's records. [3] The Appellant argues that the RPD erred in concluding that the Respondent has a personalized risk of persecution. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute its own finding that the Respondent is not Convention1 Refugee or person in need of protection. [4] The Respondent argues that the RPD did not err and requests that the Minister's appeal be dismissed and that the positive decision of the RPD be confirmed. [5] The determinative issue is whether the RPD erred in finding that that Respondent faces a personalized risk of harm if he is to return to El Salvador. I find that the RPD has not erred. [6] For the reasons that follow, the decision of the RPD is confirmed pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).2 [7] I find that the Respondent, XXXX XXXX XXXX XXXX, is a person in need of protection. BACKGROUND [8] The Respondent's allegations are detailed in his Basis of Claim form narrative.3 He was born in El Salvador on XXXX XXXX, 1984. He has a grade XXXX level of education. [9] The Respondent alleges that he faces a personalized risk of harm if he is to return to El Salvador. He describes having been a victim of gang violence in El Salvador beginning in 2002 when he refused to join the Mara, and continuing with gang extortion when he and his wife opened a street vending clothing business. [10] As a result of the gang extortion and threats to his life if he refused to pay, the Respondent left El Salvador for the United States in XXXX 2014. He was detained by US border authorities and deported back to El Salvador in XXXX 2014. The Respondent could not afford to pay the extortion, and did not work for fear of being confronted by the Mara. He left El Salvador again in XXXX 2014. This time he was detained by Mexican authorities and deported to El Salvador in XXXX 2014. [11] The Respondent explained that he unsuccessfully tried to find another job, and was essentially forced back into the clothing business with his common-law wife. He describes working very hard at the business in order to be able to make enough money to cover the extortion as well as business and living expenses. [12] Toward the end of 2015, the Respondent was unable to make the increasing payments to the Mara. He sold some equipment and moved to his hometown of XXXX in XXXX 2016. [13] There he and his common-law wife operated their business, but in XXXX 2016, a gang member held a gun to his head and demanded that he pay $XXXX XXXX XXXX in extortion, or have one of his family members killed. [14] The Respondent describes being traumatized by this incident and being unable to afford the amount of money being demanded. He sold some belongings and borrowed money from his sister and left the country for the United States for the third time in XXXX 2016. [15] He remained in the US for a XXXX months, but was afraid of being deported back to the El Salvador, so he entered Canada irregularly In XXXX 2017. [16] He made his claim for refugee protection after he was arrested by Canada Border Services Agency Officers in August 2017. [17] The hearing before the RPD took place on October 18, 2018. In an oral decision rendered the same day, the RPD determined that the Respondent was a person in need of protection and accepted his claim. ROLE OF THE RAD [18] The RAD is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. Deference to credibility assessment [19] I have conducted an independent assessment of the evidence and arguments, which includes a review of a transcript of the RPD hearing. [20] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it, therefore the standard of correctness applies. The RPD does not state that there were any difficulties with the Appellant's testimony where the RPD would have been in a better position than the RAD to judge it. In fact, the RPD did not outline any credibility concerns in its decision, finding the Respondent to be a credible witness. ANALYSIS Person In Need Of Protection [21] The Minister's appeal relates solely to the applicability of Subsection 97(1)(b)(ii)4 of the Act to the Respondent's claim. In order for the Respondent to meet the requirements of this subsection, it must be established that, 1) the risk faced by the Respondent is present in every part of El Salvador, and 2) the risk not faced generally by other individuals in or from El Salvador. [22] The Appellant has argued the RPD failed to assess whether the risk of extortion is one that is widespread and therefore faced by a significant subset of the population. The Appellant argues that the risk of extortion is one that is faced generally by business owners in El Salvador. [23] While the RPD may not have commented directly on whether or not extortion is widespread, the RPD does comment in its decision on how the Respondent credibly described having been a business man who was extorted by criminal gangs. He also testified about other people who were killed for missing extortion payments to the Mara, and how he had received threats of death if he did not pay what was owed. [24] In its decision, the RPD did address the difficult situation in the country generally, referencing the high crime and murder rate, as well as the serious consequences of gang-related activity, including a significant number of displaced people because of gang violence. The Respondent also provided extensive testimony on having been extorted and the consequences of not paying what was demanded. [25] The case law has been clear that if the risk faced by a person stems from a general risk in that country, the person is not protected under section 97(1)(b). Refugee protection is limited to those who face a specific risk not faced generally by others in the country. [26] Even though the RPD may not have explicitly stated this in its reasons, based on my own independent assessment of the evidence, I find that the risk of extortion is widespread and faced by a significant subset of the population. While it is true that the risk of extortion may be one that is faced generally by business owners in the country, I find that the RPD has clearly outlined how the risk to life as a result of extortion, faced by the Respondent is individualized in the specific circumstances of this case, and is not generally faced by a subset of the population. [27] In my assessment, I agree with the RPD, and find that the evidence establishes on a balance of probabilities that the Respondent faces a personal risk to his life if he is to return to El Salvador. Personal Risk [28] Like many, the Respondent as a business man was specifically targeted for extortion by the Mara 18 street gang. I find that his case is distinguished from a generalized risk faced by business owners for the following reasons:5 a) The Mara have made it clear that the Respondent must pay extortion; b) He has been directly and personally threatened and the lives of his family members have been threatened if he fails to pay; c) The Respondent knows of others who have been killed for not paying the Mara; d) The Mara demanded that he pay $XXXX which he could not afford, he fled the country as a result of their increasing demands; e) The Mara have confronted the Respondent's wife since his departure asking about him; f) The Respondent has defied the Mara's demands by leaving the country and therefore not paying them what is owed; g) The Respondent's wife has made an arrangement with the Mara to pay them at a reduced rate which she can currently only afford because he sends money to her; h) The requirement for the Respondent to pay the Mara has not stopped and the amount owed will increase if he is to return given that the Mara negotiated a temporary reduction in payments with his wife because of his absence; i) The Respondent has been threatened with death if he fails to pay the extortion being demanded by the Mara; and j) The Mara have personally targeted him in different parts of the country. Country Conditions [29] The country conditions document within the National Documentation Package (NDP)6 describe gang violence in El Salvador as being widespread and government corruption as pervasive. There are also references to El Salvador being the country with the highest homicide rate in the world. [30] I agree with the Appellant that the country documents suggest that many in the country, including business owners, face extortion and threats by gangs, however, I find that despite the fact that a large contingent of the population may be targeted, the risk for the Appellant is personal for the reasons already outlined. [31] Alongside homicides, forced disappearances, kidnappings, and widespread forms of violence against women, a range of other types of violent crimes are prevalent in El Salvador. Many of these are less easily documented than homicides and are known to be underreported, because victims do not report these crimes to the police for fear of retribution and due to a lack of confidence in the authorities. Extortion, usually by gangs, is a particularly prevalent example of these other forms of violent crime. Indeed, despite being the smallest country in Central America, the population of El Salvador is reported to pay the highest amount of extortion money, estimated conservatively at around US$400 million per year, and it is reported at those who do not pay are commonly killed or see their businesses burned down as a reprisal. [32] Persons who resist the authority of the local gang or who even just inadvertently cross it, or who collaborate with the security forces or with rival gangs, are reportedly subjected to swift and brutal retaliation from the gang. Not only are such persons killed by the gangs but their family members are often targeted as well. [33] Extortion is reportedly the lifeblood of most local gangs in El Salvador and the refusal to pay extortion demands is usually construed by gang members as a serious act of resistance to the authority of the gang itself. Individuals who refuse to pay extortion demands - or who delay in meeting their 'quotas' because they are unable to pay - are reportedly subjected to threats and violence against them, as well as against their employees, business partners and family members. The threats and violence reportedly swiftly escalate with any continuing delay or refusal to pay, with persons in these circumstances reportedly commonly being killed by the gangs. Persons found by the gangs have reported extortion demands to the authorities are also reportedly subjected to severe retribution. 7 Diverging Authorities [34] The Appellant relies on several legal authorities to support the argument that if the risk to the Respondent's life is a risk faced generally by others in Honduras, he is not a person in need of protection. [35] For example, the court has said that a subgroup of persons could be found sufficiently large as to render the risk they face widespread or prevalent in their home country, and therefore general within the meaning of paragraph 97(1)(b)(ii).8 [36] However, there are other legal authorities where the court has reached different conclusions on similar sets of facts and where the court has confirmed that risk stops from being generalized if the evidence shows that the Respondent was targeted to an extent beyond that experience by the population as a whole, or subgroup of the population.9 [37] The case law on generalized risk has evolved quite significantly to find a particularized risk in broader situations than previous jurisprudence relied upon by the Appellant. [38] In this case, the Respondent has been the target of the Mara and has defied them. His wife continues to be extorted because of his failure to pay so the risk to his life continues. I therefore find that the risk he faces if he is to return to El Salvador is one that is personal and not a risk that is faced generally by the population as a whole. No State Protection or Internal Flight Alternative [39] In its reasons, the RPD found that state protection would not be reasonably forthcoming in this particular case. [40] I have made my own assessment of the evidence, I agree with the RPD. Corroborative evidence from the country conditions documents in the NDP support that the police and judiciary in El Salvador are largely ineffective due to the presence of corruption within those institutions. [41] The objective documents also describes how efforts to combat gangs have not been effective because of high levels of official corruption, impunity and involvement of police agents in criminal activities.10 [42] I find that there is sufficient clear and convincing evidence that state protection would not be reasonably forthcoming in this case. [43] I concur with the RPD's finding that there is no Internal Flight Alternative (IFA) available to the Respondent in El Salvador and that he faces a risk throughout the country. The Respondent moved twice because of problems with the gangs in the country. There are also references within the country documents noting that gang-based violence is present throughout the country.11 [44] In my independent assessment of the evidence, I find that the Respondent will face a personal risk to his life throughout the country and I therefore find that there is no viable IFA in El Salvador available to him. CONCLUSION [45] Having considered all of the evidence and argument, the RAD dismisses the appeal and confirms the decision of the RPD that the Respondent is a person in need of protection pursuant to section 111(1)(a)12 of the Immigration and Refugee Protection Act (IRPA). (signed) "Paula Faber" Paula Faber September 3, 2019 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Exhibit RPD-1 RPD Record, Basis of Claim form narrative, pp 20-22. 4 Immigration and Refugee Protection Act S.C. 2001, c. 27.s 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally 5 Exhibit RPD-1 RPD Record Basis of Claim form and Testimony pgs 8-20 6 Exhibit RPD-1 RPD Record pg 83 7 Exhibit RPD-1 RPD Record, NDP (September 28, 2018) item 1.5. 8 Paz Guifarro v. Canada (Citizenship and Immigration), 2011 FC 182. 9 Pineda Cabrera v. Canada (Citizenship and Immigration), 2017 FC 23. 10 Exhibit RPD-1 NDP, items 2.1, 7.4, 7.6, 7.9. 11 Exhibit RPD-1 RPD record NDP item 7.13, 7.2. 12 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VB8-06548 RAD.25.02 (April 04, 2019) Disponible en français 11 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français