VB8-07599

RAD File / Dossier de la SAR : VB8-07599 VB8-07600 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 25, 2020 Date de la décision Panel Desiree Pachkowski Tribunal Counsel for the persons who are the subject of the appeal Robert J Kincaid Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal for XXXX XXXX XXXX XXXX (Appellant). [2] I dismiss this appeal for XXXX XXXX (Associate Appellant). [3] The Appellant is a citizen of Honduras. [4] The Appellant fears that she will be killed by Mara Salvatrucha (MS-13) because her ex-husband refused to comply with their demands for additional payment after the gang kidnapped and released her in 2007. [5] The Appellant's ex-husband (XXXX) wrote a letter to the Appellant's Counsel and Canadian immigration authorities raising issues about the Appellant's claim. The Minister intervened at the Refugee Protection Division (RPD) as a result. After hearing testimony from the Appellant and XXXX, the RPD decided that the Appellant was credible. However, the RPD found that she had a viable Internal Flight Alternative in Choluteca and Pimienta Cortes. [6] The Appellant's Counsel argues that the RPD erred when it found an Internal Flight Alternative (IFA). [7] The Minister also intervened before the Refugee Appeal Division (RAD). The Minister maintains that the RPD's IFA analysis is correct. The Minister made additional submissions about the Appellant's credibility, subjective fear, objective basis of the claim, and generalized risk. The Appellant's Counsel responded to the Minister's submissions, maintaining that the Appellant is credible and does not have a viable IFA. I considered these responses in my analysis. [8] After carefully considering all the evidence and arguments before me, I find that the RPD erred in its decision about the Appellant. The RPD failed to apply the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. When I applied the guidelines, I found that the Appellant has a nexus to the Convention. The Appellant also faces a risk to her life because of her interactions with the MS-13. [9] The Associate Appellant is a citizen of Honduras and the United States of America. The RPD found the Associate Appellant was not a Convention Refugee or a person in need of protection. The Appellants have not contested this finding before the Refugee Appeal Division (RAD). I agree with the RPD's assessment and find it without error. DECISION [10] The appeal is allowed in part. I substitute my own decision that the Appellant is a Convention refugee and a person in need of protection. [11] I dismiss the Associate Appellant's appeal. The RPD was correct in finding that the Associate Appellant is neither a Convention refugee nor a person in need of protection. ORAL HEARING [12] The Appellant did not request an oral hearing. I can hold a hearing when there is new evidence that raises a serious, material credibility issue about the Appellant that would require further testimony. Since the Appellant did not submit new evidence, I did not hold an oral hearing. BACKGROUND [13] Members of the MS-13 gang extorted the Appellant's ex-husband, XXXX. They demanded that he pay them XXXX XXXX XXXX lempiras. XXXX did not pay the gang. Gang members kidnapped the Appellant. They beat her until she lost consciousness. The Appellant bled heavily because she was three months pregnant. The gang members eventually released her after discussing her heavy bleeding. The Appellant walked for two hours before she found help. The Appellant lost her baby because of the assault. [14] XXXX paid the extortion, but later revealed that he had negotiated to pay the MS-13 half of what they asked. They called him days later asking for the rest of the money, but he refused to pay. Angry that XXXX refused to pay the fee to ensure her safety, the Appellant left her husband and stayed with her brother for a short time before fleeing to the United States of America. [15] The Appellant was arrested and deported shortly after she arrived. She returned to the United States of America (USA) and lived there without status until 2017. The Appellant was afraid to make a claim for asylum because she thought she would be deported again. [16] The Appellant fled to Canada when the USA began to change its immigration policies in 2017. She made a claim for refugee protection two days after she arrived in Canada. [17] XXXX initially helped the Appellant when she arrived in Canada. However, he later wrote to immigration authorities claiming that the Appellant was never kidnapped. The Minister intervened at the Refugee Protection Division as a result. XXXX was called to testify as a witness. The RPD did not find XXXX's testimony about the kidnapping incident credible. The RPD accepted that the Appellant was kidnapped. ANALYSIS [18] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [19] In assessing this appeal, I note significant similarities to a case that was recently before another RAD colleague.2 In that case, the Appellant was also a single woman who faced gang-related threats, but also expressed gender-related fears. The RAD found that the Appellant had a nexus to the Convention based on her gender and granted her refugee protection. Since the facts are similar to the case before me, I relied on this case for general guidance in the adjudication of the Appellant's claim. [20] The Minister argues that the RPD erred when it found the Appellant credible because there are discrepancies between the Appellant's testimony and her documentary evidence. [21] The Appellant's Counsel argues that the RAD owes deference to the RPD's credibility findings. [22] The RPD did not have a meaningful advantage in the assessment of the credibility issues because they stem from alleged inconsistencies between documents on the record. The Minister did not question the authenticity of the documents in such a way that an assessment of the original documents would have given the RPD any advantage. Moreover, the RAD does not owe deference to the RPD's findings. I will address the alleged inconsistencies in my independent review of the record. The Appellant is credible [23] The RPD found the Appellant credible. The Minister disagrees. I agree with the RPD and find the Appellant credible for the following reasons. XXXX's testimony was not credible [24] The Minister argues that XXXX is more credible than the Appellant because he did not waver in his claim that the kidnapping and ransom story is false. I disagree. [25] The RPD did not find parts of XXXX's testimony trustworthy. Specifically, the RPD did not find that he was credible about his role in assisting the Appellant with her refugee claim, nor his motivation for informing immigration authorities and the Appellant's Counsel that parts of the Appellant's allegations were false. The RPD accepted that the kidnapping incident occurred as the Appellant described.3 [26] I agree with the RPD. [27] The Appellant's ex-husband was living in Canada. Documentary evidence on the record establishes that XXXX wanted the Appellant and her children to live in Canada as a family and assisted her with her claim.4 Documentary evidence also establishes that XXXX eventually became angry with the Appellant before he wrote to immigration authorities.5 [28] XXXX was evasive when the Appellant's Counsel asked if he had communication with the Appellant before she came to Canada. First, he stated that he did not recall any communication.6 Next, he said that he only communicated with the Appellant's brother.7 The Appellant's Counsel presented documentary evidence of communication between XXXX and the Appellant. XXXX stated that he did not recall the email communication but confirmed that it was sent from his email address.8 He admitted to sending the Appellant angry messages from his mobile phone.9 [29] When asked why he did not answer in the affirmative when asked if he had communicated with the Appellant, he repeatedly stated that he did not remember and had memory problems.10 XXXX eventually admitted that he overreacted in the angry text messages he sent to the Appellant.11 XXXX attempted to rely on notes during his testimony on two occasions.12 [30] XXXX did not testify in a straightforward manner. Some of his responses were evasive or internally inconsistent, as described above. He was reluctant to testify about certain issues and attempted to reference his notes. This behaviour harms his credibility. The RPD was correct to doubt the credibility of XXXX's testimony. XXXX was motivated to hurt the Appellant because he was angry with her [31] The Minister argues that the Appellant did not provide a reasonable explanation for XXXX's motivation for denying the kidnapping and ransom event. The Minister submits that XXXX's actions seem inconsistent with someone who would want to hurt the Appellant because he helped her come to Canada from the United States and drove her to the immigration office. The Minster submits that XXXX seems to have moved on because he is re-married. The Minister submits that XXXX stated that he was motivated to come forward because he did not want to be linked to a story that was untrue if immigration authorities did an investigation. [32] I disagree with the Minister's submissions. The Appellant explained that XXXX wanted to hurt her because he was angry with her for rejecting him and because her daughter did not want to see him. The Minister is correct to observe that XXXX was initially helpful to the Appellant. However, there is documentary evidence to establish the Appellant's allegations that he became angry with the Appellant. [33] The Appellant explained that when XXXX drove her to one of her immigration appointments, he touched her inappropriately, or "slapped [her] [...] on [her] behind."13 The Appellant expressed that she did not want a romantic relationship with XXXX, which she believes made him angry. [34] After this incident, the Appellant described a second incident where XXXX upset her daughter because he would not provide her with menstrual pads. The Appellant's daughter expressed that she did not want to return to visit her father following this incident. The Appellant expressed this to XXXX, which angered him.14 [35] The RPD did not question the credibility of the Appellant's statements about her interactions with XXXX when she was in Canada. I have no reason to doubt the credibility of this statement. The Appellant's testimony is consistent with the documentary evidence as well as with XXXX's testimony. [36] There is documentary evidence of XXXX's initially amenable behaviour, which suddenly turned hostile. XXXX confirmed that the friendly emails on the record were sent from his email address, although he claimed that he did not remember them. In one of these emails he wrote that he, the Appellant, and her children would be "a Canadian family returning to Canada".15 XXXX also admitted that he became angry with the Appellant, and admitted to sending the angry text messages on the record. He testified that he overreacted. When asked why he was angry, he said that he believed it was because he wanted to see his daughter and the Appellant would not let him.16 [37] XXXX testified that he was angry with the Appellant because of an incident with his daughter. This is consistent with the Appellant's testimony and establishes that he was angry with her before he wrote to immigration authorities. [38] Finally, the Minister's argument that XXXX would not be interested in the Appellant because he had already moved on and was in another relationship is without merit. It is plausible that XXXX could have been in a relationship with someone else and still have been romantically interested in the Appellant. XXXX's relationship status is not an appropriate basis to discredit the Appellant's testimony. [39] It has been credibly established through testimony and documentary evidence that XXXX was angry at the Appellant before writing to immigration authorities. The Appellant's documents do not cast doubt on her story [40] The Minister argues that there are inconsistencies between the Appellant's documentary evidence and her Basis of Claim (BOC) narrative. [41] The Appellant's Counsel argues that it is established in law that documents must be read for what they do say, rather than what they do not say. Counsel submits that the silence in case specific documents may not be grounds to reject the Appellant's testimony. Counsel argues that the Minister does not mention any authority with which it can claim to know what ought to be included in the Appellant's documents. [42] I agree with the Appellant's Counsel. My reasons are as follows. The police report is not inconsistent with the Appellant's story [43] The Minister submits that the police report does not mention that the Appellant's ex-husband was threatened or asked for money. The Minister submits that this is inconsistent with the Appellant's Basis of Claim (BOC) narrative, which indicates that the MS-13 threatened to kill XXXX if he did not give them XXXX XXXX XXXX lempiras. [44] It is true that the Police report does not mention the initial threat or extortion targeting the Appellant's ex-husband. However, this police report was issued for an incident concerning the Appellant, where she was the victim of a kidnapping. It is therefore plausible that the police report only references events that happened to the Appellant. Although it does not mention the MS-13's initial demand, it confirms that XXXX paid a ransom of XXXX XXXX XXXX lempiras. The report is consistent with the material elements of the Appellant's claim about what happened to her. It confirms that she was kidnapped and released. The police report's silence on the initial threats towards XXXX does not harm the Appellant's credibility. [45] The Minister also notes that the police report states that the Appellant was left abandoned in an empty lot two days later for her husband to pick her up. The Minister submits that the Appellant's BOC does not state that she was left abandoned two days later in an empty parking lot. [46] It is not clear whether the Minister takes issue with the omission of the time frame of two days, or the empty parking lot. In either case I do not find that these omissions harm the Appellant's credibility. [47] The BOC states that the Appellant's kidnappers had her call her husband to request ransom. Then it states "[a]fter what seemed like many hours during which I heard the men discuss my heavy bleeding, the men put a mask over my face and removed me from the room and took me to a car [emphasis added]".17 The Appellant's statement that she was with her kidnappers for many hours is not materially inconsistent with the period of two days, especially when I consider the trauma that she endured. [48] It is true that the Appellant did not state that she was abandoned in a parking lot. However, it is unclear why the Minister believes that this is a material detail. The jurisprudence is clear that BOC omissions are a valid basis to doubt a claimant's credibility when they contain material details that change a claimant's story.18 In my view, the Appellant's failure to specify whether she was left in a parking lot or elsewhere does not change her story in a material way. The medical report is not materially inconsistent with the Appellant's story [49] The Minister submits that the Appellant's BOC states that she spent five days at a medical clinic and lost her baby. The Minister submits that this is inconsistent with the Appellant's medical certificate, which states that she received medical care on XXXX XXXX, 2007, and does not mention that she was in the clinic for five days. [50] The Minister's observation is correct but microscopic and immaterial. The Appellant testified that her cousin attained the certificate on her behalf. She testified that the document was not an original document, but a summary issued by a medical school and stamped by the doctor who examined her.19 This is consistent with the results of the Minister's investigation into the document.20 Although the Minister investigated the source of the document, the Minister did not argued that the document's source is problematic. Given that the document was a summary issued from a college ten years after the Appellant's initial visit to her doctor, I accept that the summary did not specify how long the Appellant stayed in the hospital. [51] When I read the documents for what they do say rather than what they do not, I find that the documentary evidence corroborates the Appellant's claim that she was kidnapped and beaten. It corroborates her release from captivity and the loss of the baby that she was carrying. Delay is not determinative [52] The Minister submits that the Appellant lacks subjective fear because she remained in the USA for an extended period without making a claim for asylum. The RPD did not write about the Appellant's subjective fear. [53] The Appellant left XXXX shortly after he refused to pay the remainder of the kidnapping fee. She briefly stayed with her brother before fleeing to the United States of America. The Appellant was arrested and deported shortly after she arrived. The Appellant tried to make a claim for asylum and appeared before a judge. She was unrepresented and unsuccessful. The Appellant was deported shortly after her hearing. [54] The Appellant lived in hiding with her brother in Honduras for five months before leaving to the USA a second time. She lived without status for ten years, afraid to approach the authorities because of her first experience when she was deported. The Appellant fled to Canada when the USA began to change its immigration policies in 2017. She made a claim for refugee protection two days after she arrived in Canada. [55] I accept the Appellant's explanation for why she remained in the USA without status. It is plausible that a person who had been previously deported to the country from which they fled would be hesitant to approach the same authorities for protection. Moreover, I note that the Court is clear that a delay in claiming refugee status is not determinative of a claim.21 [56] Even if I did not accept the Appellant's explanation for remaining in the USA, I do not have any other credibility concerns. Delay alone is not enough for me to seriously doubt the Appellant's credibility, especially when I consider her explanation. Credibility summary [57] After considering the arguments and the evidence before me, I find that the Appellant and her allegations are credible, on a balance of probabilities. The RPD failed to apply the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution [58] The Appellant's Counsel argues that the RPD failed to consider the Appellant's profile as a woman and as a returnee to Honduras in its IFA analysis. I agree. In my view, the RPD failed to apply the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guideline) to its entire decision. [59] The RPD accepted that the Appellant's gender played a role in her abduction and assault.22 At this point, the RPD should have engaged with the Gender Guideline in its analysis of the Appellant's claim. However, the RPD did not mention the Guideline or demonstrate that it engaged with it throughout its decision. This is an error. The RPD ought to have considered the Guideline as it related to the entirety of the Appellant's claim, including on the viability of an IFA. The Appellant has a nexus to the Convention [60] When I consider the Gender Guidelines, I find that the Appellant's gender establishes a nexus to the Convention, as her gender is an innate and unchangeable characteristic that the RPD found played a role in her kidnapping and assault.23 Moreover, when I consider the intersectionality of the other elements of her profile, I find that the Appellant is a member of a unique subgroup24 of women who face a greater risk of violence or persecution in Honduras. Specifically, I note that the Appellant is a woman who a) is a single mother, b) would be a returnee to Honduras with perceived wealth, and c) has been previously targeted by the MS-13. [61] In arriving at this conclusion, I note that the Gender Guideline advises that "the fact that the particular social group consists of a large number of the female population in the country concerned is irrelevant [emphasis in document]"25 and that "a gender-related claim cannot be rejected simply because the claimant comes from a country where women face generalized oppression and violence [...]".26 When I consider the Appellant's experience of being targeted because of her gender within the context of the Guideline, I do not find that the Appellant faces a generalized risk. [62] The Appellant was kidnapped and brutally assaulted. She testified that she believed that MS-13 targeted her rather than her husband because she was a woman. She testified that MS-13 likely believed that she was the "weakest link" and that it would be easier to kidnap a woman than a man. She testified that she thought they assumed that she would not fight back because she was a woman.27 [63] The objective documentary evidence supports the Appellant's testimony. There is widespread gender-based violence against women and girls in Honduras. Honduras has one of the highest rates of violence against women in the world.28 The risk of gender-based violence is pervasive throughout society, underpinned by deeply rooted patriarchal attitudes towards women.29 The rate of femicide is so high that it is estimated that a woman is killed every 16 hours.30 Domestic and sexual violence are common and often met with impunity.31 Women are also frequently the target of gang violence, as gang members "seek to exert control over women" in general.32 Women are also at risk of violence perpetrated by state authorities.33 [64] According to the Special Rapporteur on violence against women, violence against women negatively impacts women's civil and political rights, including their "right to life, bodily integrity and equal protection under the law" and "restricts their freedom of movement".34 [65] The Inter-American Commission on Human Rights "has repeatedly stated that gender-based violence is one of the most extreme and perverse forms of discrimination, and severely undermines and nullifies the enjoyment of human rights of women."35 [66] With respect to returnees, the objective documentary evidence establishes that people returned to Honduras face an elevated risk to their lives. An Immigration and Refugee Board (IRB) information-gathering mission found that there are a significant number of returnees are killed shortly after they returned to Honduras.36 Although there are social programs available, they are limited and insufficient, benefitting only a fraction of returnees.37 When I consider the rate of gender-based violence against women in Honduras, I consider that her risk as a returnee with female children is amplified. [67] When I consider the Appellant's profile and lived experience with gender-based violence within the context of the documentary evidence, I find that she has a nexus to the Convention as a member of a particular social group: a single mother returning to Honduras with perceived wealth who has been previously targeted by the MS-13. The Appellant's testimony regarding her experience is credible. As such, I find that the Appellant has a well-founded fear of persecution. The Appellant has an objective basis for her fear [68] The Minister argues that there is no objective basis for the Appellant's fear because there is no evidence that MS-13 contacted the Appellant's ex-husband or her family to obtain the remaining ransom money. [69] The RPD relied on similar logic in its IFA analysis. The RPD accepted that the Appellant was kidnapped as she described. The RPD found that XXXX's claim that the Appellant was not kidnapped was not credible. However, the RPD accepted XXXX's testimony that he had travelled to Honduras without incident and found that this weighed favourably in its analysis of the safety of the IFA for the Appellant. This is problematic for several reasons. [70] First, it is unclear why the RPD accepted XXXX's testimony that he had not had any contact with the MS-13 since the Appellant's kidnapping-especially since the RPD did not believe XXXX's claim that the kidnapping did not happen. [71] Second, XXXX is a man of relative means compared to the Appellant. His testimony that he was part of the middle class of Honduras seems understated when I consider that his family owned several XXXX XXXX, including a XXXX XXXX, a XXXX XXXX, and XXXX XXXX.38 [72] When XXXX visits Honduras, he stays in his parents' home. He admitted that his parents live in a gated community with security guards and a security alarm system.39 The Appellant would not have the opportunity to return to this lifestyle. The only family the Appellant has in Honduras is a half-sister, with whom she does not have a relationship. The Appellant does not have the means to benefit from the security of a gated community or family support. [73] I accept that XXXX travelled back to Honduras because this is supported by the Appellant's testimony and Canada Border Services Agency travel records. However, I do not find that his claim that he had not been contacted about the Appellant is reliable or trustworthy evidence to find that the MS-13 are not still motivated to find the Appellant. [74] The Appellant was kidnapped by the MS-13 and they demanded an extortion payment. The Appellant left Honduras shortly after the kidnapping incident. The Appellant has not lived openly in Honduras since her kidnapping incident. She lived in hiding when she was deported back to Honduras from the USA. The family that could have been contacted by the MS-13 moved out of Honduras. The Appellant testified that she believed she would still be at risk in Honduras. [75] The objective documentary evidence indicates that gangs can locate their targets throughout the country and that gangs have communication networks with other cliques or clicas.40 A report from the United Nation High Commissioner for Refugees (UNHCR) indicates that gangs operate throughout Honduras because of the small size of the country and integrated networks of organized crime. The report highlights that it is important to note the operational capacity of certain organized structures, particularly the MS-13 and Barrio 18 and the larger smuggling structures, to carry out attacks in any part of Honduras, irrespective of territorial control of the specific zone.41 [76] After considering the Appellant's testimony within the context of the documentary evidence, I find that the Appellant's fear has an objective basis. The Appellant's risk is not generalized [77] The Minister argues that the Appellant does not have a unique profile that would attract any attention or risk in Honduras beyond that which is faced by the general population. [78] The RPD found that XXXX was the target of the MS-13 because of his perceived wealth. They attempted to extort him. From this viewpoint, the Appellant was merely used a means to pressure XXXX into paying his extortion. [79] However, when the Appellant was kidnapped, the requested extortion payment is better characterized as a ransom. The Appellant had face-to-face interaction with gang members. XXXX did not. She was kidnapped and assaulted. XXXX refused to pay the additional money that was demanded after she was released. [80] Since the Appellant had face-to-face interaction with the gang who did not receive their ransom or extortion payment, the Appellant faces a personal risk to her life that is not faced generally by other people living in Honduras. The Appellant does not have a safe IFA [81] There are two parts of the legal test for assessing an IFA.42 [82] First, I must be satisfied, on a balance of probabilities, that there is no serious possibility of the appellant being persecuted, and/or no danger of torture, risk to life, or risk of cruel and unusual treatment or punishment in the proposed IFA locations. [83] Second, the conditions in the IFAs must be such that it would not be unreasonable, in all the circumstances, for the appellant to seek refuge there. [84] Once an IFA has been identified, the Appellant is responsible for demonstrating that the IFA is unsafe or unreasonable. There is a serious possibility the Appellant would be persecuted in the IFA locations [85] The Appellant's membership to a social group and the risks associated with it does not change in the suggested IFA locations. After considering the objective documentary evidence as described in paragraphs 60 through 63 above, I find that the Appellant faces a serious possibility of persecution in the IFA locations because of her membership to a social group of single mothers returning to Honduras with perceived wealth who have been previously targeted by the MS-13. The Appellant faces a risk to her life in the IFA locations [86] Similar to the arguments submitted regarding objective basis and generalized risk, the Minister relies on lack of evidence that anybody looked for the Appellant after she left Honduras to demonstrate that she would not be in danger in the IFA locations. [87] As described in paragraphs 68 through 70 above, the RPD erred when it equated the Appellant's risk with XXXX's and used this as a means of comparison in the IFA analysis because of the differences between them with respect to their gender, access to security, and the nature of their interaction with the MS-13. [88] The RPD accepted that the MS-13 have the operational capacity to reach their targets in Honduras.43 It is well established that MS-13 is a violent organized crime group that exerts powerful control over many regions of Honduras.44 The gang monitors the entry of new people to a neighbourhood.45 Inadvertently crossing into an established gang territory can result in a brutal death, regardless of whether an individual is known to the gang.46 They are known to hold grudges and offer cruel and unusual punishments.47 They are known to be controlling and violent towards women.48 [89] For these reasons, on a balance of probabilities, I find that the Appellant would face a risk to her life in the proposed IFA locations and throughout Honduras. [90] There is no viable IFA for the Appellant. State protection not available [91] While states are presumed to be capable of protecting their citizens, I find that the Appellant does not have access to adequate state protection. [92] Although there are laws in place to protect women, perpetrators of gender-based violence against women typically enjoy impunity because "state institutions do not function effectively".49 The impunity rate for crimes against women is approximately 95%.50 Authorities routinely fail to investigate, prosecute, and punish violence against women.51 These systemic shortcomings are attributed to discriminatory social norms that discredit women who survive gender-based violence, reinforcing the perception that these crimes are not priorities.52 In some cases police laugh off or refuse to register complaints.53 In others, state authorities are also guilty of perpetrating violence against women.54 [93] Similarly, the UNHCR reports that the police do not have a permanent presence in the urban zones where gangs operate. When police are present, they are not seen as offering a sufficient form of protection for residents who are threatened by gangs.55 The police force is reported to be one of the most corrupt in Latin America. State security forces have reportedly been infiltrated by organized crime and collusion with gangs is common.56 [94] After considering the evidence before me, I do not find that the Appellant has adequate state protection in Honduras. CONCLUSION [95] The appeal is allowed in part. I substitute my own decision that the Appellant is a Convention refugee and a person in need of protection. [96] I dismiss the Associate Appellant's appeal. The RPD was correct in finding that the Associate Appellant is neither a Convention refugee nor a person in need of protection. (signed) Desiree Pachkowski Desiree Pachkowski November 25, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 X (Re), 2019 CanLII 124087 (CA IRB). 3 Exhibit RPD-1, RPD Record, RPD Reasons and decision at p.10 at para.30. 4 Exhibit RPD-1, RPD Record, at p. 204. 5 Ibid, at p. 206. 6 Exhibit RAD-2, RAD Record, Transcript of hearing before the RPD on November 9, 2018, at p. 20 at lines 14 - 16. 7 Ibid, at line 24. 8 Ibid, at p. 21 at lines 1 - 11. 9 Ibid, at lines 37 - 38. 10 Ibid, at p. 22. 11 Ibid, at p. 28 at lines 19 - 21. 12 Ibid, at pp. 29 - 30. 13 Exhibit RAD-1, RAD Record, Transcript of hearing before the RPD on October 4, 2018, at p. 43 at lines 8 - 9. 14 Ibid, at p. 47 at lines 13- 30. 15 Exhibit RPD-1, RPD Record, at p. 204. 16 Supra, endnote 6, at p. 28. 17 Exhibit RPD-1, RPD Record, BOC Narrative at p.22 at para. 21. 18 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924 at paras 20-26. 19 Supra, endnote 14, at pp. 32 - 33. 20 Exhibit RPD-1, RPD Record, at p.198. 21 Chen v. Canada (Citizenship and Immigration), 2019 FC 334 (CanLII), at para 24. 22 Exhibit RPD-1, RPD Record, RPD Reasons and decision, at p.11 at para. 35. 23 The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(1)(h) of the IRPA (the Gender Guidelines), part III, Application of a Statutory Ground. 24 Ibid. 25 Ibid, at para. 2. 26 Ibid, at Section B. 27 Exhibit RAD-1, Transcript of hearing before the RPD on October 4, 2018, at p. 23 at line 37, p. 24 at lines 1 - 9. 28 Exhibit RAD-3, National Documentation Package (NDP) for Honduras, 31 March 2020, at tab 5.3: ?Honduras. Left in the Dark: Violence Against Women and LGBTI Persons in Honduras and El Salvador. Latin America Working Group. Andrea Fernández Aponte. 7 March 2018, at p. 1. 29 Ibid. 30 Ibid, at tab 2.8: Honduras: Information Gathering Mission Report. Immigration and Refugee Board of Canada. February 2018. at p. 44 at section 2.2. 31 Ibid, at p. 42-23 and 46, and at tab 5.3: ?Honduras. Left in the Dark: Violence Against Women and LGBTI Persons in Honduras and El Salvador. Latin America Working Group. Andrea Fernández Aponte. 7 March 2018, at p. 3. 32 Supra, endnote 30, at p. 47 at section 2.4. 33 Ibid at p. 48 at section 2.5. 34 Supra, endnote 28, at tab 5.6: ?Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo. Addendum: Mission to Honduras. United Nations. Human Rights Council. 31 March 2015. A/HRC/29/27/Add.1., at p. 9 at paras 30-31. 35 Supra, endnote 28, at tab 2.7: Situation of Human Rights in Honduras. Inter-American Commission on Human Rights. 31 December 2015. OEA/Ser.L/V/II. Doc.42/15., at p. 55 at para. 115. 36 Supra, endnote 30 at p. 38 at section 4. 37 Ibid. 38 Exhibit RAD-2, Transcript of hearing before the RPD on November 9, 2018, at pp. 24 - 26. 39 Ibid, at p. 27. 40 Supra, endnote 30, at p. 22. 41 Supra, endnote 28, at tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Honduras. United Nations High Commissioner for Refugees. 27 July 2016 at p. 67. 42 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 1172, [1994] 1 F.C. 589 (F.C.A); and, Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A). 43 Exhibit RPD-1, RPD Record, RPD Reasons and decision, at p. 14 at para. 48. 44 Supra, endnote 28, at tab 7.2: ?MS13 in the Americas: How the World's Most Notorious Gang Defies Logic, Resists Destruction. Insight Crime; Center for Latin American & Latino Studies. Steven Dudley; Héctor Silva Ávalos. 16 February 2018, at p.50. 45 Supra, endnote 30, at p. 21. 46 Ibid, at p. 19. 47 Supra, endnote 28, at tab 7.3: ?Gangs in Honduras. InSight Crime. 21 April 2016, at p. 36. 48 Supra, endnote 30, at pp. 47 - 48. 49 Ibid, at p. 54. 50 Supra, endnote 35, at pp. 55 - 56 at para 117. 51 Supra, endnote 34, at p. 19 at para. 82. 52 Ibid, at p. 17 at para. 75. 53 Ibid. 54 Supra, endnote 30, at p. 48, at section 2.5. 55 Supra, endnote 41, at p. 38. 56 Ibid, at pp. 14, 40-41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-07599 VB8-07600 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français