Citation: 2020 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: June 18, 2020
Panel: D. Marcovitch
Counsel for the Claimant(s): James Stephen Schmidt
Country: Guatemala
RPD Number: TB8-20434
Associated RPD Number(s): TB8-23370
ATIP Number: A-2021-00540
ATIP Pages: 000097-0000102
REASONS FOR DECISION
[1] The claimants, [XXX] (the “principal claimant” or “PC”) and [XXX] (the “associated claimant” or “AC”), (collectively, the “claimants”) claim refugee protection as against Guatemala pursuant to s.96 and s.97(1) of the Immigration and Refugee Protection Act (“IRPA”).1
[2] The claims were joined pursuant to Rule 55 of the RPD Rules.
[3] In deciding these claims, I have considered the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2
ALLEGATIONS
[4] The allegations of the claimants are set out in their respective BOC forms.3
[5] In summary, on [XXX], 2018, the PC was forcibly taken off the street by members of the local Mara 18 gang and into an abandoned lot and sexually assaulted. Afterwards a neighbour found her and brought her home. The AC insisted that she and the PC go to file a report on the assault with the police. The PC received a medical evaluation which confirmed the sexual assault.
[6] The gang members learned that the PC filed a report about the sexual assault and called and threatened both her and the AC to withdraw the complaint. The PC and AC moved to a nephew/cousin’s home about 200km away, however, the claimants were eventually found there too. As a result of the negative attention, the nephew/cousin asked the claimants to leave his home because he was now in danger.
[7] The claimant left Guatemala for the USA on [XXX], 2018, where they stayed with AC’s sister/PC’s aunt. The AC had a [XXX] related health emergency while in the USA and then the AC’s sister asked them to leave because she could financially support them, so the claimants did not leave for Canada until August 2018. The AC still had a valid Canadian visa (from previously visiting a daughter in Ontario) so she crossed the border on August 18, 2018. The PC travelled to Canada on August 22, 2018 after having booked a border appointment through Vive la Casa.
DETERMINATION
[8] I find that the claimants are Convention refugees as they would face a serious possibility of persecution at the hands of the Mara 18 gang based on their membership in a particular social group, namely women who are victims of gender violence.
ANALYSIS
Identity
[9] The claimants’ have established their identities, on a balance of probabilities, based on their testimony as well as the certified true copy of the claimants’ Guatemalan passports, all on file and which were forwarded to the Board by Immigration, Refugees and Citizenship Canada.4
Nexus
[10] I find that the principal claimant has established a nexus to the Convention by virtue of her membership in a particular social group, namely, female victim of gender violence. I find that the AC has established a nexus to a Convention ground on the basis of her membership in the particular social group of family, through the PC’s allegations.
Credibility
[11] The onus rests on the claimants to establish their allegations on a balance of probabilities. In this regard, it is well-established that a claimant’s sworn testimony is presumed to be truthful, unless there are valid reasons to doubt the claimant’s truthfulness.5 Moreover, a claimant’s allegations must be proven on a balance of probabilities only.
[12] The principal claimant testified credibly with respect to the sexual assault and attempt to get state protection. I also find that the claimants were credible with respect to their testimony regarding being found by Mara-18 approximately 200km’s away from their home. While I find that there has been some embellishment regarding details around whether the Mara 18 members surrounded their nephew/cousin’s home, it is not enough to take a negative inference as to the entirety of the claim.
[13] The claimants provided some documentary evidence in support of their allegations, including documentation from the Police, the Public Ministry and Prosecutor’s Office in Guatemala, as well as forensic medical and psychological reports.6 The claimants also provided support letters from family members and neighbours.7
[14] These documents support the claimants’ allegation that the PC was sexually assaulted and that both claimants’ lives were threatened and reported to the police and the Public Ministry and Prosecutor’s Office. The panel notes that there were some inconsistencies with the principal claimant’s testimony; however, after considering the entirety of the evidence, the panel has accepted the claimants’ allegations on a balance of probabilities.
State Protection
[15] The documentary evidence on country conditions establishes that criminal gangs like the Mara 18 are powerful, deadly, and out of control in Guatemala and that they are active in extortion and violent criminal gang activity in all parts of the country, such that Guatemala is in the midst of a criminal gang crisis.8
[16] The country documents also establish that the Guatemalan police are corrupt and collude with gangs and are under-resourced and overwhelmed. From this perspective, the police are therefore both unwilling and unable to provide adequate protection to persons, and particularly women, fearing such gangs at the operational level. I find that the PC (as well as the AC) have approached authorities on numerous occasions seeking protection. I therefore accept that the claimants did not receive adequate assistance. Therefore, I find, on a balance of probabilities, that the claimants would not receive adequate state protection on a forward-looking basis should they return to Guatemala and require protection.
[17] Therefore, based on country condition evidence and the claimants’ credible allegations, I find that the claimants face a serious, ongoing possibility of persecution at the hands of the Mara- 18 if they were to return to Guatemala.
[18] As previously noted, I am satisfied that the risk is probable no matter where they go in Guatemala. Guatemala is a small country and the documents indicate that criminal gangs like the Mara-18 are active everywhere in Guatemala and they could, on a balance of probabilities, track the claimants down/find out their past history no matter where they attempted to hide.
[19] I therefore find that a viable internal flight alternative is not available to them.
CONCLUSION
[20] I therefore conclude that the claimants are Convention refugees under s.96 of the IRPA and their claims are accepted.
(signed) D. Marcovitch
June 18, 2020
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Chairperson Guidelines 4 of Immigration and Refugee Board of Canada: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 1996.
3 Exhibit 2.1 and 2.2 and additional narrative letter at Exhibit 7.
4 Exhibit 1.
5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
6 Exhibit 6
7 Exhibits 7 and 8
8 See ail items in sections 1, 2, 7, 9 and 10 of Exhibit 3, National Documentation Package (NDP) for Guatemala (31 March, 2020).