Category: Afghanistan

Citation: 2022 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 26, 2022
Panel: Vanessa Fairey
Counsel for the Claimant(s): Robin David Bajer
Country: Afghanistan
RPD Number: VC1-07308
Associated RPD Number(s): VC1-07309 / VC1-07310 / VC1-07311
ATIP Number: A-2022-01960
ATIP Pages: N/A

INTRODUCTION

[1]       MEMBER: These are the reasons for the decision in the claims of the principal claimant, XXXX XXXX XXXX, and his spouse, XXXX XXXX XXXX, who is the associate claimant, and the minor claimant, XXXX XXXX, who are all citizens of Afghanistan, and in the case of the second minor claimant, XXXX XXXX, who is a citizen of both Afghanistan and the United States of America, who are claiming refugee protection pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act, or IRPA. I note for the record that the principal claimant has been designated as the representative for the minor claimants.

DETERMINATION

[2]       For the reasons that follow, I find that the principal claimant, associate claimant, and minor claimant, XXXX XXXX, are Convention refugees as they have each established a serious possibility of persecution on account of at least one Convention ground in Afghanistan. In the case of the minor claimant, XXXX XXXX, in order for claim for refugee protection to be successful, the Act requires that the claim must establish a claim against each of their countries of nationality. In this case, no claim was advanced against the United States by the minor claimant or on her behalf. Indeed, there is no evidence before me that the minor claimant faces a risk of persecution or of cruel and unusual treatment or punishment or of torture in the United States. Accordingly, it’s unnecessary to examine the risks she faces in Afghanistan, and her claim for protection must be rejected.

ALLEGATIONS

[3]       You each fear persecution at the hands of the Taliban in Afghanistan due to the principal claimant’s previous employment as a XXXX XXXX XXXX with XXXX XXXX XXXX XXXX XXXX, in which he XXXX XXXX XXXX XXXX in the United States at the XXXX XXXX XXXX in New York. The associate and minor claimants alleged persecution as members of a particular social group as the family members of the principal claimant.

[4]       The former Afghan government collapsed on August 15, 2021, resulting in the principal claimant’s job being terminated and with it, any status as a government employee. After monitoring the situation for a couple of weeks and watching evacuations of Afghans that had previously worked with the US Government, the claimants chose to travel to Canada XXXX XXXX, 2021, and submit claims. They were deferred until XXXX XXXX, 2021, due to border restrictions as a result of the pandemic. The claimants submit that they did not submit claims in the US as they have a family member in Vancouver and due to a long and uncertain asylum process in the USA. It is again noted that the youngest family member, Elina, was born in the USA and thus holds US citizenship.

[5]       The claimants allege that the Taliban targets anyone who has XXXX XXXX XXXX and especially Americans and that they are considered a kafir or infidel. The principal claimant notes that as the Taliban has taken over the Ministry of Foreign Affairs, where he was once employed, that they will have access to his information and, certainly, he and his family will be marked for harm and/or death. He notes that he has publicly stated his political opinion, which is opposite to that of the Taliban, on social media and that this will further incite persecution from the Taliban. The claimants have also submitted that the female claimants will face gender-based persecution and harm from the Taliban due to their membership in a particular social group as females.

ANALYSIS

Identity

[6]       I find that your identities as nationals of Afghanistan have been established by the documents provided at Exhibit 1, namely your Afghan passports. In the case of the female minor claimant, I am satisfied of her identity and citizenship in the United States by her USA passport as well as her citizenship in Afghanistan as per her parents, who are Afghanis, and this is also found at Exhibit 1.

Credibility

[7]       Pursuant to the Maldonado principle, a claimant’s testimony is presumed to be true unless there is valid reason to doubt their truthfulness, such as with inconsistencies, contradictions, or implausibilities. In these cases, I have no such reason to doubt the testimony of the claimants. There were no relevant inconsistencies in the evidence or contradictions between the evidence and other evidence before me.

[8]       The principal claimant has testified regarding his occupation that he was employed from XXXX 2019 until XXXX 2021 in the USA XXXX XXXX XXXX XXXX XXXX XXXX. He explained that they were not offered assistance to remain in the US by the US government and that he did not seek out assistance in the US as it did not appear that, as Afghan employees, the US government would assist. He fears the Taliban to due to his employment in this capacity and especially as someone who worked with the Americans as the Taliban specifically targets people in those positions. The associate claimant also testified to the same fear and additionally testified emotionally regarding her fear for herself and the minor female claimant of having no rights as females in Afghanistan under the Taliban.

[9]       The claimants have provided ample supporting documentations to support their allegations. These are found at Exhibit 5 and include photographs of the principal claimant at various official events in his capacity as an Afghan government representative, copies of his social media posts, and, at Exhibit 1 again, service passports for the principal, associate, and minor male claimant. Upon a review of these documents, I find no reason to doubt their authenticity and therefore place significant weight on them as they serve to corroborate the allegations. I find that the claimants are credible and have established a subjective fear of persecution in Afghanistan.

Well-Founded Fear

[10]     For equipment to be a Convention refugee, they must have a well-founded of persecution due to a Convention ground. The Convention grounds are race, religion, nationality, membership, in a particular social group, and political opinion. I find that the harm these claimants fear is by reason of multiple intersecting factors, including their actual or perceived political opinion, as the principal payment was an employee of the previous government as well as having been posted to North America, and in the case of the associate and male minor claimants, their membership in a particular social group as members of an employee of the former Afghan national government. As well, the harm feared by the associate claimant is due to her membership in a particular social group as woman.

[11]     I also find that the objective evidence in the National Documentation Package, the NDP, for Afghanistan supports the allegations, including at Items 1.5 and 2.1 as follows. Civilians associated with or perceived to be supporting the former Afghan government, civil society, and the international community in Afghanistan, including the international military forces and international humanitarian and development actors, have been subject to intimidation, threats, abduction, and targeted attacks by anti-government elements, including the Taliban. This may include returnees from Western countries. The Taliban continues to commit human rights abuses, including killings and kidnappings against those who oppose them, and maintains illegal detention centres. The Taliban and other insurgents continue to kill security personnel and civilians using indiscriminate tactics, such as improved explosive devices, IEDs, suicide attacks, and rocket attacks, and to commit disappearances and torture. The Taliban referred to their attacks as martyrdom operations.

[12]     Violence against women remains a widespread, common, and undeniable reality in Afghanistan. Impunity in relation to such violence is reportedly common, despite the previous government’s efforts to promote gender equality. Women who are perceived as transgressing social norms continue to face social stigma and gender discrimination and threats to their safety, particularly in rural areas and areas controlled by anti-government entities or the Taliban. At Item 1.20, the report notes regarding recent political situations that the Taliban states that women’s rights will be permitted within the limits of Islamic sharia. Such norms include a strict dress code as well as requirements that restrict a woman’s freedom of movement, such as the requirement to be accompanied by a male relative chaperone when appearing in public. The level of discrimination that women such as the associate claimant face is sufficiently serious to constitute persecution. The recent withdrawal of international troops from Afghanistan has increased this risk. This is supported by Item 1.14 of the NDP as follows.

[13]     In the wake of the withdrawal of international troops from Afghanistan, there has been rapid deterioration in the security and human rights situations in large parts of the country. Reports emerged from Taliban-held areas of the imposition of restrictions on personal and social freedoms and the erosion of women’s rights and access to services, including education. The Taliban has taken control of a rapidly increasing number of districts, with their advance accelerating in August 2021 to capturing 33 out of 34 of Afghanistan provincial capitals in the space of 10 days, ultimately taking control of the presidential palace and capital. Again, this is at 1.14 in the NDP. This upsurge of violence has had a serious impact on civilians, including women and children. At Item 1.28, we have a UNHCR report that notes that it is concerned about the risk of human rights violations against civilians, including women and girls, and against Afghans who are perceived by the Taliban to have a current or past association with the Afghan government or with the international military forces in Afghanistan or with international organizations in the country. It advises against returns to Afghanistan of those who have fled, including those whose asylum claims have failed.

[14]     I find that the country evidence noted above establishes that those associated with the government and/or international agents and women who do not abide by traditional Islamic criteria, such as the associate claimant before me and the principal claimant, face persecution by the Taliban in Afghanistan. I therefore find that three claimants, the principal, associate and male minor claimants have established a serious risk of persecution, including death by the Taliban, should they return to Afghanistan.

[15]     Regarding the female minor claimant, as I’ve mentioned, there is no claim advanced against the United States, of which she is a citizen, and therefore, I find her not to have established a well-founded fear persecution in the United States. I find that she’s neither a Convention refugee nor a person in need of protection with respect the United States. Consequently, I need not examine her claim against Afghanistan as she can safely return to the USA.

State Protection and Internal Flight Alternative

[16]     Based on the objective evidence just discussed, I find that there’s not adequate or operationally effective state protection available in Afghanistan. The former Afghan government pardon has collapsed, turning the entire country, effectively, over to the Taliban. The agents of persecution govern most, if not all of the country. Given the specific circumstances of the principal, associate, and male minor claimants and the very recent occurrences in the country and that the Taliban control most of the country, I also find that there is no viable internal flight alternative for these claimants in Afghanistan.

CONCLUSION

[17]     I find that the principal, associate, and male minor claimants, are Convention refugees pursuant to s. 96 of the IRPA, and I accept their claims. I find that the female minor claimant is not a Convention refugee pursuant to s. 96 of the IRPA or a person in need of protection pursuant to s. 97 of the IRPA. I therefore reject her claim, and that is the end of decision and reasons for the transcription records.

——— REASONS CONCLUDED ———

Citation: 2020 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2020
Panel: Chad Prowse
Counsel for the Claimant(s): Kay Scorer
Country: Afghanistan
RPD Number: VB9-08564
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000001-000008

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX] who claims to be a citizen of Afghanistan, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).^[1]

ALLEGATIONS

[2]       The claimant identifies his ethnicity as Hazara and his religion as Shia.

[3]       He worked as an [XXX] and [XXX] in Afghanistan on many [XXX] projects for the [XXX].

[4]       He and/or his relatives were threatened by anti-government elements (AGEs) including members of the Taliban on multiple occasions due to his employment. He was also attacked by the Taliban in [XXX] 2013, in Ghazni Province, and he was shot at in Kabul in [XXX] 2019.

[5]       These threats and assaults all took place in Ghazni province, the claimant’s family’s place of origin in Afghanistan, with the exception of the attack in Kabul in [XXX] 2019.

[6]       The claimant knows persons in his situation and/or with his profile who have been killed by the Taliban. He identifies them in his narrative.

[7]       The claimant left Afghanistan and traveled to Canada on a visitor visa in [XXX] 2019.

[8]       The claimant is afraid that he will be killed or harmed by AGEs because of his employment and profession.

DETERMINATION

[9] I find that the claimant is a Convention refugee as he has established a serious possibility of persecution on account of his race, religion and political opinion for the following reasons.

ANALYSIS

[10]     The determinative issue in this case is credibility.

Identity

[11]     I find that the claimant’s identity as a national of Afghanistan is established by the documents provided: passport; national identity card.^[2]

Credibility

[12]     The claimant testified in a straightforward manner and there were no material contradictions, inconsistencies, or omissions in his testimony. He provided detailed and spontaneous testimony about his employment history as a [XXX] for [XXX].

[13]     Based on the documents in the file, I have noted no serious credibility issues. In particular, the following evidence helps to establish the allegations as set out above: employment agreements and contracts; copies of employment identification cards; education documents. After reviewing the documents, I have no reason to doubt their authenticity.

[14]     I do not draw any significant negative inference from the fact that the claimant failed to claim asylum in [XXX] or Canada in 2018, or [XXX] in 2019, and the fact that he did not leave Afghanistan until [XXX] 2019 notwithstanding his valid Canadian visitor visa. Firstly, I accept the claimant’s testimony that he believed that he was relatively safe in Kabul from the threats in his home province, providing he took basic precautions, which I accept that he did. He realized that this assumption was erroneous when he was attacked in Kabul in 2019. He did not delay in leaving Afghanistan after this incident. Secondly, the claimant was motivated to return to Afghanistan despite some level of risk, after completing his Master’s degree in [XXX] which he believed would increase his capacity to help his country. Thirdly, his trip to [XXX] took place before the attack in Kabul, and its purpose was to seek medical treatment for family members. Overall, I find that these considerations do not undermine the claimant’s credibility or his subjective fear of persecution in Afghanistan.

Well-founded fear of persecution

[15]     The available country evidence in the National Documentation Package (NDP)^[3] establishes that there is an objective basis for the claimant’s fear, and that he falls under numerous intersecting risk profiles, contributing to his overall situation of risk.

[16]     According to the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Afghanistan,

[17]     AGEs [anti-government elements] are reported to systematically target civilians who are associated with, or who are perceived to be supporting the Afghan Government, pro­-Government armed groups, Afghan civil society and the international community in Afghanistan, including the international military forces and international humanitarian and development actors. The (perceived) association with any of these actors may arise for example through current or former employment or family ties. Civilians who have been targeted include district and provincial governors, judicial and prosecution staff, former and off-duty police officers, tribal elders, religious scholars and leaders, women in the public sphere, teachers and other civilian government workers, civilians perceived to oppose AGE values, human rights activists, and humanitarian and development aid workers. Between 1 January and 31 December 2017, UNAMA attributed 570 targeted killings to AGEs, which caused 1,032 civilian casualties (650 deaths and 382 injured) and accounted for 10 percent of all civilian casualties during the year. The number of such incidents perpetrated by AGEs increased from 483 in 2016 to 570 in 2017, and the number of civilians killed in such incidents increased by 13 per cent.^[4]

[18]     According to the EASO report on “Afghanistan Individuals targeted by armed actors in the conflict”.

[19]     In 2016, UNAMA recorded 481 incidents targeting government officials, including judges, prosecutors and judicial staff but not including ANSF, resulting in 521 casualties. For example, in 2016 in Kandahar City, there was a continued spree of execution style killings of civilians working for or perceived as having connections with, the local authorities… [However] [t]argeting by the Taliban is not limited to those who are government employees, but also to those who are accused of being a supporter of the government. In 2013, UNAMA documented 246 attacks against civilians who had no official affiliation to government, NGOs or recognised civilian institutions (i.e. medical, education, elections, development programming). These attacks against civilians resulted in 532 civilian casualties… Through their parallel judicial system, the Taliban also punished those they accused of being a spy, and passing on information on the Taliban to the government. According to Giustozzi, spying for the government is considered a crime per se, without the possibility to repent.^[5]

The UNHCR also reports that,

There are reports of individuals who returned from Western countries having been threatened, tortured or killed by AGEs on the grounds that they were perceived to have adopted values associated with these countries, or they had become “foreigners” or that they were spies for or supported a Western country. Returnees are reportedly often treated with suspicion by the local community as well as by State officials, leading to discrimination and isolation. Individuals who fall under other profiles, such as profile 1.e (humanitarian workers and development workers) and profile 1.e (women in the public sphere) may similarly be accused by AGEs for having adopted values and/or appearances associated with Western countries, and may be targeted for that reason.^[6]

[20]     The claimant is also a member of a minority ethnic or religious group in Afghanistan, having self-identified his ethnicity as Hazara. According to the United Nations High Commissioner for Refugees (UNHCR) Guidelines, ethnicity and religion in Afghanistan are inextricably linked, especially in the case of Hazaras.^[7] The objective evidence shows that Hazaras suffer discrimination and are victims of violent attacks by AGEs. A Response to Information Request (RIR) from the Immigration and Refugee Board (IRB) states that “the position of Hazaras as an overwhelmingly Shiite non-Pushtun minority makes them an easy target for the overwhelmingly-Pushtun Taliban seeking to rebuild support from Sunni Pushtun groups…”^[8]

[21]     On a balance of probabilities, I accept that the claimant worked as a [XXX] for [XXX] in Afghanistan; that this information came to the attention of the Taliban, initially in Ghazni province; and that he is a member of a minority ethnic or religious group in Afghanistan, that is targeted by AGEs merely on the basis of race or religion. The country evidence establishes that the claimant faces a well-founded fear of persecution.

State Protection

[22]     While states are presumed to be capable of protecting their nationals, it was open to the claimant, according to the law, to rebut the presumption of protection with “clear and convincing” evidence.^[9]

[23]     The evidence in the National Documentation Package shows that while state authorities in Kabul and other cities controlled by the government may be willing to offer protection, in general that protection is unlikely to be effective or adequate.

[24]     Additionally, according to the U.S. Department of State, corruption in the police and justice system is pervasive.

[25]     I find, on the evidence, that the claimant has rebutted the presumption of state protection.

Internal Flight Alternative

[26]     I have considered whether a viable internal flight alternative exists for the claimant. On the evidence before me, I find that there is a serious possibility of persecution throughout Afghanistan.

[27]     The available country information establishes that with respect to state protection, the central government is generally strongest in Kabul and possibly a few other big cities such as

Herat and Mazar-i-Sharif.^[10]

[28]     However, the preceding analysis has shown that even in Kabul and Mazar-i-Sharif, state protection is ineffective and inadequate for persons in the claimants’ situation.

[29]     Additionally, there is evidence that the Taliban are able to find a person who relocates to a different area, particularly when targeting their “well known or well positioned opponents.”

[ 30]    Also, the Taliban generally has the capability to track individuals, through the use of “formal and informal communication” networks to obtain information about a person’s whereabouts. While it is more difficult to track people who have moved into urban environments, even there the Taliban have spies and members who can gather considerable

information.^[11]

CONCLUSION

[31]     Based on the analysis above, I conclude that the claimant is a Convention refugee. Accordingly, I accept his claim.

^[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

^[2] Exhibit 1.

^[3] Exhibit 3.

^[4] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. United Nations High Commissioner for Refugees. 30 August 2018.

^[5] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.18: EASO Country of Origin Information Report. Afghanistan: Individuals targeted by armed actors in the conflict. European Union. European Asylum Support Office. December 2017.

^[6] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. United Nations High Commissioner for Refugees. 30 August 2018.

^[7] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. United Nations High Commissioner for Refugees. 30 August 2018.

^[8] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 13.2: DFAT Thematic Report: Hazaras In Afghanistan. Australia. Department of Foreign Affairs and Trade. 18 September 2017.

^[9] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.21: ? Afghanistan. The precarious struggle for stability. Canada. Canadian Security Intelligence Service. May 2019.

^[10] Exhibit National Documentation Package, Afghanistan, 31 March 2020, tab 1.6: Country Policy and Information Note. Afghanistan: Afghans perceived as “Westernised”. Version 1.0. United Kingdom. Home Office. January 2018.

^[11] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 14.1: Whether the Taliban has the capacity to pursue individuals after they relocate to another region; their capacity to track individuals over the long term; Taliban capacity to carry out targeted killings (2012-January 2016). Immigration and Refugee Board of Canada. 15 February 2016. AFG105412.E.

Citation: 2019 RLLR 114
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2019
Panel: Becky Chan
Country: Afghanistan
RPD Number: VB7-05815
ATIP Number: A-2020-01459
ATIP Pages: 000206-000211

— DECISION AND REASONS BY THE MEMBER

[1]       PRESIDING MEMBER: This is the decision of the Refugee Protection Division in the claim of [XXX]. You claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. Written reasons will be provided to you and your counsel. The written reasons will be a transcript of what I’m saying now.

[3]       I find that you are a Convention refugee as you have a well-founded fear of persecution.

[4]       I will summarize your allegations as follows. You are a 25 year old male citizen of Afghanistan. You are originally from Ghazni but you resided in Kabul most recently with your family. Your father was a [XXX] for American residents and businesses in Kabul; however, he quit his job in 2014 because the work was risky and dangerous.

[5]       You joined the [XXX] after you completed high school. In 2013, you attended [XXX] from June to October 2013. You first worked as a [XXX] in Sharana, Paktika Province for about one year and then in October 2014 you were transferred to Kabul where you worked in the [XXX] in Kabul.

[6]       You received a number of threats from someone who identified himself as [XXX] (ph) because you worked for the [XXX] and your father also worked for what the caller called the infidel government. You received a number of phone calls in 2015 when- sorry, 2014 in Kabul. You changed your number. You told your commander in the [XXX] about the threats after receiving the first two calls. Your commander dismissed your complaint as not being very serious.

[7]       The caller threatened you and your family. Your family moved from Ghazni to Kabul as they felt they would be more safe there.

[8]       In early 2016 – sorry, the caller at certain times demanded that you and your family move back to Ghazni to repent for your sins and to work for the Taliban. You changed your phone number again and changed your SIM card.

[9]       You and your family moved to four different residents in Darul Aman neighbourhood of Kabul to avert risks of harm from the Taliban.

[10]     You left Afghanistan on [XXX], 2017 to go the United States for some training. Sometime after you went to the United States your family received a letter dated August 16^th, 2017 from the Taliban in Ghazni at their residence in Kabul. The Taliban said that they knew that you’d gone to the United States and threatened to punish you for that if you ever returned to Afghanistan.

[11]     You entered Canada on [XXX], 2017 by eluding a Port of Entry and you made a refugee claim in September 2017.

[12]     I find that you have established your identity as an Afghan citizen through your passport, tazkira and school documents which are in Exhibit 4.

[13]     I find that you are a credible witness. The Federal Court of Appeal stated in Maldonado that when a claimant swears that certain facts are true this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness.

[14]     I have found you to be a credible witness and I therefore believe what you have alleged in support of your claim. You testified in a straightforward manner and there were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence before me that has not been satisfactorily explained, either before the hearing or during the hearing.

[15]     You have provided documentary evidence to support your claim. I find that you have established that you were a [XXX] in the [XXX]. Your testimony was spontaneous and detailed. You provided documents to corroborate your work as a [XXX]. In Exhibit 4 you provided your [XXX] document and an identity document from the [XXX] in the United States to show that you did training there.

[16]     You have provided a personnel transfer document in Exhibit 7 corroborating your transfer from Paktika Province to Kabul. Your US visa also indicates that you were a [XXX]. In Exhibit 6 the Minister has provided your visa application and this also supports your employment as a [XXX] in the [XXX].

[17]     You have also provided -you have provided some documents to corroborate your father’s employment in the [XXX] field. You provided his training certificates that your father received for completing training on [XXX]. You have provided a letter your family received from the Taliban and rental agreements to corroborate other elements of your claim.

[18]     I have also considered your interview with CBSA regarding your work as a [XXX] and find that your evidence generally has been consistent with that interview as well.

[19]     I noted that in Exhibit 16 the Minister has provided a letter and indicated that CBSA did not refer you to an inadmissibility hearing after investigating your work as a [XXX]. They found that you were responsible for [XXX] to prison facilities. You did not generally deal with prisoners directly and there was insufficient evidence in the Minister’s view to find that you were inadmissible or excluded. There is no other evidence before me that would lead me to a different conclusion so I do not find that article 1(f)(a) exclusion is relevant to this claim.

[20]     I find that there is an objective basis to your claim. The UK Country Information Guide on Afghanistan NDP item 1.16 cites a variety of sources that conclude that government officials and civil servants and civilians associated with or perceived as supporting the government face significant risks of intimidation and targeted violence by Taliban and other insurgents.

[21]     This assessment is consistent with the UNHCR Eligibility Guidelines which state that security forces, particularly the Afghan National Police continue to be the object of targeted campaigns from anti-government elements including the Taliban. It states that both ALP – Afghan Local Police – and ANP officers have been targeted both on-duty and off-duty. AGEs are also reported to target officers of other police forces in Afghanistan as well as former members of the Afghan – the ANDSF.

[22]     I find that the harm you face, which includes death, bodily injury and the threat of these things, are sufficiently serious to constitute persecution.

[23]     I also find that your profile in and of itself is sufficient to ground your refugee claim. I find that your fear of persecution has a nexus to the Convention ground of political opinion or imputed political opinion as the Taliban and perhaps other insurgents view you as being aligned to the Afghan government as a [XXX].

[24]     I find that state protection is not available to you in Afghanistan. The documentary evidence before me illustrates that state protection mechanisms in Afghanistan are ineffective in protecting persons with your profile from harm. The UNHCR Eligibility Guidelines, NDP item 1.5 indicate that the rule of law is particularly weak in Afghanistan and the government has a limited capacity to respond to anti-government elements given the number and the scope of attacks by the Taliban and other insurgent groups.

[25]     The Guidelines state that the conflict continues to affect all parts of the country since the government’s decision to defend population centers and strategic rural areas, fighting between AGEs and the Afghan government has intensified. AGEs are reported to have engaged in an increasing number of attacks deliberately targeting civilians particularly suicide, IED and complex attacks. AGEs continue to carry out large-scale attacks in Kabul and other cities and to consolidate their control across rural areas. Concerns have been expressed about the ANDSF’s capability and effectiveness in ensuring security and stability across Afghanistan.

[26]     The Guidelines further state that even where the legal framework provides for the protection of human rights, the implementation of Afghanistan’s commitments under national and international law to promote and protect these rights in practice frequently remains a challenge.

[27]     Afghan governance and the adherence to the rule of law are perceived to be as particularly weak. High levels of corruption challenges to effective governance and a climate of impunity are all reported by observers as factors that weaken the rule of law and undermine the ability of the state to provide protection from human rights violations.

[28]     Corruption is reported to affect many parts of the state apparatus on the national, provincial and local levels. Afghan citizens reportedly have to pay bribes to access public services such as to the provincial governor’s office and the municipal governor’s office and the custom’s offices. Within the police, corruption is reported to be endemic as is the abuse of power and extortion.

[29]     The justice system is similarly reported to suffer from widespread corruption. The most recent US Department of State report on Afghanistan NDP item 2.1 observes that widespread disregard for the rule of law and official impunity for those who committed human rights abuses were serious problems.

[30]     I find that state protection would not be reasonably forthcoming to you in Afghanistan. The presumption of state protection has been rebutted by clear and convincing evidence.

[31]     I have also considered your failure to claim in the United States. You went there for training. You explained that you did not claim there because you understood that there was an understanding that you were to return to Afghanistan after training and you also believed, based on anecdotal information, that the US refugee system was quite slow and it would take a very, very long time for your claim to be heard and you are very concerned about the safety of your family and you did not want to wait for a very long time to re­ unite with your family.

[32]     I find that your explanation generally is reasonable and I do not draw an negative inference based on your failure to claim in the United States.

[33]     I find that no viable internal flight alternative or IFA exists for you in Afghanistan. You were living in Kabul prior to leaving Afghanistan. Kabul is considered to be one of the safer parts of Afghanistan especially for lower profile targets. However, given the Taliban’s extensive networks and the tribal and interconnecting nature of Afghan society, I do not find that there is a viable internal flight alternative for you in Afghanistan.

[34]     I have considered a Response to Information Request, NDP item 4.1 about internal relocation in Afghanistan. One source, a professor, explained that the Taliban may be able to find a person who relocates to a different area and that they have been successful in doing so particularly when targeting their well-known or well-positioned opponents.

[35]     Another source states that the Taliban generally has the capability to track individuals through the use of formal and informal communication networks to obtain information about a person’s whereabouts. Various sources in this RIR describe the tribal and interconnected nature of Afghan society. People, especially in rural areas, are extremely perceptive of their environments and know when a new person comes into the village or travels through it.

[36]     According to the professor, it is more difficult to track people who have moved into urban environments, but even there the Taliban have spies and members who can gather considerable information. Tribal networks still operate in urban areas and he gives the example of the Taliban infiltrating and obtaining information from large refugee camps near Kabul.

[37]     Afghans are a tribal people and this allows them to, in part, know the circumstances of the people in their tribe or ethno-linguistic group. This is obviously easy to do at the local, district, and provincial level of their home locality but because of extended families or other dynamics one’s identity is often hard to hide even when an Afghan leaves their home locality.

[38]     Accordingly, I find that you do not have an internal flight alternative in Afghanistan.

[39]     For the foregoing reasons, I find that you are a Convention refugee and I therefore accept your claim.

—PROCEEDINGS CONCLUDED

Citation: 2019 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2019
Panel: L. Colle
Counsel for the claimant(s): Ali Yusuf
Country: Afghanistan
RPD Number: TB7-25153
Associated RPD Numbers: TB7-25154, TB7-25155, TB7-25156, TB7-25157
ATIP Number: A-2020-01459
ATIP Pages: 000043-000047

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. I would like to add that in event that written reasons are issued, a written form of these reasons may be edited for spelling, syntax, and grammar, and references to the applicable case law and documentary evidence may also be included.

[2]       The claimant is Ms [XXX]. Claims to be a citizen of Afghanistan and is claiming refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       She is joined by four minor claimants her children, all with the last name [XXX] and whose names are [XXX], and you are appointed as the designated representative to the four minor age children whom I saw in the video conference at the last sitting.

[4]       In deciding your claim I’ve also considered the guideline on minor refugee claims. That’s the guideline number three and also on the guideline four on women refugee claimants fearing gender related persecution.

[5]       I find that all five of you are Convention refugees for the following reasons.

[6]       You allege that you fear returning for two reasons to Afghanistan. One for the security situation in Afghanistan, the (inaudible) and the current war with the Taliban and also that you and the minor claimants would be targeted because your husband has been a high ranking official with the Afghan Government.

[7]       Now, I note that the claimant’s husband Mr. [XXX](ph) [XXX], testified at the last sitting on March 6th and testified via phone from Kabul.

[8]       And also, you explained that you … your husband was posted in Afghanistan. Not in Afghanistan but in Brussels, Belgium from [XXX] 2016 or about [XXX] 2017. You went together, a family vacation in Washington State on the Canadian border.

[9]       You had previously discussed with your husband that you wanted to claim asylum in Belgium but he would not release the passports of your children, and that he also disagreed. He did not want you to cross the border ’cause he felt that it would be an illegal crossing and it would be not proper for you and the minor claimants cross the Canadian border to make refugee claims.

[10]     Across … but you did cross in [XXX] 2017 made … and made refugee claims, and you spoke to your husband that day by phone and he was upset. But or … as … as we passed into 2018 and 2019 since then you’ve reconciled with your husband.

[11]     Now, what happened before this reconciliation became apparent the Minister representative did not have information that the panel has now and … today … and first brought up two issues that they wanted to intervene under Articles 1(f)(b)(c). First under the United Nations Convention relating to the status of refugee, and l(f)(c) as well.

[12]     Now, under 1(f)(b) the Minister believed that there were serious reason for concern that the claimant has committed … committed an act of abduction as described in Section 283 of the Criminal Code. Then under 1(f)(c) the Minister believed that there were serious reasons for considering that the claimant had committed acts contrary to the purposes and principles of the United Nations. Specifically, the United Nations Convention on the rights of the child and, however, since there was no consent letter from your husband on file.

[13]     Subsequent to that on … the Minister’s representative wrote another letter on March 5th, 2019. That is Mr. Patrick Klauss, K-L-A-U-S-S, a hearings officer with the Canada Border Services Agency, and said the Minister is withdrawing their participation from … from the refugee hearing.

[14]     The Minister did conduct an investigation that did not yield any adverse information. The Minister also contacted background checks via the RCMP, and they did not indicate that the minor children had been reported missing or abducted, and also … Minister’s rep also added a Hague Application has also not been filed with regards to the minor children. Hague is spelling, H-A-G-U-E.

[15]     All right. And it said further, the Minister is of the understanding that the husband has now granted permission for his children to be in Canada.

[16]     Now, the Minister added that the Minister’s aware of the possibility of the l(f)(b) exclusion should … could also be considered by they panel as the claimant’s action could potentially fall within the ambit, A-M-B-I-T, of Section 283 of the Criminal Code of Canada.

[17]     However, the panel has considered Section 283 of the Criminal Code and conducted a teleconference with the claimant’s husband from Kabul on Wednesday March the 6th, and the claimant’s husband gave credible testimony. Also, provided important dates including birthdates, marriage dates for the children and the claimant. His testimony was also very consistent with the claimant’s Basis of Claim Form, and he gave credible and very, very detailed information about the security situation in Afghanistan and in Kabul.

[18]     Now, I’ll go into that again, but I also noted that through counsel we also received a written consent letter Exhibit 13 from the claimant’s husband as well as the verbal consent. So, I find that given the Minister’s new position examining Criminal Code Section 283 the … the claimant does not fall under the exclusions Articles either l(f)(b) or l(f)(c). And so, I have no reasons to believe … there’s no evidence that those article … exclusion Articles are in play in this case.

[19]     Now, your identities, all your identities as nationals of Afghanistan is established by your testimony in Dari and also the supporting documentation including the certified true copies of your Afghan passports in Exhibit 1.

[20]     All right. I found you and your husband as a witness are … to be credible witness and … witnesses and therefore I believe what you have alleged in support of your claims. You both testified in a straightforward manner and there are no relevant inconsistencies in either of your testimony or contradictions between your testimony and the other evidence before me such as country documents, personal documents, or the Basis of Claim Forms.

[21]     Now, the … your husband testified that he was a foreign … in the foreign service and is seeking a new position either in the securities … internal security or the Defense Department in Afghanistan.

[22]     He gave a candid assessment of the security situation in Afghanistan today. At least 40 to 50 percent of the territory of Afghanistan is controlled by the Taliban. The … he explained the difficulties in containing the Taliban including the porous borders and other factors that made it very documents to control this insurgency.

[23]     He also explained as an adult. He’s about 45-years-old. His … he lives with his mother and his mother is afraid for his life and fears … doesn’t want him to go out definitely in the evening time at all, to stay close to home. And your husband also said that … that daily security precautions have to be taken. There’d have to be frequent changes in departures and entrances into the house from different situations. For … for example, if someone … if he were to work again he’d have to change his route daily or almost two times a week, biweekly to be safe.

[24]     So … so, I find that in your particular case given that you are family members of a former diplomat with the Afghan Government, that State protection would not be reasonably forthcoming in this particular case. Given that you and your family members the minor claimants would be high valued targets of the Taliban since you are, since you would be targeted because of your family membership and your … your husband’s relatively high profile.

[25]     I … I also considered Exhibit 7 the latest National Documentation Package for Afghanistan from February 28, 2019 and note the tenuous security situation. The State is willing to provide protection but in many instances is unable to do so.

[26]     Given the targeted attacks on women and children by the Taliban, for … for example, I see that in the Department of State report for Afghanistan in Section 2.1 and other human rights documents in the Index.

[27]     Now, going back briefly credibility, I … I accept your explanation why you didn’t claim in Belgium. You were under your husband’s … well, he had the passports and wouldn’t let you even try to claim there. And … and in July 2017 there was again, you were at … disagreement about what to do with yourself and the children, and you took action to … because of your fear of returning to Afghanistan to make claims in Canada.

[28]     And I must say also Mr. [XXX] gave phenomenally detailed information about the security situation in Afghanistan and he obviously, on a balance of probabilities, was a diplomat, has been involved with the Afghan Government.

[29]     Now, I’ve considered whether a viable internal flight alternative exits for you in Kabul. But on the evidence before me I find that there is a serious possibility of persecution throughout Afghanistan including Kabul if you were to return to Afghanistan.

[30]     Now, I considered the fact your husband is in Kabul, but he basically is semi-hiding, and the security situation has outlined in the National Documentation Package including the Department of State report is very tenuous right now. That’s why I find that there’s more than a mere possibility of persecution should you return to Kabul since you and the children would be obvious and visible targets of … of blood thirsty Taliban forces.

[31]     Therefore, for all those reasons I conclude all five of you are Convention refugees and therefore accept your claims.

[32]     The hearing … okay. Thank you, Mr. Yusuf, and Mr. Noor, here in Toronto. Thank you.

[33]     This hearing is now concluded.

[34]     CLAIMANT: Thank you.

[35]     INTERPRETER: Thank you very much, Mr. Member.

[36]     MEMBER: Okay, bye-bye.

———- REASONS CONCLUDED ———-