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Afghanistan All Countries

2019 RLLR 114

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 16th, 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

Categories
Afghanistan All Countries

2019 RLLR 89

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 ———-