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Algeria All Countries

2020 RLLR 39

Citation: 2020 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: November 13, 2020
Panel: Julie BeauchampĀ 
Counsel for the Claimant(s): M. Mary AkhbariĀ 
Country: Algeria
RPD Number: TB8-26732
ATIP Number: A-2021-00655
ATIP Pages: 000066-000070


DECISION

[1]       MEMBER: And I told the claimant I am accepting her claim, and here are my reasons.

[2]       So, the claimant, [XXX] — this is file TB8-26732 — is a citizen of Algeria and claiming refugee protection under s. 96 and s. 97(1) of the Immigration and Refugee Protection Act. As the claim involves allegation of domestic and gender-based violence, the chairperson’s guideline 4 on women refugee claimants fearing gender-related persecution was considered for the claimant and applied to the hearing and determination of this claim.

[3]       The details of this claim can be found in the Basis of Claim form, which is Exhibit 2, and as amended, found in Exhibit 2.2. The claimant alleges that she faces a serious possibility of persecution at the hands of her father and older brother. She alleges that she spent a life in Algeria being at the mercy of her father who regularly abused her, verbally, psychologically, and physically. She alleges that her father tried to stab her on two occasions, that both times he grabbed a sharp abject and came at her, but she managed to escape to her room. She alleges that she has not heard from her father since she left Algeria but fears for her life and continues to believe him to be capable of hurting or killing her, as she has disobeyed him by escaping and her father does not like to have his authority challenged.

[4]       I have considered all the evidence and I find that you are a Convention refugee and that you face a serious possibility of persecution under s. 96 of the Immigration and Refugee Protection Act on the basis of your membership in a particular social group as a woman fearing domestic violence.

[5]       With respect to your identity, I am satisfied of your persona) and national identities as a [XXX] Algerian woman and that these have been established on a balance of probabilities by a certified true copy of your passport filed at Exhibit 1, and this includes also a Canadian visa that you used to travel to Canada.

[6]       With respect to your credibility, I found you to be a credible witness, and I believe on a balance of probabilities the key allegations of your claim. You testified experiencing verbal and emotional abuse at the hands of your father in your childhood. You testified that the abuse got worse and included physical abuse after you finished school in 2005 and your father forbade you from working. You testified that your mother was also subject to frequent abuse by your father. You testified that your older brother subjected you to verbal abuse, but you testified during the hearing that you could “tolerate” him, and you felt like the one who would hurt you would be your father. You describe your father as a dangerous, illogical man with whom you had no relationship and who would frequently not talk to you. You testify in a straightforward, spontaneous, detail, and sincere manner.

[7]       I did not find that you embellished your story or exaggerated your allegations during your testimony. You provided several details beyond the parameters of your Basis of Claim thereby lending further credibility to your statements. I also note that there were no contradictions, inconsistencies, or omissions between your BOC, your testimony at the hearing, and the documentary evidence submitted.

[8]       You explained to me how you were living in an open prison, that you led a life with no goals, no purpose, with your dreams destroyed. Your father did not allow you to work or get married or have any friends. I believe what you have alleged on a balance of probabilities.

[9]       You also testified on the abuse by your father, the verbal and psychological abuse, the words he would use to call you at home, how he would constantly belittle you, and how he has attempted to severely hurt you with a sharp abject. You testified that your father’s abuse left you feeling betrayed and feeling like there was injustice for you having to go through such hardship. I believe what you have alleged on a balance of probabilities.

[10]     I had concerns about your departure from Algeria. You told me that your father did not know that you had applied for a passport and that you were hiding this passport in your room. You told your mother why you were leaving Algeria, to get away from mistreatment, and that in order for you to do so, your mother had asked your brother to come with her for a [XXX] so that the house would be empty while your father was at work. I accept this explanation on a balance of probabilities.

 [11]    I also had concerns about your delay in claiming in Canada. However, the evidence provided in your testimony and in your BOC satisfy me in terms of your efforts in seeking counsel and juggling the legal aid system in Ontario. You did initially file your Basis of Claim form with the assistance of your brother before retaining counsel. I also accept this explanation on a balance of probabilities, and I find that the credibility concerns by your delay in claiming in Canada are outweighed by your credibility regarding the violence and the threats perpetrated against you.

[12]     As such, I accept on a balance of probabilities what you have alleged as credible, and I also find that your actions reflected a subjective fear.

[13]     With respect to the objective basis now, your allegations are consistent with the objective documentary evidence concerning gender-related violence in Algeria.

[14]     There exist a societal atmosphere in Algeria that contributes to the tolerance of domestic violence and silence victims. That is found at item 5.3 of Exhibit 3.

[15]     Human Rights Watch has stated that the shortcomings of the Algerian government’s response to the problem of domestic violence include a lack of services for domestic violence, particularly shelters, a lack of measures for the prevention of violence, such as use of educational curricular to modify discriminatory social and cultural patterns of behaviours as well as derogatory gender stereotypes, and insufficient protection from abusers, such as restraining orders and inadequate response from law enforcement. Domestic violence was made a criminal offence in Algeria under law number 15-19, but the law has serious shortcomings, as the scope of the definition of domestic violence does not include ail individuals. It is intended to apply to both current and former spouses but does not extend to relatives, unmarried couples, or other household members. And also, there is no overarching legal framework governing violence against women in Algeria. That is found at item 5.2 of Exhibit 3.

[16]     Also, in item 5.3, domestic violence survivors can find themselves trapped, not only because of economic dependence on their abusers, but also because of social barriers which included pressure to preserve the family at all costs, stigma, and shame for their family if women leave or report abuse.

[17]     Counsel’s disclosure at Exhibit 6 included many reports about the domestic violence crisis in Algeria and the extent to which many women are killed by members of their own families.

[18]     Accordingly, I find your fear with respect to the violence at the hands of your father to be objectively well-founded.

[19]     With respect to state protection, you said that you never went to the police because you felt that they would not protect you, and that it would result in you ending up on the street, as there are no shelters. You added that, based on what you know, the police would call your father and force you and him to reconcile.

[20]     The documentary evidence provides that there are significant gaps in Algeria’s legal framework, and the evidence also supports what you have testified about. Frequently, when a woman has enough courage to approach the police to denounce the violence, the officers try to deciduate (sic) her from pressing charges on account of it being a familiar matter, or are dismissive in their response. As previously discussed, the law offers the possibility for the offender to escape punishment or benefit from a reduced sentence. This has the effect of increasing the victim’s vulnerability to social pressure to pardon her abuser, and it might lead to her being dissuaded from seeking court remedies for domestic violence. In addition, the law relies heavily on an assessment of physical incapacitation — think I said it right — in order to decide on sentencing without offering guidelines for doctors on how to make a determination of incapacitation in domestic violence cases.

[21]     So, in light of this evidence, I conclude that it would be unreasonable for you to seek protection from the authorities in Algeria, and as such, I find there is no adequate state protection.

[22]     Now, lastly, with respect to an internal flight alternative, you made it clear that the main problem in your relocation elsewhere in Algeria was not that your father would be able to find you anywhere you go, the problem is that you would have to live in Algeria as a single woman with no family support. You testified not being in contact with other family members living outside the capital, and that you had actually tried one time to reach out to your aunt for help because she lives in the desert of [XXX], but that she refused to help you. You have no family support available to you, and you explained that you had not worked since 2005, given that you were prohibited by your father from doing so. While I do note that you have a job in Canada, I will acknowledge the Canadian context and society to be different.

[23]     According to the objective evidence, women who try to relocate and live by themselves are mistreated in their new communities, and they expose themselves to gender-related risks, as they are seen as having poor morals. In addition, they usually face many challenges, including challenges in securing jobs and housing. To successfully relocate, women who are not accompanied by males need a strong network of relatives and friends in the new location, which you do not have. Often women running away from domestic violence end up living by themselves, and that is not something that can be done in Algeria. You are supposed to run to a family member.

[24]     So, based on this objective evidence, I find that the test for internal flight alternative fails on the second prong. I conclude that you do not have a viable internal flight alternative in Algeria.

[25]     In conclusion, after assessing all of the evidence, your testimony, objective evidence, your persona) evidence, I find that you would face a serious possibility of persecution should you return to Algeria based on your membership in a particular social group as a woman fleeing domestic violence and I therefore accept your claim.

[26]     That is it. Thank you, everyone.

[27]     And thank you for your patience. And congratulations and wishing you an excellent weekend.

[28]     COUNSEL: Thank you. Bye-bye.

[29]     CLAIMANT (without interpreter): Okay, thank you. Bye.

[30]     MEMBER: Madam [inaudible] —

[31]     INTERPRETER: Bye-bye.

[32]     COUNSEL: Thank you, everyone. Bye, everyone. Have a great weekend.

[33]     MEMBER: Thank you. You —

REASONS CONCLUDED

Categories
Algeria All Countries

2019 RLLR 135

Citation: 2019 RLLR 135
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Diane Hitayezu-Fall
Counsel for the Claimant(s): Ameena Sultan
Country: Algeria
RPD Number: TB8-21381
ATIP Number: A-2021-00256
ATIP Pages: 0000102-000105


[1]       MEMBER: This is the decision for [XXX] and the file number is TB8-21381.

[2]       I have considered and applied the Chairperson’s Guideline 9 with respect to Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

[3]       I have considered your testimony and the other evidence I have in front of me and I have reached a decision. I find that you are a Convention refugee.

[4]       You are claiming to be a citizen of Algeria and you are claiming refugee protection under s. 96 and s. 97 of the Immigration and Refugee Protection Act.

[5]       You allege that you are a citizen of Algeria. You allege a fear of persecution in Algeria based on your sexual orientation. You identify as bisexual. In your words, you say that you identify as a man who has sex with men. You also alleged a fear of persecution because you do not believe in anything. You do not believe in Islam. And this puts you at risk in Algeria. You allege that if you return, the State or the police will not protect you because you are not a believer in Islam and you will not be protected because of your sexual orientation. You fear the police and the members of the public in general.

[6]       In terms of identity, I find your personal identity as a citizen of Algeria has been established by your testimony and your Algerian passport. I have a certified copy in Exhibit 1. So, I considered those, the documents, the passport and your testimony, and I find, on a balance of probabilities, that your personal identity and your national identity have been established and the country of reference has also been established as being Algeria.

[7]       I assessed your – the credibility also and I find that your testimony was straightforward and it was in keeping with the information in your basis of claim and there were no significant inconsistencies or omissions that went to the core of your claim. In general, I have found you to be a credible witness. So, therefore I accept what you have alleged in your oral testimony and in your Basis of Claim. The Basis of Claim is in Exhibit 2.

[8]       In support of your claim, you provided documentary evidence, confirming that some of your family members are aware of your sexual orientation and that you have discussed your sexual orientation with your doctor in Canada, that you have been attending [XXX]. And that’s who you identify as, a bisexual man or a man who likes to have sex with men.

[9]       These documents have been entered as exhibits in Exhibits 6 and 7. I note your brother [XXX] (ph.) wrote a letter saying that he knows about your sexual orientation, and [XXX] (ph.) from [XXX] wrote a letter confirming that you have been attending programmes at [XXX], an LGBTQ organisation in Toronto. And Julia tell us in her letter that you have shared your experiences as a bisexual man in Algeria with her and you have shared your experiences with the group at [XXX].

[10]     You have provided photograph of your current boyfriend in Canada and you have provided proof that you are active on dating sites. You showed me your profile on Bazoo, and I was able to verify, to confirm, your relationship with the person you showed me on pictures.

[11]     I note that I was concerned by the fact that you did not bring your boyfriend as a witness or I have not received any support letter from him. You explained that your relationship, although it is a romantic relationship, it’s still new and you were shy to ask.

[12]     So, after listening to your testimony, I find that your testimony and the documentary evidence establish, on a balance of probabilities, that you are a man who have [sic] sex with other men. So, I accept what you have alleged in your Basis of Claim.

[13]     I note that your claim was based on religious beliefs and sexual orientation. I assessed the aspect of sexual orientation; and as it disposes of your claim, I will not address the religious aspect in my decision.

[14]     So, I find that there is a link between what you fear and one of the five Convention grounds, specifically membership in a particular social group, gay men in Algeria.

[15]     I verified the objective evidence to see if your subjective fear was founded and I noted that the objective documentation supports your allegations, that individuals in your circumstances face persecution and discrimination in Algeria and they are subjected to violence, are shamed, and they risk to be arrested and sent to prison.

[16]     In the National Documentation Package in Exhibit 3, the National Package for Algeria, Document 6.1, it says that homosexual activities are criminalised. It says that Algeria has been rejecting recommendation to eliminate discrimination against LGBTQ community. And the same document and Document 2.1, the DoS Report for 2017-2018, this reports (inaudible) that people continue to be arrested for engaging in same-sex sexual activities. LGBTQ people suffer abuses from the police and they are discriminated against in health and employment. And Document 6.2, Response to Information Request, contains similar information, same information as in Documents 6.1 and 2.1 that same-sex activities are criminalised.

[17]     I note that your counsel has provided some evidence in Exhibit 5 and some articles were published in 2019 and they talk about LGBTQ people who were killed in Algeria.

[18]     So, I considered this objective evidence in conjunction with your allegations that I find to be credible and I find that the fear you expressed has an objective basis.

[19]     Therefore, I find that you have a well-founded fear of persecution.

[20]     I looked at State protection and I find that State protection would not be available to you, were you to seek it Algeria.

[21]     I refer to the objective documentary evidence, Document 6.2, the Response to Information Request. It contains information that victims, homosexual victims never report homophobic violence, as they are afraid of Algerian authorities. That was said by somebody who said “never.” But it says that acts of violence are not reported due to fear of the laws. And the same Response to Information Request contains information of incidents where people were caught and charged and were sentenced, were sentenced to spend time in jail and were fined. For instance, one was required to pay 20,000 dinars. And the same Response of Information [sic], talks about two young men, homosexual, who posted their relationship on Facebook and they were arrested and were sent to pre-trial detention.

[22]     So, and I find that as the State, the Government of Algeria and the police (inaudible) as homosexual sexual activities are criminalised in Algeria, it would not be reasonable for you to seek protection from the police or from any other authority.

[23]     So, in light of the objective country documentary [sic], I find that you have rebutted the presumption of State protection. And based on your personal circumstances as well as the objective documentation, I find that adequate State protection will not be available to you in Algeria.

[24]     I have also considered whether a viable internal flight alternative exists for you in Algeria. note that the country documentation indicates that the situation for individuals in your circumstances is the same throughout the country. The country documentation indicates that the attitude towards LGBTQ in Algeria is the same throughout Algeria; and SOGIT, the Guideline 9, paragraph 8.7.1 states that it is established in law that an internal flight alternative is not viable if an individual with a diverse sexual orientation or gender identity must hide their sexual orientation in order to live in that location.

[25]     So, I therefore find that you face serious possibility of persecution throughout Algeria based on your sexual orientation; and, as such, I find there is no viable internal flight alternative for you in Algeria.

[26]     So, having considered the totality of the evidence before me, I find you to be a Convention refugee. You have established that there is a serious possibility of persecution, based on your sexual orientation, if you were to return to Algeria.

[27]     I accept your claim.

DECISION CONCLUDED