Categories
All Countries Peru

2020 RLLR 58

Citation: 2020 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Selena Eng
Counsel for the Claimant(s): Richard Addinall
Country: Peru
RPD Number: TB8-18682
ATIP Number: A-2021-00655
ATIP Pages: 000194-000198


DECISION

[1]       MEMBER: This is the decision of the claim of the principal claimant [XXX] in file number TB8-l8682. The claimant is a citizen of Peru and is claiming refugee protection pursuant to Section 96 and 97 and the Immigration and Refugee Protection Act.

[2]       The facts and evidence alleged in support of the claim are set out in the claimant’s respective Basis of Claim form. In summary, the claimant fears harm in Peru from his ex-partner on the basis of his sexual orientation as a gay man. I have determined that the claimant is a Convention refuge or a person in need of protection pursuant to Section 96 and subsection 97(1) of the IRPA.

[3]       In making this assessment, I have considered all the evidence, including the oral testimonies, the documentary evidence, and counsel’s submissions, and the documentary evidence.

[4]       The claimant arrived in Canada with a fraudulent [XXX] passport. The claimant testified that he paid a [XXX] smuggler for the documents to come to Canada, as it was easier to go through [XXX] than to apply for a [inaudible]. The claimant provided a Peru issued national identification card to verify his Peruvian identity when he entered Canada. I find the claimant’s testimony regarding his identity and how he was able to come to Canada to be credible. I find, on a balance of probabilities, that the claimant’s identity was established by the certified true copy of his Peru issued national identification card and accepts that the claimant is a citizen of Peru.

[5]       Regarding credibility, in the assessment of this claim, I have taken into consideration the Chairperson’s Guideline that deals with the assessment of claims from persons who are members of the LGBTQI community. They are also referred to as the SOGIE Guidelines. I find that the claimant testified in a straightforward fashion with regards to the central elements of the claim. I find that the claimant’s overall testimony was credible.

[6]       The claimant testified about identifying and living as a gay man in Peru. The claimant testified about meeting his ex-partner in [XXX] 2017, moving in together in [XXX] 2017, and about his partner becoming increasingly jealous, possessive and accusing him with being with other men, as well as beating him, especially when he was drunk. I also heard testimony regarding the partner’s harassment of the claimant at his workplace [XXX], and that a restraining order was obtained, that did not deter the ex­ partner from finding him at the [XXX].

[7]       The claimant testified about an incident on [XXX] 2018, when his ex-partner threw a stone at his head, opening up his skin, along with breaking a bottle over the head and also kicking and punching the claimant while threatening his life. The claimant testified about going to the hospital and obtaining treatment. He also filed a police report at the station and indicated the police made fun of him for deciding to become gay and told him to go back to his husband and cook for him. The claimant testified about the police telling him that they would investigate, but the claimant did not hear back from police despite following up a week later. The claimant testified about forcing his ex-partner to leave his apartment for good, around [XXX] 2018. The claimant testified about an incident where he was waiting at a bus stop on [XXX] 2018, when he was kidnapped by four men, including his ex-partner. The claimant was beaten, cut, and raped by his ex-partner and the men. The claimant testified that he woke up in a hospital and was advised that- by a nurse -that a lady had found him and brought him there. The claimant remained in hospital for two days, and did not return to his place of rental or his apartment unit when he left and, instead, he went to the home of the [XXX], where he worked, for help.

[8]       The claimant also testified about his ex-partner having many friends in the police force and being afraid to go to police.

[9]       The claimant testified that he was estranged from father and other family members, and that is the reason why he went to the couple that [XXX] for help. The claimant testified they assisted him with obtaining money and helping him to go to [XXX] to come to Canada, where he was told by his other gay friends that he could obtain protection.

[10]     The claimant went to [XXX] to obtain his travel documents before arriving in Canada to make a refugee claim.

[11]     Regarding the claimant’s supporting documents, he has provided several of them that are on file. A police report dated [XXX] 2018, noted that the claimant filed a corn plaint against his ex-partner, attacking him when he attempted to terminate their relationship due to the increase psychological and physical abuse. The report states that the claimant had punches to the face and kicks, a bottle being broken over his head, as well as threats from the ex-partner that he was going to kill him. The report noted that the claimant was brought to the hospital by ambulance. There was also a medical report indicating that the claimant was treated in an emergency unit for a [XXX], on [XXX] 2018. Another medical report notes that the claimant was treated on [XXX] 2018, for [XXX]. The claimant also provided letters from friends in Peru who attested to witnessing verbal and physical abuse against the claimant by his ex-partner. I find that the reports corroborate the claimant’s testimony regarding the threats and attacks by his ex-partner, and the medical treatment he received. I find that the claimant was attacked on more than one occasion and required medical treatment. I find that the claimant’s concerns were not addressed by police, and that the claimant has established his subjective fear of persecution in Peru.

[12]     Regarding the claimant’s identity as a gay man, I note that he had a daughter with a woman in Peru. The claimant testified he was very young when he had sex with woman one time, when they were both drinking and celebrating the end of school. The claimant testified he did not find out about his daughter until she was one-years old and has not had any contact with them since his daughter was four. The claimant testified about being attracted to men and only in relationships with men. The claimant provided a [XXX] report from a hospital, dated [XXX] 2018, which indicates he was experiencing [XXX], and [XXX] to his sexual orientation. The report notes that the claimant was receiving [XXX]. The claimant also provided letters from friends from Peru and Canada that speak to his sexual orientation as a gay man. The claimant also had newcomer orientation training record, dated [XXX] 2018, for the 519 Organization in Toronto, dedicated to advocacy inclusion for the LGBTQ communities in Toronto. I find that the claimant testified in a credible and straightforward manner, and accepts the claimant’s explanation as to why he had sexual relations with a woman which resulted in the birth of a daughter, despite identifying as a gay man and being attracted to men. I find that the claimant has established on a balance of probabilities that he is a gay man and that he has a subjective fear from his ex-partner in Peru.

[13]     Regarding the claimant’ s failure to claim refugee status in [XXX], the claimant was asked why he didn’t want to apply for refugee or more permanent status there. The claimant testified that it was his goal to come to Canada because he heard it was more friendly to the LGBTQI community, and that he only entered [XXX] to obtain the documents to come to Canada. Based on the evidence before me, I find that the claimant did not have permanent status in [XXX] and was only present in [XXX] as a transit to Canada. I do not find that the claimant’ s lack of applying for refugee status in [XXX] undermines the credibility of his claim. Regarding the objective basis and country conditions in Peru, I find that there is general, widespread corruption within the police and judiciary in Peru. The 2020 Freedom in the World report for Peru indicates that government corruption remains a critical problem in the country. The law enforcement authorities frequently investigate and persecute corruption allegations. On the issue of the application of the rule of law, the report found that the judiciary is perceived as one of the most corrupt institutions in the country. The report also found that constitutional guarantees of due process are also unevenly upheld.

[14]     With regards to country condition for LGBTI, or lesbian, gay, bisexual, transgender and intersex individuals, the United States Department of State’s Country Report on Human Rights Practices for 2019 for Peru, or the D-O-S report, DOS report, indicates that the law in Peru recognizes the right of individuals to file legal claims of discrimination based on sexual orientation or gender-identity. However, the DOS report noted that the government officials, non-government organizations, or NGOs, journalists and civil society leaders, reported widespread official and societal discrimination against the LGBTI persons in employment, housing, education and healthcare, based on sexual orientation or gender-identity. NGOs also reported an increase in forced or coerced conversion therapy in Peru.

[15]     Increasing LGBTI rights in Peru is also moving slowly. In the National Report 2017 submitted to the Human Rights Council for Peru, it was noted that the National Human Rights Plan for 2017 to 2021 was to include special protections to be included for LGBTI persons. It was noted that the national human rights coordinator that ail mention of protection on the grounds of sexual orientation and gender-identity have been removed from Peru’s National Plan for 2014 to 2016, despite LGBTI groups having participated in its preparation. The document notes that the new National Human Rights Plan for 2017 to 2020 was under consultation and there continued to be challenges with the coordination, implementation, monitoring and evaluation of plans.

[16]     The US DOS report also further indicates that NGOs continue to report that law enforcement authorities repeatedly fail to protect and often even violated the rights of LGBTI citizens. The United Nations Human Rights Council Compilation on Peru further cited concerns at reports of harassment and violent attacks, some of which had resulted in death against the lesbian, gay, bisexual and transgender community, by members of the national police, armed forces, municipal security patrols and prison officials. I find that there is objective basis for the claimant’s fear of his ex-partner as an individual belonging to the LGBTI community, and that he has a well-founded fear of persecution in Peru.

[17]     Regarding state protection, there is a presumption that countries are capable of protecting their citizens. The claimant bears a legal burden of rebutting the presumption that adequate state protection exists by educing clear and convincing evidence which satisfies on a balance of probabilities. I’ve reviewed the country conditions set out in the National Documentation Package and find that the claimant has rebutted the presumption of state protection with the evidence provided.

[18]     I find that, in the claimant’s circumstances, the state has not been willing or able to protect him. I find that the claimant’s ex-partner attacked the claimant causing injury that required hospital care. Despite the attack, I heard evidence that police did not take the claimant’ s complaint seriously, instead making fun of the claimant for being gay. I find that the police in this case had the information of the identity of the perpetrator, but nothing was done, even after the claimant followed up with police. The claimant’s ex-partner was not arrested or charged for the attack or the death threats against the claimant. I also heard evidence of the claimant’s ex-partner being able to continue to move freely in Peru. Subsequently, the claimant was attacked, threatened, and raped by his ex-partner and other men. I find that, on a balance of probabilities, that the claimant’s ex-partner has continued interest in the claimant and would continue to seek him out, should the claimant return to Peru. Based on the documentary evidence, there has been a Jack of effective implementation of protection for LGBTI individuals in Peru. I find that the documentation does not indicate protections to be adequate at the operational level for LGBTI individuals. I do not find the claimant’s return to Peru would allow him to obtain justice against his ex-partner, or the claimant would receive further protections or assistance from police, should he continue to face threats or attacks. The assumption that the claimant will be able to receive meaningful protection in Peru from the state is contradicted by the country conditions evidence. I am satisfied that the claimant has rebutted the presumption of state protection.

[19]     Regarding internal flight alternative, the question of whether an internal flight alternative exists is an integral part of the Convention refugee definition. It arises when a claimant, who otherwise meets all elements of the Convention refugee definition in his or her home area of the country, nevertheless, is not a Convention refugee because a person has an IFA elsewhere in that country. I find that the claimant’s ex­ partner is a violent person who has demonstrated continued interest in the claimant after their breakup, going so far as to kidnap him with additional friends to attack him, after they broke up. I also find the claimant testimony regarding his ex-partner’s ability to continue moving freely and threatening him in Peru, to be credible and supported by the evidence provided. I find that the claimant, as a gay man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police. I also heard evidence of the claimant’s ex-partner has friends in the police force, and he would be able to pay bribes to locate the claimant wherever he went in Peru. I find that the issues with receiving protection from the state for LGBTI individuals, who are [inaudible] by police, appears to be present throughout Peru. As the claimant has rebutted the presumption of state protection and because the agent of persecution has shown motivation to continue to track the claimant, I do not find the claimant has a viable internal flight alternative in Peru.

[20]     In conclusion. I find that the claimant has established a serious possibility of persecution in Peru from his ex-partner and based on a Convention ground, namely his sexual orientation as a gay man, and I accept the claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2020 RLLR 57

Citation: 2020 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: Deborah Coyne
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB8-17416
ATIP Number: A-2021-00655
ATIP Pages: 000189-000193


DECISION

[1]       MEMBER: These are the reasons in decision, for decision in the claim of [XXX] who claims to be a citizen of Kenya and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimant fears persecution due to her gender and her membership in a particular social group, as a woman facing risk of female genital mut-, mutilation and gender violence.

[2]       The Panel applied the Chairperson’s Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution in assessing the harm feared by the claimant.

Allegations

[3]       In her written and oral testimony, the claimant provided a very detailed account of entering into a forced marriage, enduring serious domestic violence, resisting her husband’s insistence that she undergo FGM and ultimately escaping from him and the va-, vigilantes he hired to ensure she complied but not before she was raped and violently assaulted. The police were of no assistance on at least three occasions when she approached them for help. Ultimately, she was able to obtain a TRV and came to Canada seeking refugee protection at the Port of Entry.

Determination

[4]       The Panel finds that the claimant is a member of, of a particular social group which is women at risk of gender violence and is therefore a Convention refugee under Section 96.

ANALYSIS

and Identity

[5]       The Panel was satisfied on a balance of probabilities that the claimant is a citizen of Kenya from the certified copy of her passport on the file.

Credibility

[6]       The claimant responded to all questions clearly and spontaneously in the English language. The Panel finds the claimant to be a credible witness. And her evidence was corroborated by and is consistent with the documents she submitted that the Panel finds credible. Notably, medical reports, statement of suppor-, statements of support and some photographs.

[7]       The Panel makes the following findings on a balance of probabilities. The claimant was born into the Kisii tribe in Kenya in which FGM is still practiced in young girls and women along with other traditional customs. For example, after her father died, his brother inherited the claimant’s mother as his wife. Her mother was forced to marry her brother-in-law who then insisted that her mother undergo FGM.

[8]       The claimant successfully pursued studies and became [XXX] and her step-father found a way to send her to study [XXX] at the [XXX] from 2008 to 2012. When she returned to Kenya, she started working at the [XXX]. In or about 2013 and 2014, she discovered to her horror that her step-father had promised her in marriage to a man who had secretly funded her university studies in the Philippines.

[9]       A summary of the next traumatizing fours years are set out in persuasive detail in the claimant’s written narrative. The claimant was forced into the marriage in [XXX] 2015, raped brutally by her husband and ordered to undergo FGM. Shortly after the marriage, she reported her spousal rapes and violence to the Nakuru Central Police Station at the suggestion of her doctor. The police mocked her and said that alleging spousal rape was a waste of their time. The FGM was scheduled for [XXX] 2015. The claimant escaped from her husband and the vigilantes he hired to ensure that she underwent FGM. She moved around and worked in different places. For example, Nairobi, Nakuru and then Kibera where she stayed with her aunt. The claimant went to the police again in or about [XXX] 2016 when she was forced to return to her husband but managed to escape again. They told her that resisting FGM was a family matter but that she should go to the Anti-FGM Organization. The claimant went to get help from the Anti-FGM Organization but had to find money to hire a lawyer.

[10]     Among other things, she lived undercover by wearing a burqa in [XXX], about [XXX] kilometres away from Nairobi. In [XXX] 2017, while she was recuperating from an [XXX] she was discovered by the vigilantes, raped and seriously injured. She went to the police. A detailed copy of the report is found in Exhibit 5. And there was also other documents such as the [XXX] dated [XXX] 20th, 2017 and so forth. After this ordeal, she was advised by her friend [XXX] who had witnessed the attack on her by the vigilantes to leave the country and she applied for her T-, TRV. She falsiv-, she falsified the existence of a common-law husband and a child and some other documents to ensure that she was accepted. I also note that there were corroborative affidavits for most of the incidents from her friend [XXX], her aunt [XXX], her mother, [XXX] and another childhood friend. All of these are in Exhibit 5.

[11]     So, on a balance of probabilities the Panel accepts that the claimant has a subjective fear of persecution because of her membership in a personal social group, women at risk of gender violence.

[12]     So, now I’m going to turn to the objective basis. The claimant testified that the traditional practice of FGM is rooted in Kenyan culture and the Kisii tribe. The United States Department of States, State report called the DOS report for 2018 on Kenyan human rights notes that human right issues in the country including the lack of accountability in many cases involving violence against women including rape and FGM.

[13]     Authorities cited domestic violence as a leading cause of preventable and non-accidental death for women during the year. Except in cases of death, police officers generally refrain from investigating domestic violence which they consider a private matter. With specific reference to FGM, the DOS report indicates and this is in, oh this is in still in 2.1, the law makes it illegal to practice FGM, procure the services of someone who practices FGM or send a person out of the country to undergo the procedure. The law also makes it illegal to make derogatory remarks about a woman who has not undergone FGM.

[14]     Government officials often participated in public awareness programs to prevent the pra-, the practice. Nevertheless, individuals practiced FGM widely particularly in some rural areas. According to a study by ActionAid Kenya published in October despite the legal prohibition on FGM, mis-supported the practice-, supporting the practice remain deep-rooted in some local cultures. The study concluded approximately 21% of adult woman have undergone-, had undergone the procedure some time in their lives. But the practice was heavily concentrated in a minority of communities.

[15]     The DOS report further states that there were also reports the practice of FGM increasingly occurred underground to avoid prosecution. The May 2018 report entitled Kenya and the Law of FGM which is Exhibit 5.10 states as follows FGM in Kenya continues to be carried out predominantly by traditional circumcizers for 74.9% of girls age 0 to 14. And 83.3% of women aged 15 to 49. There has been some concern over the increasing medicalization of FGM in Kenya. In recent years however, with claims that its risen to as much as 40 per-, 41% in some areas. And that medical professions-, professionals are performing FGM in homes, hospitals or temporary clinics.

[16]     According to the UK Home Office and this is exhibit or, sorry Item 1.4 of the NDP for Kenya, women and girls in Kenya in fear of FGM forma particular social group within the meaning of the refugee Convention. And it further reports that although it is against the law and in decline, FGM continues to be practiced in Kenya among most ethnic groups to varying extents. The report indicates that communities that practice FGM report a variety of social and religious reasons for continuing with it. Deeply-rooted customs linked to social and economic benefits are associated with FGM.

State Protection

[17]     The agents of persecution in Kenya are the claimant’s husband and his extended family and the vigilantes he hired to pursue the claimant. As noted above, the claimant approached the police with complaints and requested help on at least three occasions and was turned away. An extensive report entitled FGM in Kenya, this is Item 5.3 it’s dated 2016 so it’s actually longer than a sequel to it which is, was done in 2018. However, it, it finds that “While there has been progress in both legal and policy frameworks, implementation and enforcement remain a challenge largely due to a lack of resources, difficulties reaching remote rural areas and the limited capacity of law enforcement agencies”.

[18]     This is enforcing the Anti-FGM legislation and, and policies that are technically in place. The report further finds that there have been few prosecutions and low conviction rates across the country. Often even if survivors do report FGM they fail to attend court to give evidence. Finally, the report finds that intimidation and fear help to keep the practice secret and cases unreported.

[19]     Item 2.3 which is the 2018 Freedom of the World report for Kenya indicates that corruption continues to plague national and county governments in Kenya. And State institutions tasked with combating cor-, corruption have been ineffective. Item 2.5 which is the 2017-2018 Amnesty International report indicates that the authorities continue to use legal and administrative measures to restrict the activities of civil society organizations working on human rights and governance.

[20]     And finally, according to the 2019 Human Rights report which is Item 2.2, women are also vulner-, vulnerable to abuse from the State security forces that should be there to protect them. The Watch report, the Human Rights Watch reports further indicates that the Jack of accountability for serious human right violations perpetrated by security forces remains a major concern in 2018.

[21]     So, the Panel finds on a balance of probabilities and in the particular circumstances of this case, that the objective country evidence supports the conclusion that the Kisii tribe and the Kenyan government and security forces are too often complicit in the gender violence experienced by the claimant. The claimant has provided clear and convincing evidence that the State is unable or unwilling to protect her. Accordingly, the claimant has successfully rebutted the presumption of state protection.

Internal Flight Alternative

[22]     The claimant testified that she would be at risk in all regions within Kenya. And that her husband and his vigilantes might have the means and motivation to seek her out wherever she might live and work. The evidence that the Panel found credible indicated that her husband was able to find her on several occasions as she sought to escape him after their marriage. The Panel finds that relocation within Kenya would be unreasonable in the claimant’ s circumstances. And the Panel further finds that there is no viable IFA where the claimant could reside safely.

[23]     So, in conclusion the Panel finds that the claimant is a member of a personal, particular social group which is women at risk of gender violence. And is therefore, a Convention refugee.

———- REASONS CONCLUDED ———-

Categories
All Countries Czech Republic

2019 RLLR 147

Citation: 2019 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2019
Panel: H. Ross
Counsel for the Claimant(s): Howard Gilbert
Country: Czech Republic
RPD Number: TB6-04818
ATIP Number: A-2021-00655
ATIP Pages: 000040-000051

REASONS FOR DECISION

[1]       [XXX], the principal claimant, [XXX] and [XXX] (a.k.a. [XXX]) claim protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1

[2]       In accordance with Rule 55 of the Refugee Protection Division (RPD) Rules the claims were heard jointly,2 with the principal claimant being designated the representative for the three minor claimants.3 

ALLEGATIONS 

[3]       The claimants rely on the allegations set out in the narrative portion of the principal claimant’s Basis of Claim Form (BOC)4. Briefly, the claimants allege a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity. They claim to be afraid of the ethnic Czech population, racist elements in Czech society, namely, skinheads and the police. The claimants also state that they do not have a reasonable expectation of state protection, as whenever they have made attempts to obtain state protection, the police did not respond to their attempts. 

DETERMINATION 

[4]       For the following reasons, the panel finds that the claimants are Convention refugees. 

ISSUES 

[5]       The determinative issue in the claim is credibility. At issue also is the claimants’ delay in claiming protection, and their failure to claim protection in the United States (US). 

ANALYSIS 

Identity 

[6]       The panel finds that the claimants’ identities as nationals of the Czech Republic are established by the copies of their passports, found in Exhibit 1.5 

[7]       The panel also finds that the claimants’ ethnic profiles as Roma persons is satisfactorily established on the basis of the principal claimant’s testimony, the attestation from the Roma Community Centre,6 and also by the fact that during the hearing, interpretation services were provided using the Romungro dialect of the Roma language. 

Credibility 

[8]       In assessing the credibility of the claimants’ allegations of discrimination, the panel noted that there were several issues relevant to the assessment, namely the principal claimant’s failure to claim protection in US, his re-availment of the protection of the Czech Republic, and his delay in claiming protection once the claimants arrived in Canada. The panel considered each of these issues in turn. 

Delay in claiming 

[9]       The claimants arrived in Canada on [XXX] 2016, and made claims for protection on or about [XXX] 2016.7 A witness, [XXX], was called to explain the delay in claiming.8 She provided a number of reasons for the delay, including that she had to meet with the claimants several times before the forms were completed. The panel considered her evidence, as well as the length of the delay in assessing the impact of the delay on the claimants’ credibility. The delay is was six weeks. The panel concluded that when the totality of the circumstances is considered, a six-week delay is not so lengthy as to seriously impugn the credibility of the claimants. 

Failure to claim elsewhere/re-availment 

[10]     The principal claimant travelled to the US in 2012, but did not make a claim for asylum. He testified that having travelled to the US on a temporary work programme, and being alone in the US, he only wanted to return to his family. He explained that had he claimed asylum in the US, he likely would have been separated from them for a long time, something that he did not want to do. 

[11]     Counsel submitted that the principal claimant had provided a reasonable explanation for his failure to claim asylum in the US, and why he returned to the Czech Republic. On considering the principal claimant’s explanation, the panel concluded that the explanation was credible, in the circumstances of the family being a young family. Accordingly, the panel finds that the credibility of the principal claimant was not undermined by the fact that he did not claim protection in the US and returned to the Czech Republic. 

Did the claimants experience discrimination? 

[12]     In their BOC, the claimants alleged a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity.9 In their amended narrative, they detailed their living circumstances which they described as poor and crowded.10 The settlement in which they lived was primitive, its roads were unpaved, there was no running water, garbage pickup was sporadic. In addition, the settlement was not serviced by public transportation. The claimant alleged that conditions in similar Czech communities was radically different from those in the Roma settlement. The principal claimant testified that he made several attempts to find alternate housing through government agencies, but was turned down at each attempt. 

[13]     The principal claimant testified as to the difficulties he and the other claimants encountered in public places and in obtaining publicly-available services. His cited incidents where he and his family were refused service in restaurants, followed in stores, as well as being attacked and beaten on public transit. Although the claimants turned to the police for assistance, the police did not act on their reports. 

[14]     In response to the panel, the principal claimant described the following incidents of discrimination: 

a) being refused employment that had been promised to him through agent; 

b) being refused public housing although such housing was available; 

c) being constantly humiliated in public spaces, particularly in shops where the family was followed; and 

d) the family was refused service in restaurants. 

[15]     The principal claimant alleged that the family’s Roma ethnicity was the sole reason for the discriminatory treatment meted out to him and the associate claimants. 

[16]     In the instant case, the discriminatory acts include being refused employment some 30-40 times. The principal claimant alleged he had been unemployed since 1998.11 He testified that he made some 30-40 unsuccessful attempts to finds work. As he did not speak the Czech language well, a Czech speaking friend would call the prospective employer on his behalf. Assured that there was work to be had, the principal claimant would then report to the workplace. Invariably, he would then be told that there was no work. The principal claimant cites this situation as an example of anti-Roma racism. The panel is not entirely persuaded of his position, because it can be argued that the employer never agreed to hire the principal claimant. He was intending to hire the Czech speaking person to whom he spoke. Put simply, the principal claimant was not the person the employers were expecting. In the result, the panel is not persuaded that the principal claimant’s ethnicity was the only deciding factor at play. 

[17]     With respect to their treatment in the public sphere, the panel finds that following the claimants while they shopped and refusing entry into restaurants, without justification, are clearly discriminatory acts. 

[18]     The principal claimant also described the following incidents: 

• in the summer of 2015, an ice cream parlour refused to serve his wife and son; 

• that same summer, the principal claimant’s mother and son were ejected from coffee shop; 

• substandard medical care – Roma forced to wait or pay for services that should be free; 

• intimidation by skinheads – in [XXX] 2013 about 80 skinheads marched through their community, screaming insults and beating Roma. The police took no action when complaints were made, although the complainants were able to describe their attackers; and 

• in [XXX] 2014, the principal claimant and his spouse were attacked in a similar fashion. They went to a hospital and after a three to four hour wait, they were told that the doctor was too busy to see them. They went to the police station where they made a complaint. When they followed up two weeks later, the police informed them that the case was closed due to a lack of information. 

[19]     The panel finds that these actions are all clearly discriminatory in nature. In fact, the [XXX] 2013 incident is clearly of a criminal nature. 

The documentary evidence 

[20]     The Board’s documentary evidence stated that racial discrimination is widespread in the Czech Republic. The Report of the Czech Ombudsman Office cites the following statistic: 

Racial or ethnicity-based discrimination is perceived as the most frequent type of discrimination in the Czech Republic. Almost two thirds of respondents believe it is widespread, one fifth even believes it is extremely widespread.12 

[21]     With respect to the perception of how readily redress for discrimination is available, report goes on to note that: 

[t]he respondents are very sceptical in rating the chances of the victims to assert their rights. Only 15 % believe that it is easy to get help for the victims of discrimination; and only 2 % of the respondents find the redress very easy. On the other hand, three quarters of the respondents think that it is difficult to invoke their rights, and more than one quarter consider it to be very difficult.13 

[22]     The US Department of State (DOS) Country Reports on Human Rights Practices for 2018 in the Czech Republic, identifies “crimes involving violence or threats of violence” against members of the Roma population as among the human rights issues prevalent in that country.14 Amnesty International makes specific reference to the ruling of the police in the death of a Roma man who died while being restrained by municipal officers and employees of a pizzeria as a result of his allegedly aggressive behaviour.15 The police discontinued their investigation finding that no crime had been committed. 

[23]     In its latest report, the US DOS states the following regarding the treatment of Roma persons: 

National/Racial/Ethnic Minorities 

There were approximately 300,000 Roma in the country, and many faced varying levels of discrimination in education, employment, and housing and have high levels of poverty, unemployment, and illiteracy. 

Hate crimes against Roma continued to be a problem… Observers reported hate crimes are not sufficiently recognized by police, prosecutors, and judges, who often lacked will or adequate knowledge. 

[… ] 

Despite legislative measures aimed at desegregation of Roma in education, according to a Ministry of Education study, more than 29 percent of students in special schools were Roma, compared with 3.6 percent in regular elementary schools. After the introduction in 2017 of a free compulsory year of preprimary education at the age of five to six years old, the enrollment of Romani children in kindergartens increased slightly but remained markedly below the levels for non­ Romani peers. To support desegregation of Roma in schools, the government increased funding to provide additional support to students with special needs in mainstream schools. 

Approximately one-third of Roma lived in “excluded localities” or ghettos. While the law prohibits housing discrimination based on ethnicity, NGOs stated that some municipalities discriminated against certain socially disadvantaged groups, primarily Roma, basing their decisions not to provide housing on the allegedly bad reputation of Romani applicants from previous residences. 

The 2017 amendment to the law on persons with material need, which was intended to solve housing problems, in some cases had the opposite effect. The amendment allowed cities to declare certain areas as having an “increased occurrence of socially undesirable activity”. In such designated zones the government paid only a part of housing subsidies. Some cities started to use this instrument to get rid of Roma and other low-income citizens. 

In September the European Roma Rights Center criticized President Zeman for his negative statements on Roma and in an open letter called for his resignation. 

Zeman had stated that the unemployed persons in one of the country’s villages he visited were exactly the Roma who were forced to work during communism under the threat of imprisonment. 

Roma were the most frequent targets of hate speech on internet. 

In September the district court in Tachov fined a woman 20,000 koruna ($800) for posting threatening comments on the internet under a school photo of first graders from a local school. The children were mainly Romani, Arab, and Vietnamese, and the comments suggested sending them to gas chambers, shooting them, or throwing a hand grenade into the classroom. Police did not originally qualify the incident as a hate speech offense, but the supreme prosecutor requested a further investigation that led to the conviction.16 

[24]     The panel takes the documentary evidence to indicate that, in the Czech Republic, there is widespread discrimination against Roma persons. The panel finds that the claimants have clearly experienced discrimination. 

Discrimination as opposed to persecution 

[25]     The issue for this panel is whether the discrimination these claimants experienced in the Czech Republic has risen to the level of persecution such as to bring them within the Convention refugee definition. Counsel for the claimant took the position that it has. He described the situation for Roma in the Czech Republic as being dire. He argues that the discrimination that Roma, in general, and the claimants in particular, experience in the Czech Republic has risen to the level of persecution. 

[26]     The United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines discusses the issue of discrimination, noting the following: 

54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. 

55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.17 

[27]     The UNHCR document provides guidance in the determination of whether the experiences of a claimant have, cumulatively, risen to the level of persecution. The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook, affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution, it is necessary to “evaluate the claimant’s personal circumstances and vulnerabilities including age, health, and finances … “18 

[28]     The principal claimant’s personal circumstances include a low level of education, limited employment prospects, and limited finances. Balanced against these are the facts that he is relatively young ([XXX]), and in good health. This is also true of the female claimant. 

[29]     The claimants allege, and their counsel submits, that the measures of discrimination they faced in the Czech Republic has led to consequences of a substantially prejudicial nature for them, namely serious restrictions on their access to normally available educational facilities and their right to earn their livelihoods. In addition, counsel submits that, as Lovari, the claimants are made particularly vulnerable to discrimination. While conceding that many Roma are well integrated into Czech society, counsel described the [XXX] as being among the most excluded group of Roma in the Czech Republic. He stated that they, along with the [XXX], tended to live in isolated communities and were susceptible to the types of discriminatory practices the documentary evidence speaks to. 

[30]     In its report, Freedom House, estimated that the size of the Roma population in the Czech Republic was about 250,000 persons.19 Freedom House stated that Roma face “occasional threats and violence from right-wing groups.”20 

[31]     The panel finds the two reports to be reliable, as the information they contain originates from sources that have an awareness of the situation of Roma in the Czech Republic. The sources cite information from NGOs and appear to be unbiased. Moreover, while the two reports are distinct, they contain and confirm substantially similar information. The panel gives significant weight to this objective information. 

[32]     Nonetheless, in assessing whether the discrimination the claimants experienced has risen to the level of persecution, the panel is mindful of the dicta of the Federal Court in Liang, regarding the necessity of evaluating a claimant’s personal circumstances and vulnerabilities including age, health, and finances when determining whether cumulative discrimination and harassment constitutes persecution.21 

[33]     The principal claimant’s personal circumstances are that: 

• he is from one of the groups of Roma that are not integrated into Czech society; 

• he lacks much formal education, does not speak the Czech language well, and has considerable difficulty finding employment; 

• he is relatively young, with a growing family; and 

• he and his family members have personally suffered a number of racist incidents, including witnessing an intimidatory march of skinheads through their community and an attack by skinheads in [XXX] 2014. 

[34]     In considering whether the incidents of discrimination amount, on a cumulative basis, to persecution, the panel is not persuaded that being refused service at an ice-cream parlour or being asked to leave a café amounts to persecution. Unpleasant yes, embarrassing, yes, but these appear to have been isolated incidents for which there may or may not be other explanations, which were not disclosed to the panel. 

[35]     The march through the claimant’s community was patently intended to frighten and intimidate all of the Roma in the community. The DOS Report indicates that: 

Human rights issues included crimes involving violence or threats of violence against members of the Romani minority. 

The government took steps to prosecute and punish officials who committed abuses in the security services and elsewhere in the government.22 

[36]     In the panel’s view, this speaks to the willingness of Czech authorities to investigate and prosecute offences against the Roma and other minorities, which is at odds with the claimants’ position that state protection will not be available to them. 

[37]     The result is that it is not clear to the panel that the incidents of discrimination the claimants complain of rise to the level of persecution. At the same time, the panel is also mindful of the statements in paragraph 55 of the UNHCR Handbook relating to cumulative discrimination. In particular, the effect of the measures of discrimination on the mind of the claimants. In testimony, the principal claimant discussed the effect the various incidents have had on him. The panel found him to be largely credible, as he answered all questions put to him without seeming exaggeration or subterfuge. He expressed his apprehension of returning to the Czech Republic, and the certain discrimination he and his family would face. The panel is not an expert in [XXX] issues. However, it finds that, in all the circumstances of the case, including the principal claimant’s personal circumstances, the cumulative effect of the discriminatory incidents was that they have created a feeling of apprehension and insecurity in the mind of the principal claimant, as regards his future existence and that of his family if returned to the Czech Republic. The panel finds that this apprehension is not limited to their financial existence, as the principal claimant could go abroad to earn money as he has already done. 

The claims of the associate claimants 

[38]     As stated earlier, each associate claimant relies on the same set of circumstances as the principal claimant. The panel finds that they have established a nexus to the Convention refugee definition as members of a particular social group, namely, family members of the principal claimant, as well as by virtue of their Roma ethnicity. As such, the panel determines that the outcomes of their claims will be similar to that of the principal claimant. 

CONCLUSION 

[39]     For the reasons provided, the panel finds that there is a reasonable chance that the principal claimant would be persecuted on the ground of his Roma ethnicity if returned to the Czech Republic. The panel determines the principal claimant to be a Convention refugee. His claim for protection is accepted. 

[40]     The panel makes a similar determination with respect to the associate claimants. Their claims are also accepted. 

(signed) H. Ross 

January 7, 2019 

1 The Immigration and Refugee Protection Act, S.C.2001, c.27, as amended, sections 96 and 97(1).
2 Refugee Protection Division (RPD) Rules SOR/2012-256, Rule 55.
3 Ibid., Rule 20.
4 Exhibits 2, Basis of Claim Form (BOC)-TB6-04818.
5 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copies of Passports.
6 Exhibit 11, Personal Disclosure received July 19, 2019, at p. 1.
7 Exhibit 1, Package of Information from the Referring CBSA/CIC, Generic Application Form for Canada.
8 Exhibit 12, Personal Disclosure received July 19, 2019.
9 Exhibits 2-6, BOCs.
10 Exhibit 10, BOC Amendment.
11 Exhibit 1, Package of Information from the Referring CBSA/CIC, Schedule A Form.
12 Exhibit 7, National Documentation Package (NDP) for Czech Republic (March 29, 2019), item 13.4.
13 Ibid.
14 Ibid., item 2.1.
15 Ibid, item 2.2
16 Ibid., item 2.1.
17 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, NCR/IP/4/REV.1, Reedited, Geneva, January 1992, UNHCR 1979, at paras 54-55.
18 Liang. Hanquan v. M.C.I. (F.C., no. IMM-3342-07), Tremblay-Lamer, April 8, 2008, 2008 FC 450 [Liang], at para. 22.
19 Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.5.
20 Ibid.
21 Liang, supra, footnote 18.
22 Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.1.

Categories
All Countries Pakistan

2020 RLLR 56

Citation: 2020 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2020
Panel: R. Moutafova
Counsel for the Claimant(s): Peter J Wuebbolt 
Country: Pakistan 
RPD Number: TB8-13720
Associated RPD Numbers: TB8-13781, TB8-13786, TB8-13787
ATIP Number: A-2021-00655
ATIP Pages: 000177-000188


REASONS FOR DECISION

INTRODUCTION

[1]       [XXX] (father and a principal claimant), his wife [XXX] (mother and an associate claimant), and their two children [XXX] (the adult child-claimant) and [XXX] (the minor claimant), are citizens of the Islamic Republic of Pakistan (hereafter Pakistan). They are claiming refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act1, hereafter “the IRPA“.

[2]       The claims were heard jointly pursuant to Rule 55 (1) of the Refugee Protection Division Rules2.

[3]       The principal claimant was appointed as the designated representative for the minor claimant.

[4]       The Chairperson’s Guideline 43Women Refugee Claimant’s Fearing Gender-Related Persecution was used to help assess the circumstances of this claim that may affect findings of fact and findings of mixed fact and law.

Procedural history

[5]       The claims were heard on May 31, 2019, however the member of the Refugee Protection Division of the IRB did not render decision on the merits of the claims. The IRB decided to administratively re-hear the claims in a DeNovo hearing, presided over by another member of the Refugee Protection Division of the Board. This DeNovo hearing was held on September 17, 2020

DETERMINATION

[6]       The panel finds on a balance of probabilities that the claimants are Convention refugees on the grounds of their views on religion which places them as Members of a Particular Social Group. Their religious views are of moderate Sunni Muslims with humanitarian and liberal mindset, who do not support the Jihad and the fundamentalism in Pakistan, and who are against the religious extremists’ methods of suiciding attacks against their perceived enemies.

[7]       The reasons are as follows.

ALLEGATIONS

[8]       The complete story alleging the basis of the Claimants’ fear is captured in their Basis of Claim (BOC) forms4, and was expanded upon in testimony by the three adult claimants. In short, the claimants fear that they will be harmed or killed by religious extremists and fundamentalists in Pakistan stemming from their unsuccessful attempt to recruit the son of the family (the adult child-claimant) as a Jihadist solder and a suicide bomber.

[9]       Both parents are university educated individuals from Karachi. The family has only one son – the adult child-claimant, who is hafiz, a person who has memorised the Quran in Arabic language (the native language of the claimants is Urdu.). For this purpose, since the age of four he had attended a special religious school and had completed six classes, where he had studied also subjects from the general educational curriculum. He had obtained two Certificates for his achievements in the memorizing of the Quran.

[10]     Then he continued his education in a secular, international private school in Karachi. As a devoted Muslim, in performing his duties to volunteer and help those in need, and also to maintain his memory about the verses of the Quran, he attended the [XXX] 3 days at the end of each week. There he was teaching the Quran to younger children who were from poor families and were receiving free board, food and religious education in the [XXX] at the mosque. The adult child-claimant was also praying in this mosque with his father on the Fridays.

[11]     In the month of [XXX] 2017 several unknown and unintroduced men began appearing at the classes with the children (students) and began talking about Islam and about Jihad. They interpreted for the children some Qur’anic passages that refer to the Jihad and explained the meaning of the Quran as requesting the true Muslims to be part of Jihad. They spoke about the purpose in life as per the Qur’an and that being a better Muslim means fight against the non­believers like Christians, Ahmadi, Shia Muslims, etc. The men were not friendly, they tried to instill fear in the students and warned them to keep secret the meetings with the men and threatened them with death if they would dare to speak with anybody else about these teachings. The unknown men gave away written materials with information, purporting to be the right interpretation of the Qur’an and appealing to the readers to be true Muslims and followers of the Qur’an by joining Jihad.

[12]     These materials were found inadvertently by the mother of the adult child-claimant (the associate claimant) and alarmed her. She asked her son for explanation, but he was very scared and did not tell her anything about the source of the materials. She sent her husband (the PC) to the [XXX] to inquire what is happening and the source of the materials.

[13]     The father attended the [XXX] and was assured by the management that there is no danger of fundamentalism of the students there. However, the extremists continued to visit the classes in the [XXX] and the adult child-claimant became more and more scared with each visit. The mother continued to invite explanations from her son about the Jihad literature and he eventually confided what is going on. Thus, the parents prohibited their adult child-claimant to continue to teach in the [XXX], which was not taken well by the administration there.

[14]     The management of the [XXX] tried multiple times to pressure the claimants to send back their son and initially the claimants were providing medical-problem-excuses for their son not attending any more. Eventually they got the courage to state, that their son – the adult child­ claimant is not going to attend any mote and immediately they were threatened over the phone by the administrator of the [XXX]. They started receiving calls from unknow persons threatening that they will regret if disobey and do not send again the son back to the [XXX]. The claimants filed a complaint with the police on [XXX] 2018.

[15]     Further, the threatening phone calls continued and even on one occasion unknown people visited the family, angry from the disobedience to the orders the son to return to the [XXX]. They repeated the death threats against the entire family again.

[16]     Few days later, on [XXX] 2017 a stone with a life-threatening letter around it was thrown through the window of the claimants. The letter was accusing them as infidels, deserving to be killed, because they vive western education of their children and engage in un-Islamic activities. A second complaint was immediately filed with the police5, which did not investigate any of the complaints.

[17]     The adult child-claimant fell ill from fear. When recovered, he did not go any more to the [XXX], but he continued to attend his international high school. The commute to and back from the private school was arranged with a special school bus. Nevertheless, one day an unknown person attempted to pick up the boy after school. The security prevented the attempt and alarmed the administration and the family.

[18]     The Police refused to accept any more complaints and to be involved in a such religios issue, which they pretended to be a minor, unimportant dispute about the education of the son. Understanding that no protection is coming, the scared family moved immediately to Islamabad, where they stayed with a cousin. The threatening phone calls continued on the cell phone of the mother, insisting that the adult child-claimant get back to the [XXX]. The claimants arranged their travel to Canada and arrived on [XXX] 2018. They were planning that the PC would be able to make some alternative arrangements for their safe return and residence back in Pakistan.

[19]     The PC, who was working for the [XXX], and could not take a longer leave from his job, returned in Karachi on [XXX] 2018. He took precautious measures and stayed at his brother, visiting his home rarely only at night to pick documents and things of necessity.

[20]     Encouraged that everything seems calm, one night, on [XXX] 2018, the PC stayed in the house and on the next day, when leaving for his prayer, he saw many abusive slogans painted on the house. He left quickly for his brother, but on his way he was attacked and shot at by two individuals on a motorbike. The PC arrived back in Canada on [XXX] 2018 and the entire family applied for refugee protection three days later.

ANALYSIS

Identity

[21]     The panel finds, on a balance of probabilities, that all claimants have provided sufficient documentation to establish their personal identities and citizenship in Pakistan, based on their testimony and the certified true copies of their Government of Pakistan passports.6

Religious identity

[22]     The panel is satisfied that the mother and associate claimant are Shia Muslim and that the father and principal claimant are Sunni Muslim, based on the testimony of the adult claimants, the donation receipts from [XXX] and personal documents provided into evidence7. The claimants explained that they are cousins and the differences in their religious views have never been an issue, because the extended family has broad, liberal, humanitarian views on religion and on the individual liberty.

[23]     The panel accepts, on a balance of probabilities, that the adult child-claimant, is hafiz, a person who had memorised the Quran. He submitted two Certificates from the [XXX] from 2011 and 2012 for his achievements in memorization of the Holy Quran8. The claimant testified personally about his study experience and was able to demonstrate his knowledge by reciting verses from the Quran by heart in Arabic language. The panel is satisfied, on a balance of probabilities, that the adult child-claimant is a Sunni Muslim and hafiz.

NEXUS

[24]     The panel finds that the claimants are Convention refugees in that they have a well-founded fear of persecution from religious extremists due to their humanitarian and liberal religious views on Islam, and, thus, the nexus to the Convention is their membership in a particular social group.

CREDIBILITY

[25]     All three adult claimants provided testimony. The panel finds that the claimants are credible on the material aspects of their claims – specifically the panel finds that the adult child­ claimant is hafiz and that while teaching classes of poor children, boarding and studying in the local [XXX], he had been identified and targeted by extremists over a couple of meetings, who tried to pursue him to join Jihad and become a suicide bomber.

[26]     Generally speaking, the claimants’ testimony was direct, sincere, detailed and spontaneous. Overall, the panel did not find any contradictions, inconsistencies, omissions or implausibility regarding any aspects of their account which could have undermined the credibility of their statements. They provided many details of the events, that have led to their fleeing Pakistan. In coming to this finding on credibility the panel also considered the numerous claimant-specific documents tendered into evidence9 by the claimants to support their allegations, namely: school documents, reports to the police, First Information Reports to the police, affidavits from eye eyewitnesses of the kidnapping incident from the school, letters of support from family members, letters from [XXX] from Pakistan and from Canada about the affiliation of the claimants, birth and death certificates, employment history records.

[27]     The panel finds that the claimants were credible witnesses and did not find any discrepancies or inconsistencies between their testimony and the documents they submitted. The panel finds, that the evidence before the panel establish, on a balance of probabilities, that the adult child-claimant was a victim, together with the [XXX] boarding school children, of persuasion to join the Jihad and attempt to be recruited as a suicide bomber. When his parents intervened and stopped him from further attending the [XXX] and meetings with the religious extremists, the entire family was targeted for harm by the particular individuals, belonging to the religious extremists and fundamentalists in Karachi, Pakistan.

Objective basis of future risk

[28]     Based on the credibility of the claimants’ allegations, and the documentary evidence set out above, the panel finds that the claimants have established a future risk to their lives and that they will be subjected to violence at the hands of Islamic extremists in Pakistan, owing to their identities of mixed family of Shia and Sunni Muslim, who has liberal and moderate religious views and is against Jihad, promulgated by religious extremists and fundamentalists.

[29]     The objective documentary evidence that corroborate the allegations of the claimants are found in many documents: In item 1.18 of the NDP on Pakistan (NDP)10 the UK Home Office informs about the report of the UN Secretary General (UNSG) on Children and armed conflict, dated 16 May 2018, where is noted:

“The United Nations continued to receive reports of the recruitment and use of children, including from madrasas, and allegations of the use of children by armed groups for suicide attacks. In January [2017], TTP released a video showing children, including girls, being instructed in how to perpetrate suicide attacks.”

Further, the UK Home Office advises that According to the USSD human rights report for 2017:

“Nonstate militant groups kidnapped boys and girls and used fraudulent promises to coerce parents into giving away children as young as 12 to spy, fight, or die as suicide bombers. The militants sometimes offered parents money, often sexually and physically abused the children, and used psychological coercion to convince the children the acts they committed were justified. The government operated a center in Swat to rehabilitate and educate former child soldiers.”

[30]     The suicide attacks are already part of the contemporary mode of terrorism of the militant groups. Item 7.1 of the NDP about the Jaish-e-Mohammed (JeM) militant group in Pakistan from the Research Directorate of the Immigration and Refugee Board of Canada reports that JeM was the first jihadi organization to launch suicide attacks (…) in 2002. Sources indicate that the group’s attacks are aimed at killing the maximum number of people, including security force personnel and civilians, targeting the Pakistani state and sectarian minorities. Despite bans on JeM’s activities, the group continues to operate openly in different areas of Pakistan and has claimed to have 300 suicide bombers available to attack (…).

[31]     In a June 2010 article11, The Economist quoted a Lahore-based political analyst as saying that:

“[t]he Punjab government is not only complacent, there is a certain ambivalence in their attitude’ towards extremists…..They compete for the religious vote bank”‘ (The Economist 3 June 2010). The same source states that as the death toll grows, so do concerns that even the appearance of official tolerance gives these organisations legitimacy……The Federal Interior Minister, Rehman Malik, declared that an “operation” was needed to clear out the Punjabi groups. He claimed that 44% of Pakistan’s madrassas – Islamic seminaries – are based in south Punjab and that groups like (…..) Jaish-e­Mohammed are “part of the Taliban and al-Qaeda.”

Reavailment

[32]     The panel had concerns about the reavailment of the PC back to Pakistan after arriving in Canada and leaving his family here. The PC testified that he was having a lucrative employment in the [XXX] in Karachi and that he was not planning to seek refugee protection in Canada, when he fled Pakistan with his family after the incident, that looked like an attempt of kidnapping of his son. The PC testified that the family was planning to re-locate somewhere in Pakistan and he returned to maintain his job while obtaining re­ assignment or finding another solution for re-location. However, upon his return in Pakistan, although the precautionary measures, he became a victim of an assassination attack and his house was vandalized with abusive slogans with religious context. This made him re-assess the threats from the religious extremists and fundamentalists for the entire family and to find them real and inevitable. This is when he decided to seek protection from Canada.

[33]     The panel finds, on a balance of probabilities, that the explanations of the claimant were reasonable and credible and that in the circumstances, the PC’s individual return to Pakistan does not amount to re-availment demonstrating a lack of subjective fear.

State Protection

[34]     The claimants alleged that the state is unable or unwilling to provide them with adequate protection. The objective documentary evidence indicates that there is a lack of rule of law in Pakistan, including a lack of due process and a lack of government accountability. This means that abuse often goes unpunished, fostering a culture of impunity amongst perpetrators. The claimants have previously sought police protection in Pakistan, which was not provided to them due to unwillingness of the Police to be involved in such sensitive religious issue with violent agents of persecution/harm. The NDP contains numerous reports that outline deficiencies and inaction from state authorities in situations such as those, alleged by the claimants. There are reports that law enforcement authorities are often unwilling, or even when they are willing, are unable to protect from the attacks of religious extremists. Pakistani authorities have faced criticism for their failure to protect religious violence, for permitting militant organizations to operate with impunity, and for not investigating and punishing the groups responsible for violent attacks.12 The United States Commission on International Religious Freedom described the response of the Pakistani government as “grossly inadequate state protection for Shia Muslims.”13 That same report notes that “the government has proven unwilling or unable to crack down on groups that repeatedly plan, conduct, and claim credit for attacks, or prevent future violence.”14

[35]     Further the reports inform that:

“Pakistan’s police system suffers severe deficiencies in a number of areas, including equipment, technology, personnel, training, and intelligence capability. They are considered one of the most corrupt institutions in Pakistan. There have also been reports that the police have often failed to protect members of religious minorities, women and the poor.”15

[36]     In addition, the News International, a Pakistani newspaper, stated in a 3 March 2014 article that, according to the NISP, there are a total of 60 banned organizations in Pakistan, including JeM, and although the government has taken steps to ban certain organizations, “metamorphism” of these groups and “implementation gaps” remain a challenge for the government’s internal security mechanisms.

[37]     The panel, therefore, concludes that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

Internal flight alternative (IFA)

[38]     The panel inquired as to whether the claimants could relocate to Hyderabad or Multan, or DG Khan and live safely. The male claimant testified that nowhere is safe for them in Pakistan and they would be at high risk of harm by the extremist organizations who would try to hurt him and his family.

[39]     The panel finds that there is a well-founded fear of persecution which exists throughout the country, and there’s a serious possibility of persecution throughout Pakistan for the claimants. The conclusion is based not only on the statements by the claimants above, but also on evidence in the NDP, which indicates that, in general, an internal flight alternative would not be available where there is a likelihood that persons such as the claimants would be persecuted by extremists for their perceived un-Islamic position with respect to Jihad.

[40]     There are reports within the documentary evidence that given the wide geographic presence and reach of religious extremists or anti-Shia militant groups, a viable internal flight alternative would generally not be available to individuals at risk of being targeted by such groups, as is the family of the claimants, which is of mixed reldigion: Sunni and Shia Muslim and which opposed involvement of their son in Jihad. The panel finds that there is a serious possibility of the claimants being persecuted throughout the country given their profile and the reach of the agents of persecution.

[41]     Given the objective documentary evidence cited above regarding state protection and the claimants’ testimony the panel finds that there is no viable IFA for these claimants in Pakistan at this time.

CONCLUSION

[42]     Based on the analysis above and to the relevant provisions of IRPA, the panel concludes that the claimants do have a well-founded fear of persecution on Convention grounds and, therefore, are Convention refugees, within the meaning of section 96 of IRPA.

[43]     Therefore, the panel accepts these claims for refugee protection.

(signed)           R. Moutafova

October 9, 2020

1 Immigration and Refugee Protection Act, S.C. (2001), c. 27, as amended.
2 Immigration and Refugee Board, Refugee Protection Division Rules, SOR 2012/256.
3 Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the IRPA.
4 Exhibits # 2.1, 2.2, 2.3.
5 Exhibit # 8: Disclosure – Personal documents.
6 Exhibit # 4.1.
7 Exhibit # 8.
8 Idem.
9 Idem.
10 Exhibit # 3 – NDP on Pakistan, version from 31 March 2020.
11 Idem, item 7.1.
12 Idem, item 1.8: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017.
13 Idem, items## 12.5 and 1.22.
14 Idem, item 12.5.
15 Idem.

Categories
All Countries Rwanda

2020 RLLR 55

Citation: 2020 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: October 16, 2020
Panel: Tim Crowhurst
Counsel for the Claimant(s): El-Farouk Khaki
Country: Rwanda 
RPD Number: TB7-23803
ATIP Number: A-2021-00655
ATIP Pages: 000171-000176


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Rwanda, 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 alleges that he and his family are long time friends of Diane Rwigara, who ran for the Presidency of Rwanda in 2017.

[3]       The claimant alleges that he provided support to her campaign in the form of a vehicle, as well as providing signatures for her nomination form [XXX].

[4]       Shortly after the election, police arrested and detained the claimant for a period of about two weeks, during which he was tortured and psychologically abused.

[5]       Following his release, which was secured by a family member, police continued to visit his home and threaten the claimant and his parents.

[6]       The claimant’s parents fled to Kenya.

[7]       Prior to the arrest and detention, the claimant had already secured a student visa to come to Canada.

[8]       A relative then bribed a police officer and helped the claimant flee Rwanda and travel to Canada.

[9]       A friend of the family picked him up at the airport and helped the claimant recover from his injuries and find a lawyer in order to make a refugee claim.

DETERMINATION

[10]     The panel finds the claimant to be Convention refugee as he has established a serious possibility of persecution should he return to Rwanda, based on the grounds in section 96 of the Immigration and Refugee Protection Act (IRPA)

ANALYSIS

Identity

[11]     The panel finds that the claimant’s identity as a citizen of Rwanda is established by the certified true copy of his Rwandan Passport.2

Nexus

[12]     The panel find that the claimant has established a nexus to section 96 by reason of the claimant’s political opinion as a supporter of the Rwandan Opposition

Credibility

[13]     The panel finds the claimant to be a credible witness, and therefore believes what he has alleged in support of his claim. The claimant testified in a straightforward and concise manner during the oral hearing, testifying in English. The panel found that the claimant’s testimony was in no way inconsistent or contradictory with the documentary evidence, including the supportive objective evidence contained in the National Documentation Package (NDP).3

[14]     The claimant’s allegations of detention and torture at the hands of the Rwandan government, are consistent with information contained in the NDP document, excerpts of which are reproduced here for context.

“Treatment of Diana Rwigara’s Supporters After the August 2017 Electoral Period”

According to the German magazine Der Spiegel, Diane Rwigara’s supporters no longer dare mention their support for her in public (Der Spiegel 29 Apr. 2019). (…)the following information on the treatment of President Kagamé’s opponents in general may be useful.

In a telephone interview with the Research Directorate, an assistant professor at the University of Denver’s Josef Korbel School of International Studies who has conducted research in Rwanda, notably on the impacts of violence on women’s political mobilization, explained that, generally, opponents or critics of President Kagamé avoid expressing their views in public, even in a casual setting like a café or bar, for fear of being overheard by intelligence services or government informants (Assistant Professor 25 Apr. 2019). Similarly, in a telephone interview with the Research Directorate, an associate professor of development at the University of Ottawa’s School of International Development and Global Studies working on issues of governance in Rwanda indicated that the Rwandan government’s control apparatus is very developed, encompassing local forms of surveillance as well as informants in local governance structures (Associate Professor 2 May 2019). Similarly, in its Freedom in the World 2019 report, Freedom House states that “[t]he authorities reportedly use informants to infiltrate civil society, further discouraging citizens from expressing dissent” (Freedom House 29 Jan. 2019, sec. D4).

According to the US Department of State’s Country Reports on Human Rights Practices for 2018, laws prohibiting “divisionism, genocide ideology, and genocide denial” were broadly applied by the Rwandan government, including to silence political dissent and those critical of the government (US 13 Mar. 2019, 14). The Associate Professor added that the government has instituted a [translation] “legal control apparatus” such that accusations of “denial or criticism [of the official version] of the genocide” are often levelled against political opponents who may be imprisoned as a result (Associate Professor 2 May 2019). An article in the Wall Street Journal (WSJ), commenting on the treatment of certain opposition figures in Rwanda, also reports that the authorities used genocide denial charges to “silence … opponents” (WSJ 31 Oct. 2017).

According to the Associate Professor, those openly critical of the government or opposing the government and who hold [translation] “locally important” positions (for example, a local prominent citizen or teacher) are especially at risk of being targeted by these forms of surveillance and control and of being threatened, arrested or physically injured (Associate Professor 2 May 2019).

The Assistant Professor indicated that “even low members [of opposition parties] who try to run, for instance, in local elections,” as well as supporters of those opposition parties, risk being harassed by law enforcement, or arrested, and face risks of “disappearance, even murders”(Assistant Professor 25 Apr. 2019). According to the Assistant Professor, the consequences can also be material, such as confiscation of property by the government or expropriation (Assistant Professor 25 Apr. 2019). Similarly, the Wall Street Journal cites an exiled Rwandan economist as stating that the authorities have proceeded with “‘arbitrary'” seizures of businesses and properties based on accusations of financial crimes, such as tax evasion or fraud (WSJ 31 Oct. 2017).4

[15]     The claimant provided copies of his Facebook Messenger conversations5 with Diane Rwigara wherein she professes concern for the claimant’s wellbeing and is wary of having any conversations that may be monitored by the government.

[16]     The claimant has also provided documentary evidence of the Public Prosecutor6 granting provisional release as well as Minutes of Detention,7 which speak to the charges against him based on his political involvement.

[17]     The panel accepts, on a balance of probabilities, that the claimant’s allegations did occur as he testified and as expressed in his Basis of Claim narrative.

Objective Basis of Future Risk

[18]     Based on the credibility of the claimant’s allegations, the documentary evidence provided and the objective evidence which supports these allegations, the panel finds that the claimant has established serious possibility of a future risk that he will be subjected to persecution.

[19]     To be considered persecution, the prospective risk of harm must be sufficiently serious, either individually or cumulatively, to constitute persecution.

[20]     The claimant has faced arrest, detention, inhumane treatment and punishment in detention. He fears he will be arrested again if he were to return to Rwanda. The panel find that the types of harm that the claimant has faced in the past and may face in the future are persecutory.

[21]     The fact that the claimant faces this risk is corroborated by the following documents: National Documentation Package (NDP) for Rwanda- September 1, 2020, item 2.2, Rwanda. Human Rights in Africa: Review of 2019, and item 4.1, Rwanda: Politically Closed Elections.

State Protection

[22]     The panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances. It is the government that the claimant fears.

Internal Flight Alternative (IFA)

[23]     The panel considered whether a viable internal flight alternative exists for the claimant. On the evidence before me, the panel finds that there is a serious possibility of persecution throughout Rwanda. The government has effective control throughout the country and in the NDP, item 3.7, it describes the system of registration to account for citizens, through birth, death, and health, making the government capable of tracking the claimant should he return to Rwanda.

CONCLUSION

[24]     Based on the analysis above, the panel concludes that the claimant has established a serious possibility of persecution based on a Convention ground pursuant to Section 96 of IRPA. Accordingly, the claim is accepted.

(signed)           Tim Crowhurst

October 16, 2020

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 1, Package of Information from the Referring CBSA/IRCC.
3 Exhibit 3, National Documentation Package (NDP) for Rwanda (September 1 2020).
4 NDP, item 4.6 at pgs. 2-3.
5 Exhibit 6.
6 Exhibit 7.
7 Ibid.

Categories
All Countries Hungary

2020 RLLR 54

Citation: 2020 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: July 21, 2020
Panel: Hazelyn Ross
Counsel for the Claimant(s): Marko Vitorovich
Country: Hungary
RPD Number: TB0-11379
Associated RPD Number(s): TB0-11378, TB0-11380, TB0-11381
ATIP Number: A-2021-00655
ATIP Pages: 000159-000170


REASONS FOR DECISION

[1]       This is a redetermination of the claim for Convention refugee protection made by [XXX], principal claimant, [XXX] (wife), [XXX], (minor claimant), and [XXX]. The claimants are citizens of Hungary who seek protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1 on the basis of their Roma ethnicity.

[2]       Their claims for protection were initially heard jointly with those of the [XXX] family and a decision rendered in 2011. On an application for judicial review, Hughes, J. returned the matter to the Board for redetermination, on the ground that the Refugee Protection Division (the RPD) had made erroneous credibility findings and had failed to deal adequately with the issue of state protection. Hughes, J. also ordered that the claims of the two families be severed.

ALLEGATIONS

[3]       The claimants rely on the allegations in the narrative portion of the principal claimant’s Basis of Claim, (BOC)2. The following is a summary of those allegations.

•           That they are Roma, and readily recognised as such by their physical appearance and mode of dress;

•           They have suffered severe discrimination and harassment in their native Hungary, which discrimination and harassment started in school and has been lifelong;

•           They have been abused by the Hungarian police with the harassment growing worse during the 1990’s;

•           Hungarian Guard and skinheads attack them and other Roma frequently;

•           During an attack on [XXX] 1995, the wife was beaten so severely that she [XXX];

•           In the fall of 1996 a group of 4-5 skinheads attacked the principal claimant at his home. The attackers dragged him outside, where they beat him. They set fire to his home. They also beat his neighbours. The claimants went to the police but were told that the police would not help;

•           While the atmosphere was calmer during the 2000’s, between [XXX] 2005 and [XXX] 2009, the claimants were victims of a number of anti-Roma incidents. Their family members and friends were also victims of anti-Roma discrimination and violence. The principal claimant was kept naked in a cell for three days.

•           In [XXX] 2006, police arrested and detained the principal claimant on suspicion of theft as he was going to visit his wife after she had [XXX]. The police accused him of stealing the items he was taking to her. He was detained for three days. When he was released, he was asked whether he wished to file a complaint against the arresting officers. He provided the badge numbers of the officers who arrested and interrogated him, but was told that those badge numbers did not exist.

•           In [XXX] 2009, the wife and the principal claimant were returning home from a movie when the police stopped them for an identification check. The wife was let go, but the principal claimant was again detained for three days. His clothes were taken from him and he was kept naked for the entire three days. He was beaten during the first night and interrogated over the next two days of his detention, all with the intention of making him confess to crimes. When he was released, he was asked whether he wanted to make a complaint about his detention, however, when he said he wanted to, the officer asked him to consider it carefully as they [the police] would look into his family (a veiled threat).

•           The claimants made the decision to leave Hungary in [XXX] 2009, but before they could do so, they were victims of several serious incidents. On [XXX], 2010 Hungarian Guards attacked the wife and her mother while they were in town. The wife suffered injury to her head, arms, and legs. When they tried to make a complaint, the officer on duty accused the principal claimant of beating the wife and ordered the claimants to leave the police station.

•           In [XXX] 2009, Hungarian Guards violently invaded the claimants’ home, forcing them to flee. The Guards tried to set fire to the home, but the claimants re-entered the home and were able to douse the fire before it could spread.

•           All attempts to seek police protection proved futile, as each and every time they turned to the police, the police refused to assist them.

DETERMINATION

[4]       For the following reasons, the panel finds that the claimants are Convention refugees.

ANALYSIS

The Claimant’s Evidence

[5]       At the hearing, both adult claimants gave extensive oral testimony about the major incidents that prompted them to leave Hungary. They testified that they are readily identified as Roma persons by their physical appearance. As a result, the wife has been subjected to numerous random attacks while out on the street, which attacks she blamed on the reluctance of the white Hungarian population to accept the Roma. The principal claimant testified that he is readily identified as a Roma person by the shape of his face, his large nose and the colour of his skin. As a result, he has had trouble finding work and was attacked at least twice a month. He spoke of mistrust when he was out in the public sphere that culminated in him being falsely arrested and accused of theft in [XXX] 2006.

[6]       When she was asked what prompted the family to leave Hungary, the wife responded that the turning point was the home invasion of [XXX] 2009.

The Major Incidents

[7]       In assessing the wife’s oral testimony about the major incidents in the claim, the panel finds that overall her testimony was not credible and trustworthy because much of that testimony was exaggerated or unsubstantiated. This was particularly true of her testimony respecting her experience with the medical field.

The Wife’s Experiences with the medical system

[8]       The wife submitted medical reports that show that she had [XXX]. She alleged that the only reason she had the [XXX] was because the doctor who performed the previous [XXX] was negligent. She attributed his alleged negligence to her Roma ethnicity. She testified that he was silent when she confronted him with his negligence. The wife interpreted the doctor’s silence as proof that she was correct in her assumptions.

[9]       The panel gives little weight to this part of the wife’s testimony because it is internally inconsistent and contradicted by the medical reports she submitted. The medical report shows that the wife suffered from [XXX] and underwent [XXX] to address her condition. The first was in [XXX] 2000; and the second in 2006. The 2006 [XXX] was required because her condition had returned.3 When the panel gave the wife the opportunity to respond to the content of the medical reports, she asserted that she had only [XXX]. This response is inconsistent with her earlier testimony that she had [XXX] for the same condition, one of which was unnecessary and was entirely due to the doctor’s negligence and anti-Roma sentiment, a position she maintained throughout the hearing.

[10]     The panel is not an expert in any discipline of medicine, therefore, it is unable to attribute, as the wife did, that the [XXX] in 2006 was a) unnecessary, and b) occasioned only by the doctor’s racism. Further, given the inconsistency between the medical report and the wife’ s assertions that there were [XXX]; and her later denial that there had been a [XXX], the panel finds that her allegations that the doctor was negligent in his treatment of her condition because he harbored racist sentiment towards the Roma are neither credible nor trustworthy.

[11]     The wife also alleged medical misconduct when she gave [XXX]. She claimed that the staff forced her to [XXX], when, due to her prior [XXX], she was supposed to [XXX] section. She testified that she brought this to the staff’s attention, who ignored her. Instead the medical staff performed tests designed to [XXX] and forced her to [XXX] “then and there’. In her view, the medical personnel did not act in a professional way and wanted her to suffer because she was Roma.

[12]     For the following reasons, the panel rejects these allegations. The medical report regarding this event lists the following diagnosis: [XXX]

[13]     The medical report regarding this event sets out the circumstances of the wife’s [XXX] as:

“she got registered into our department following the [XXX] and the [XXX] got organised at [XXX] with a [XXX]. In regards to the previous [XXX] removal, to the [XXX] that is involved into the [XXX] and the prolonged period of time the [XXX] was completed with [XXX]; as a result of which a [XXX] without any complications … “4

[14]     The panel interpreted this portion of the medical report to be saying that the wife went into [XXX]. That she suffered from [XXX] and that due to additional medical complications relating to her previous [XXX] and the length of [XXX], a decision was made to [XXX]. When the panel gave the wife the opportunity to respond to its interpretation of the medical report, she reiterated her claim that, due to her Roma ethnicity, the medical personnel forced her to [XXX] over her protestations. She maintained that as she was present at the time she was in a good position to assess how the staff acted towards her. In response to her counsel, she testified that during the [XXX] she was diagnosed with [XXX] and that her doctor had told her that it would be better for her to have a [XXX] so that they do not burst.

[15]     While not disputing the wife’s subjective appreciation of the attitude of the medical staff, the panel is unable to find, as she suggested, that anti-Roma racism was the reason for the medical actions that were taken. It is clear that the wife felt that because of her earlier [XXX] she could not or should not have to [XXX]. No objective medical evidence was provided on this point, and, without additional information, the panel is unable to find, as the wife asserts, that the medical decisions taken by the staff were motivated solely by anti-Roma racism. The panel gives little weight to the wife’s testimony regarding the medical treatment she received when [XXX].

The October 2009 Home Invasion

[16]     The claimants allege that in [XXX] 2009 Hungarian Guards entered their home in an unprovoked attack. The wife testified that they entered through the window. As the Guards came in, the family fled through the back door. She testified that as they fled, she looked back. She noticed that the Guards were not following them and were, in fact, leaving. The family returned to the house and on entering noticed that the Guards had started a fire using some of the family’s clothing. They put the fire out. The principal claimant corroborated the wife’s account but added that the fire did not spread because the Guards had used their damp clothes to start the fire.

[17]     While the description of the attack aligns with the claimants’ general allegations as well as with the claims of Roma claimants, generally, for the following reasons the panel finds that the claimants’ account of the incident is not credible and trustworthy.

[18]     According to the claimants the incident was relatively brief. The Guards came in through the window, the claimants fled through the back door, the Guards started a fire; they left and the claimants returned home. The panel is not prepared to accept that the Guards would use damp clothes to start a fire; even, if they did, the panel is not prepared to accept that their attempt would yield a fire that the claimants would be forced to put out. The panel is of the view that this is not what could reasonably be expected in those circumstances and, therefore, the credibility of the claimants’ testimony regarding the [XXX] 2009 home invasion is seriously undermined. The panel finds, on a balance of probabilities, that the alleged home invasion did not occur.

The Other Incidents

[19]     The claimants alleged that following an attack on [XXX] 1995 the wife suffered a [XXX] as a result of the injuries she received. No independent evidence was put forward that could link the alleged [XXX] to an attack by Hungarian guards. Further, the wife’s testimony about the [XXX] mises concerns that the panel has not been able to resolve in her favour. She testified that while she went to the hospital because she felt pain, the only procedure that was carried out was a [XXX] that she testified was done at her urging. She received no other medical treatment, even though the doctor told her that the [XXX].

[20]     The panel finds that, notwithstanding the allegation that Roma women are routinely discriminated against in hospital, the events described by the wife are not in keeping with what might reasonably be expected where a [XXX] woman attends hospital complaining of with abdominal pain. Given that a [XXX] was in fact performed, the panel is not persuaded that the wife received discriminatory treatment amounting to persecution when she [XXX].

The [XXX] 2010 Incident

[21]     The claimants alleged that shortly before the wife came to Canada, Hungarian Guards attacked her and her mother. This incident allegedly took place on [XXX] 2010. The wife claimed to have suffered injury to her arms and legs. She testified that she received no assistance from either the police or the doctors. Photographs of her bruises were tendered as part of Exhibit 115. The wife testified that the Immigration Officer who interviewed them advised her to take the photographs. The photographs were the only supporting documentation respecting the alleged incident. The panel is aware of the presumption of truthfulness that attaches to the wife’s sworn testimony, however, in light of its prior credibility findings, and absent any supporting documents that originated in Hungary, the panel is unable to draw any inferences or make any findings regarding the injuries and the alleged incident because the photographs cannot tell the circumstances under which the injuries were sustained.

[22]     While the panel does not dispute that the wife, as a Roma person, has experienced discriminatory treatment in Hungary, given the credibility concerns that the panel has not been able to resolve in her favour, the panel finds that the wife has not met her onus to establish, on a balance of probabilities, that she faces a serious possibility of persecution if returned to Hungary. The panel finds that the wife is not a Convention refugee. For the same reason, the panel finds that she has not established that she is a person in need of protection.

The Principal Claimant

[23]     The principal claimant testified that he was readily identified as a Roma person by his appearance, specifically his large nose. The panel places little reliance on this claim, nonetheless, it finds, on a balance of probabilities, that the principal claimant’s association with his wife and her family and residence in a Roma area would likely cause him to be perceived as being Roma, which in turn leaves him open to the type of discriminatory treatment accorded to Roma persons in Hungary. Having made this finding, the panel examined the principal claimant’s allegations of persecution. His allegations centred around two incidents. In both incidents the police arrested and detained him for seventy-two hours before releasing him without charge. The documentary evidence indicates that this is common practice in Hungary.

[24]     The first incident occurred in 2006, shortly after the wife [XXX]. The principal claimant testified that he was on his way to the hospital to visit her. He was taking her some supplies she needed, things like shampoo and sanitary napkins. On his way to the hospital the police stopped him. The officers accused him of stealing the items, a charge he denied. The police took him to the police station, where he was detained for seventy-two hours before being released without charges. During this period the police questioned and beat the principal claimant. For the three days he was detained, his family did not know where he was.

[25]     The second incident occurred in [XXX] 2009. The principal claimant testified that when the police arrested him, they told him that they were looking for him because he was charged with theft. At the police station he was stripped of his clothes, and in his words “given dirty rags”. But for these rags he was naked. He remained naked throughout the three days of his detention. The principal claimant testified that he was humiliated during the three days he was detained stating that “it was unnatural the way they humiliated me”. Asked to explain what he meant he replied that he did not want to do in front of the female claimants. Later on he would testify that since coming to Canada and finding work here, he feels like a man again.

[26]     The principal claimant was rather emotional while he was giving this testimony, however, he would not elaborate on his experience during detention. He testified that in 2013 he was assessed by a [XXX], who recommended that he join a support group and that he could benefit from [XXX].6 In fact, the principal claimant was found to have a score of [XXX].7 The principal claimant testified that he did not follow up on these treatment recommendations largely because of financial difficulty. Nonetheless, he testified that if returned to Hungary he would likely break down again.

[27]     While the panel is cautious of medical [XXX] reports that state that the only way that claimants can recover from their [XXX] and other health issues is for them to remain in Canada, it found that the principal claimant presented his testimony, which centred mainly on these two incidents and an incident in a public park, in a straightforward manner and without any seeming attempt at subterfuge. For this reason, the panel accepts the finding of the [XXX] that the principal claimant has suffered or [XXX], which likely stems from his experiences while detained.

[28]     Further, based on the principal claimant’s demeanour while testifying about the second detention, the panel accepts that he was mistreated as he alleged. The documentary evidence indicates that Roma persons are often mistreated while they are in custody.8 Given these statements in the documentary evidence, the panel’s findings respecting his perceived Roma identity as well as the principal claimant’s testimony respecting the mistreatment he received at the hands of the police, the panel finds that, if returned to Hungary, there is a serious possibility that the police would continue to arrest and harass the principal claimant. Further, the panel finds that such continued harassment is treatment that would amount to persecution.

State Protection

[29]     As the police are the agents of persecution, the panel finds that it is not likely that state protection would be available to the principal claimant. For these reasons, the panel finds that he is a Convention refugee.

The Minor Claimant

[30]     On the behalf of the minor claimant it was advanced by both the adult claimants and their counsel that he would be persecuted if he were to return to Hungary. They posited that the minor claimant would be denied adequate schooling and that he would suffer the same discriminatory treatment that all Roma face in Hungary. Segregated schooling for Roma children is well documented.9 However, this is not a situation that the now [XXX] years old minor claimant has ever faced, and there was little persuasive evidence before the panel that the minor claimant who has had the benefit of being educated in the Ontario school system will likely face segregated schooling if returned to Hungary.

[31]     It was also argued that the minor claimant was not sufficiently proficient in the Hungarian language to allow him to attend a Hungarian school. The panel is not persuaded by this argument because there was no independent evidence of the minor claimant’s proficiency in the Hungarian language put before it that could allow the panel to make such a conclusion. What is evident is that he is reliant on his parents for support. The panel has already found that the principal claimant is a Convention refugee and by virtue of family membership and his dependency on the principal claimant, the panel finds that the minor claimant is also a Convention refugee.

[XXX]

[32]     [XXX] is the wife’s mother. She claims to have experienced lifelong discrimination and harassment in Hungary. She relies on the principal claimant’s narrative, which states that she was with the wife on [XXX] 2010 when Guardists attacked them. Unlike the wife, no photographs were tendered to support this claim. The panel has already found that there was insufficient credible evidence before it to allow it to find that Guardists attacked the wife on [XXX] 2010 and for the same reasons it is unable to find that [XXX] was also attacked on that date.

[33]     In so far as [XXX] relies on the claims of the principal claimant, the panel’s adverse credibility findings respecting these claims also apply to her. The panel is aware that, as a Roma person in Hungary and as indicated in the documentary evidence, [XXX] likely faced many acts of discrimination during her lifetime. Nonetheless, she has not put forward sufficient credible and trustworthy evidence to allow the panel to conclude that the acts of discrimination had risen to the level of persecution. For this reason the panel finds that she has not made out her claim to be a Convention refugee.

Family Membership

[34]     Notwithstanding, its findings respecting the wife, and [XXX] the panel considered whether there is a serious possibility that they would face persecution as family members of the principal claimant. It has concluded that, on a balance of probabilities, they are likely to do so because of the targeting of the principal claimant by the police in their neighbourhood. Accordingly, the panel finds that the wife, the minor claimant, and [XXX] are Convention refugees.

CONCLUSION

[35]     [XXX] claimed protection in Canada pursuant to sections 96 and 97(1) of the IRPA on the basis of their Roma ethnicity. Having considered their claims, the Refugee Protection Division finds that they are Convention refugees.

[36]     Pursuant to section 96 of the IRPA, their claims are accepted.

(signed)           H. Ross

July 21, 2020

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim forms (BOC).
3 Exhibit 15, p. 55.
4 Exhibit 15, p. 61.
5 Exhibit 11.
6 Exhibit 12.
7 Ibid.
8 Exhibit 6, National Documentation Package (NDP) for Hungary, version 31 March 2020, Item 2.1.
9 Ibid.

Categories
All Countries Zimbabwe

2020 RLLR 53

Citation: 2020 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: December 18, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Jane G. Rukaria
Country: Zimbabwe
RPD Number: VC0-00752
ATIP Number: A-2021-00655
ATIP Pages: 000154-000158


DECISION

MEMBER:

[1]       This is the decision of the Refugee Protection Division in the claim of [XXX], a citizen of Zimbabwe who is claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution.

[2]       Your allegations are set out in your Basis of Claim form and by your testimony, the following is a brief summary.

[3]       You disagree with the current government of Zimbabwe and you’ve supported the movement for democratic change, the opposition party MDC as a volunteer. You fear persecution on this basis. It states that your risk is exacerbated due to the gender-based violence inflicted by state actors on women who are perceived to be opposing the government.

Determination

[4]       I find that you are a Convention refugee as you have established a well-founded fear of persecution based on a Convention ground namely political opinion. I also acknowledge that you have a Nexus to membership in a particular social group as a woman facing persecution based on your gender and I’ve considered this in conjunction with your political Nexus in this claim.

Identity

[5]       I find your identity as a national of Zimbabwe is established by your testimony and the supporting documentation on file including certified true copies of your passport in Exhibit 1.

Credibility

[6]       The presumption before me is that your testimony is true. However, this can be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions or undetailed testimony. You were straightforward and forthcoming in your testimony. There were no relevant inconsistencies between your testimony or other documents before me, other evidence. You did not appear to embellish your description of events and actions, even when it might have appeared favourable to your claim to do so. You provided credible documentation. You explained that you tried, with limited success to obtain documents from Zimbabwe in support of your claim. You said there were problems with COVID as well as not having anybody in Zimbabwe that you could ask to give you assistance with this. However, you were able to provide a number of documents, particularly late disclosures, Exhibit 5 and 6. There is a copy of your membership in the [XXX] dated [XXX] 2020 in Exhibit 5. As well, there’s a letter from [XXX] at the [XXX] Harare that confirms the injuries that you sustained when you visited the clinic on [XXX] of 2019. You have a paystub showing that you worked for a [XXX] from 2012.

[7]       Your husband provided an affidavit with a copy of his photo ID which corroborates the assault that you sustained on [XXX] of 2019 and that he and your sons have largely remained out of Zimbabwe. There’s an affidavit from a colleague in the MDC Women’s Assembly that confirms your participation. This too is accompanied by a copy of the writer’s photo ID. Exhibit 6 includes a letter from the Department of Legal Affairs of the MDC Alliance in Zimbabwe. This letter documents your membership since 2007 and describes your voluntary service in promoting economic activities with the [XXX] and various support services such as typing and distributing materials. The letter includes references to the events that you describe and states that it is a common occurrence for members to be intimidated and assaulted as the brutal crackdown on those opposed to the government is a reality. It’s signed by the [XXX], who provided a phone number and offered to give more information if the Board required. I found these documents relative and probative and that they supported your allegations.

[8]       Based on your testimony and your documentation, I find you are a credible witness and therefore believe what you’ve alleged in support of your claim. I find the persecution that you face has a Nexus to two of the five Convention grounds that of political opinion as well as your membership in a particular social group as a woman facing gender-based violence and therefore, I’ve assessed your claim under Section 96.

Well-Founded Fear

[9]       In order to be considered a Convention refugee, you must demonstrate a well-founded fear of persecution including both a subjective and an objective basis for that fear. Based on your testimony, your supporting documents and the country condition documents. I find that you have a well-founded fear of persecution for the following reasons.

[10]     You’ve supported the MDC as a volunteer for the [XXX]. You described your role and support work and you told me that if you’re a woman in Zimbabwe, you need to do something to be able to help yourself. You said that you used to [XXX], to sustain themselves and feed their families. You testified that the party ZANU-PF does not allow you to share your views. They want you to listen to what they say whether it is right or wrong. You spoke of corruption and misuse of public fonds and the need for those at the top to address this. Also, you said that if you spoke about this openly in Zimbabwe. You would face the threat of harm from the state. You testified that you want to see change and that people should be treated humanely and be able to live safely without fear in Zimbabwe.

[11]     In the runup to the 2018 elections, you worked as a volunteer for a leader Mwayemureyi Saungweme but you were warned by the MDC liaison officer about a pending crackdown. Fearing sexual assault and other forms of gender-based violence that women supporters are subjected to, you stopped volunteering. A few days after you stopped, there were several photographs of you volunteering for the MDC with a note saying, we know who you are, dropped off at your house. On [XXX] of 2019, you were caught up in violence when the police attacked a peaceful MDC march. You were merely waiting for a bus at that time and you were beaten by the police. Fearing gender-based violence, you hesitated to see a physician about your injuries and stayed home until [XXX] of 2019. On the [XXX] of January, your house was vandalized. At first you thought it was due to thieves but her neighbours told you that it was the police and you realized that your National ID and other documents had been taken.

[12]     You and your spouse moved to another area in Harare on [XXX] 2019, and after that you only went out to go to and from work and you avoided any active participation in MDC activities due to your fear of persecution. You kept a low profile. On [XXX] 2019, there was more violence during an MDC demonstration. You were working at a [XXX] and injured protesters came for treatment followed by police who ordered the staff not to treat them. When the [XXX] refused to follow these orders, the police dragged the front-line staff including yourself outside and assaulted you. You had already realized after the [XXX] assault that you had to leave the country for your safety but first you needed to ensure your sons were safe and to get the fonds for you to be able to leave yourself.

[13]     You stated that one of your sons was already out of the country studying at that time and that you ensured that he was not going to come back and you arranged for your other son to leave Zimbabwe on [XXX] of 2019. Your mother, who was visiting relatives in Canada became very ill and this enabled you to get a visa to come to Canada. However, you still didn’t have the funds to leave at that time. On [XXX] of 2019, the police attacked the MDC office in Harare. This raised your level of concern even higher and your brother bought you a ticket so that you could leave for Canada on [XXX] 2019. You claimed asylum in Canada and signed your Basis of Claim form on the 21st of January 2020. In the meantime, your spouse has also left Zimbabwe and [XXX] in the [XXX] through to [XXX] only passing through Zimbabwe as necessary. Since coming to Canada. You’ve joined the MDC North America. You said we are organizing and trying to see how we can contribute to help our youth in Zimbabwe to start some projects, so they can help themselves.

[14]     I found that you have adduced sufficient credible evidence by your actions; also which is supported by the country documents to establish that you do have a subjective fear of persecution in Zimbabwe. The country condition documents show that the ruling government of Zimbabwe the ZANU-PF has come down hard on the opposition such as the MDC. NDP 2.2 Freedom in the World says despite President Mnangagwa repeatedly voicing his commitments to human rights reforms Zimbabwe remained highly intolerant of basic rights, peaceful dissent and free expression in 2019. During nationwide protests in mid-January, security forces responded with lethal force, killing at least 17 people, raping at least 17 women, shooting and injuring 81 people and arresting over 1000 suspected protesters during door-to-door raids. In the months that followed several civil society activists, political opposition leaders and other critics of the government were arbitrarily arrested, abducted, beaten or tortured. Little or no efforts were made to bring those responsible for the abuses to justice. Following the protests security forces intensified a crackdown on supporters of the opposition Movement for Democratic Change Alliance, among others. The U.S. Department of State echoed this description of the poor performance of the Zimbabwe government with respect to human rights and notes that impunity remains a problem. Amnesty International also described the treatment of opposition members and supporters particularly during that January 2019 protest, where security agents opened fire on protesters.

[15]     The police also threatened and arrested journalists, medical doctors and lawyers, monitoring the protests or assisting protesters. They used tear gas, baton sticks, water cannons and live ammunition to disperse protesters. The crackdown on protesters included torture and other ill-treatment and mass arrests. By the end of February, over 600 people have been arrested in connection with the January protest that’s NDP 2.4. The UK Home Office further notes direct targeting of opposition and perceived opposition, including NGOs that continued after the initial violence through house raids, arrests and detentions. The NDP provides evidence women are targeted, specifically in election times, as candidates and election workers. Women have also stated that they feared not only the direct act of violence but potential repercussions associated with it. For example, they’re concerned that being politically active may result in getting caught in a mob or arrested and brought to jail where they could be raped. Impunity plays a large role in allowing this climate of fear to persist. Interviewees frequently referred to the role of the police in failing to protect or of even actively contributed to the violence against women in election times.

[16]     A review of online content showed that 60 percent of violent discourse and content in the political space was directed at women for the period between January 2013 to April 2018 according to NDP 5.7. You also provided country documentation detailing the heightened risk faced by women who are in opposition to the government. A February 2020 survey found that an astounding 75 percent of women surveyed by Transparency International Zimbabwe have been forced to exchange sex for jobs, medical care and even seeking placement in school for their children, that’s Exhibit 4 on page 22 and it notes that even police officers are involved in this form of extortion. An academic article from the Journal of International Women’s Studies on page 27 includes that gender-based and politically motivated violence has an ongoing negative impact on women and girls and has led to a broad acceptance of violence against women and girls in Zimbabwe. An August 30, 2019, article by Newsday reports on the MDC Women’s Assembly’s concerns over the growing abductions and abuse of women being perpetrated by suspects, state security agencies and members of the ruling ZANU-PF party. Another article from The Guardian of January 31, 2019, states that scores of women and girls say they have been raped over the past two weeks by army officials who have ransacked houses ostensibly in search of protesters and another article on pages 69 to 70 states that most rapes by soldiers and security forces go unreported to the security forces due to fears of reprisals.

[17]     I’m satisfied that opponents of the government such as you, yourself face a serious possibility of persecution. Furthermore, your risk is compounded by the threat of sexual assault, which women, particularly women who are in political opposition face in Zimbabwe. Based on all the evidence before me, I find you would face a serious possibility of persecution if you were to return to Zimbabwe.

State Protection and Internal Flight Alternative

[18]     In this case the agent of persecution is the state and its supporters. The persecution that you would face if returned to Zimbabwe is at the hands of the authorities. Accordingly, I find there is no state protection available to you and the presumption of state protection is rebutted. The state is in control of all of its territories and therefore on the evidence before me, I find there is a serious possibility of persecution throughout Zimbabwe and that there is thus no viable internal flight alternative available for you in your particular circumstances. Based on the totality of the evidence, I’ve concluded that you are a Convention refugee and accordingly, I’m accepting your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Zimbabwe

2020 RLLR 52

Citation: 2020 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): N/A
Country: Zimbabwe
RPD Number: VB9-08524
ATIP Number: A-2021-00655
ATIP Pages: 000149-000153


— DECISION

[1]       PRESIDING 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 the 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, [XXX] claims to be a citizen of Zimbabwe and is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[3]       I find that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground; namely, her political opinion. She’s an active member of the main opposition alliance in Zimbabwe.

ALLEGATIONS

[4]       The claimant’s complete allegations are set out in the basis of claim form and need not be repeated here in detail. To summarize briefly, the claimant is a woman born in [XXX]. In [XXX] 2019, there were unprecedented riots in Zimbabwe. The claimant is a long time political and social activist. She was active in the ZTCU Union, which was the steppingstone for the MDC under Morgan Tsvangirai; the MDC being one of the main opposition parties in Zimbabwe.

[5]       The claimant became an active member of the MDC which is the — just a minute, please — the Movement for Democratic Change and she is now a member of the MDC alliance. In addition, the claimant’s work history has resulted in problems with the authorities, as result of which, her husband left her.

[6]       In [XXX] 2019 the claimant’s sister [XXX] and her husband were killed in a vehicle accident near a police camp. The claimant started the guardianship process for the children of her late sister. The claimant fears that her sister was mistaken for her when her sister was chased in the course of this fatal accident. The claimant is a victim of sex abuse and assault from the Zimbabwe police and the Zimbabwe military. This is as she was employed by an [XXX] and she is also an active member of the MDC.

[7]       On [XXX] 2019 the claimant suffered at the hands of the police, the military and the ZANU-PF, which is the ruling party of Zimbabwe. While among 200 protesting citizens and activists, the claimant was hit, she was arrested and sexually abused. She passed out. The police recorded her name and threatened her against engaging in protest against the government. They said that she has always been on their close watch and that her movements would be monitored. They said that they would harm her more and eventually kill her.

[8]       On [XXX] 2019, two police officers who she knew from their previous visits to her workplace went again to her workplace looking for her. They caught her and took her to the Harare Central Police where they said her name is on the top list for elimination. The claimant had to relocate to another suburb in [XXX] some [XXX] away. Her family is in danger; her mother has been visited by the police approximately seven times since [XXX] 2019. Her mother has since relocated to be with the claimant’s children. When the claimant reported to the police, they refused to take the report at face value. She then asked for a request for a medical report form, this was in order to seek treatment for health issues that she suffered from as a result of mistreatment by the police authorities.

[9]       The claimant obtained medical treatment, she then sought [XXX]. She did this at the [XXX]. She was [XXX]. The claimant applied for a Canadian visitor visa on [XXX] 2019. She obtained it on [XXX] 2019 and she left for Canada on [XXX] 2019. She later learned from her party, the MDC Alliance that the authorities of Zimbabwe are after her.

[10]     The claim was referred on October 30th of 2019. The claimant alleges fear of risk to her life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm, and she also alleges that neither state protection nor safe and reasonable internal flight alternatives are available in her country of nationality.

ANALYSIS

[11]     The main issue is credibility.

Identity

[12]     The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file along with other documents. I am satisfied as to the claimant’s identity.

Credibility

[13]     When credibility is assessed, there are two principles that are followed. Firstly, when the claimant swears to the truthfulness of certain facts, there is a presumption that what the claimant is saying is true unless there is reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and common sense. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.

[14]     The panel found the claimant to be a credible witness. Her testimony contained many details which added credibility and context to her allegations. Her testimony was consistent with her allegations. Her testimony helped the panel to make sense of the allegations by putting them into the claimant’s personal and national context. The claimant did not embellish. The claimant was able to answer difficult questions in a credible manner. The claimant provided original copies of multiple corroborating documents.

[15]     The claimant has established her profile as a long time social and political activist who has consistently worked for the opposition and/or the founding ZCTU Union, which predates the MDC and/or NGOs perceived to be anti-government. The panel finds that the claimant would be treated upon returning to Zimbabwe in a manner consistent with this profile, as she has come to the attention of the authorities as recently as [XXX] 2019. The panel finds that the claimant would resume these political and/or anti-government activities in Zimbabwe should she return there as she has done this at her own risk for decades.

Similarly Situated Persons and Objective Basis

[16]     The claim is objectively based as per the country conditions documents. In the United States Department of State report at Item 2.1 of the National Documentation Package it says that the government of Zimbabwe restricts the rights to freedom of association and that ZANU-PF supporters, sometimes with government support or acquiescence intimidated and harassed members of organizations perceived to be associated with other political parties.

[17]     Another document which is at item 10.1 of the National Documentation Package and which was published in June 2019 and which is called, On the Days of Darkness in Zimbabwe, an Updated Report on the Human Rights Violations committed between January 14, 2019 and February 5th, 2019 states as follows,

“The Zimbabwean army unlawfully deployed into the streets and residential areas where it unleashed a reign of terror on anyone they came across. The Human Rights NGO Forum published a report which details more than 1800 such violations of human rights since January 14, 2019 across the whole country. This was in response to mass protests among the Zimbabwean population in January 2019 following an increase in fuel prices”.

[18]     Another document, which is part of the National Documentation Package at Item 4.7 of the National Documentation Package, which is a British document called, Country Information and Policy Notes, Zimbabwe Opposition to the Government, also published in 2019, states that,

“The ruling ZANU-PF uses the state security apparatus to harass and intimidate those in opposition to it. The levels of politically motivated violence and human rights violations by state security forces and ZANU-PF supporters, fluctuate with recent peaks. With regards to those perceived to have been in the opposition to the government at the time of the January 2019 demonstrations, it is established that they faced serious human rights violations against them. This was followed by further direct targeting of opposition, perceived opposition and NGOs which continued after the initial violence through house raids, arrests and detentions.”

[19]     This is very close to the experience of the claimant.

[20]     Moving to the question of state protection, the panel finds that state protection in Zimbabwe would not be forthcoming in this case as the claimant fears the Zimbabwean state itself. That state has already abused her rights to political expression and freedom of association and assembly.

[21]     The Zimbabwe government is described in the United States Department of State report as only taking limited steps towards potential consequences for security sector officials who committed human rights violations. This document states that impunity remained a problem in this regard. The presumption of state protection has, therefore, been rebutted based on the objective country conditions information.

[22]     Moving to the last question, which is whether there is an internal flight alternative where the claimant would not face a serious possibility of persecution, the panel finds that the analysis of internal flight alternative fails on the first prong as the claimant, on a balance of probabilities does face a serious possibility of persecution throughout Zimbabwe as a result of her profile and of the stated country conditions information.

[23]     In conclusion, having considered all of the evidence, the panel determines that there is a serious possibility that the claimant would be persecuted in Zimbabwe for her political opinion. Her claim is accepted.

— DECISION CONCLUDED

Categories
All Countries Haiti

2020 RLLR 51

Citation: 2020 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Milan Milenkovic
Country: Haiti
RPD Number: VB9-06803
ATIP Number: A-2021-00655
ATIP Pages: 000139-000148


REASONS FOR DECISION

INTRODUCTION

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

DETERMINATION

[2]       Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[3]       Its reasons are as follows:

ALLEGATIONS

[4]       The claimant’s complete allegations are set out in the Basis of Claim Form (BOC)2 and need not be repeated here in detail.

[5]       To summarize briefly, the claimant was targeted by organized crime after refusing to give up his XXXX to the members of this organized crime group. The claimant was employed by [XXX] in Haiti. He was employed as a [XXX] (in Port­au-Prince), a dangerous area overrun by bandits. He testified that his work involved [XXX]

[6]       On [XXX] 2019, while working, the claimant was approached by a stranger. The man asked him to give him his [XXX]. The claimant refused, explaining the procedure involved in handing over an [XXX]. The stranger became furious and threatened him. Strangers started asking the security guards at work about the claimant.

[7]       On [XXX] 2019, while at the [XXX], the claimant was called out by an individual who took an interest in his [XXX]. This person knew when the claimant’s work shift ended, and the name of the person assigned to the following shift. Out of fear, the claimant remained at the [XXX] for several hours after his shift ended, until he felt it was less risky to leave the [XXX].

[8]       After this incident, the claimant took precautions in his means of transportation to work. Eventually, the situation became too stressful and the claimant quit his job on [XXX] 2019. He did so as he thought that quitting the job would put an end to his troubles.

[9]       On [XXX] 2019, while exiting [XXX], two persons gestured for him to stop his car. These persons shot in the direction of the car. The claimant sought state protection from the police in [XXX] on [XXX] 2019, to no avail. He does not know if the police investigated his complaint. The claimant moved to be away from his wife and daughter. He did this to keep them safe. Despite his move, on [XXX] 2019 a car chased him at high speed on the [XXX] highway. The car went out of its way to reach him. The claimant left Haiti on [XXX] 2019 on a plane ticket paid for by his sister. He landed in [XXX] USA, and made his way to Canada. His claim was referred at the Port of Entry on Aug 29, 2019.

[10]     The claimant fears being killed by the bandits who tried to kill him on [XXX] 2019 and [XXX] 2019.

[11]     The claimant also alleges risk to his life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm

[12]     The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in his country of nationality.

ANALYSIS:

[13]     The main issue is internal flight alternative (“IFA”).

Identity

[14]     The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file, along with other documents. The panel is satisfied of the claimant’s identity.

Nexus

[15]     For the claimant to be a Convention refugee, the fear of persecution must be “by reason of’ one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

[16]     There are numerous Federal Court cases which have held that victims of crime, corruption[1], or vendettas[2] generally fail to establish a link between their fear of persecution and one of the five grounds in the definition of Convention refugee.

[17]     The panel finds that the harm feared by the claimant is not by reason of one of the five grounds enumerated in the Convention refugee definition. The panel finds that the allegations concern criminal acts perpetrated against the claimant for reasons not related to a nexus. The panel shall therefore analyse the claim under section 97(1).

Credibility

[18]     When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts3 there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility the panel is entitled to rely on rationality and common sense4. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.

[19]     The claimant’s allegations do not run contrary to generally known facts. The claimant was interviewed by CBSA at the border5. The claimant’s statements during the interview are consistent with his BOC allegations. In fact, they provide detail which adds to the credibility of the allegations. This adds to the credibility of the claimant as a witness. The claimant’s testimony at the hearing was consistent with his allegations. The testimony was spontaneous and direct. He has documented his allegations. The claimant is credible.

S. 97 ANALYSIS

[20]     Section 97 is based on an objective assessment of risk, and the evidence must establish a specific, individualized risk for a claimant rather than generalized human rights violations in a country. Being a victim of crime does not make someone automatically qualify under section 97. There must be evidence establishing, on the balance of probabilities, that the claimant would be subjected personally to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment. In addition, to succeed under s. 97(1)(b), the claimant must also establish that the risk they face is not faced generally by others in or from the country.

[21]     The panel finds that the claimant would be subjected personally to a risk to life, or risk of cruel and unusual treatment or punishment in Haiti because of criminals’ interest in getting back at him since his refusal to give them his [XXX] in [XXX] 2019. The panel further finds that the claimant’s risk is not faced generally by others in or from Haiti.

[22]     The claimant does not name the criminals who have targeted him. But these criminals’ continued threats against him would, the panel finds, reasonably point to one same group of criminals who are targeting him. On a balance of probabilities, the panel accepts that the threats were by the same group of criminals targeting the claimant. This is because the claimant was specifically targeted by people who knew his identity, his schedule and his whereabouts. These criminals tracked and targeted him by threatening and attacking him, trying to shoot at him and run him off the road. This targeting carried over during various months and in various locations. There is no evidence that the claimant had any other problems with criminals in Haiti. People in Haiti are susceptible to crime and violence, but the claimant in this case the evidence establishes that the claimant was individually and specifically targeted by the same group of criminals.

[23]     Moreover, the events described go well beyond the general situation of gang crime or organised crime that is prevalent in Haiti. Even after the claimant quit his job as an [XXX] at the [XXX] in [XXX] 2019, he continued to be targeted, notably outside of [XXX], while on the road to [XXX] This was after he moved from his home in [XXX] 2019. This is relevant as he no longer had access to the [XXX] which was the starting point for the criminals’ interest in him in [XXX] 2019. The risk shifted to the claimant independently of whether his employment makes him of interest to the criminals. The risk has also now shifted independently of whether the claimant works in the area where he was first threatened. It is a risk that is more significant and more direct than that faced by others in Haiti.

[24]     In sum, the panel finds on a balance of probabilities that the claimant would be subjected personally to a risk to life or risk of cruel and unusual treatment or punishment in Haiti that is not faced generally by others in or from Haiti.

[25]     The risk he faces started as a risk resulting from his employment as a [XXX] for [XXX] at the [XXX]. That risk has now evolved to a specific, individualized risk that is unrelated to his employment as the risk is about him alone. That risk is not faced generally by large segments of the population in Haiti.

Similarly situated persons and objective basis

[26]     The objective country conditions evidence contains various documents on the harm faced by someone who has an unsettled score with gangs or other criminal elements6. The Board’s Response to Information Request (RIR) on Acts of Revenge committed by gangs or by other organized crime entities7 provides relevant information on the objective basis of this claim. Several sources in this RIR state that gangs and armed groups commit acts of revenge in Haiti. These acts of revenge are described as one of the methods of control used by gang leaders. Independently of their connection to gangs, criminals reportedly also commit acts of revenge. The perpetrators of acts of revenge may be guns for hire who work for others. Given the number of sources cited in this RIR, the panel gives this information significant weight. The information it provides is in conformity with other documents on file on the country conditions in Haiti.

[27]     Having established the prevalence of acts of revenge committed in Haiti by a variety of actors, the panel turns to the question of the motive for these acts of revenge. They are described, still in this same RIR, as occurring for a variety of reasons. Among these reasons is wanting to punish or dissuade those who oppose armed groups, and to settle scores. According to one source, those who report criminals to the police are particularly targeted. The panel notes that the claimant did file a police report. Acts of revenge are generally described as including murder and other grievous acts.

[28]     As for the ability to track down victims, the principal means described in the same RIR is word of mouth. The RIR refers to the effectiveness of different ways of locating people in Haiti. In addition, it reports that anyone outside a one’s small area will be quickly recognised. People in Haiti are reportedly “generally well aware of their neighbours’ business”8. The ability to track someone reportedly persists for years when a gang remains interested in that person. Some victims of acts of revenge have reported that the police helped assailants locate them.

[29]     Based on all of the stated evidence, the panel finds that there is an objective basis to the claim.

State Protection:

[30]     Claimants must show, on a balance of probabilities, that adequate State Protection is not available. The issue before the panel was whether it was objectively unreasonable for the claimant(s) to have sought state protection. While states are presumed to be capable of protecting their nationals, it was open to the claimant(s), according to the law, to rebut the presumption of protection with “clear and convincing” evidence.

[31]     The claimant sought state protection to no avail. This is consistent with the available country conditions evidence.

[32]     Several items of the NDP9 mention the inability of the police in Haiti to protect the people of Haiti. Corruption and impunity for crimes are described as being widespread in Haiti. One document references the French OFPRA report, which explains that: “The capabilities of the Haitian National Police are not sufficient, both in terms of the number of police officers who are mainly present in the capital, and in terms of the equipment available to the police, noting in particular the lack of fuel, cars and computers. » In the same vein, it states that “Haiti’s National Police has a limited response capacity and lacks the resources to complete investigations, which compromises the deterrent effect on criminals who act without fear of the police authorities.” The document also indicates that the police are notable to protect themselves from criminals in Haiti. When the panel considers the entirety of the evidence on country conditions in Haiti, it finds that the claimant could not avail himself of adequate state protection in Haiti. The presumption of state protection has been rebutted.

Internal Flight Alternative (IFA):

[33]     The IFAs of [XXX] were suggested at the hearing. Having heard the evidence the panel finds that the analysis of IFA fails on the first prong. The panel finds that the people who have targeted the claimant could locate the claimant in an IFA. As seen in the section on risk under section 97(1), the agents of harm have demonstrated their motivation to pursue the claimant outside of [XXX]. They have also demonstrated their motivation to pursue him over time. As seen in the section above on the objective basis, the social and neighbourhood networks in Haiti would make it possible for the agents of harm to locate him in the proposed IFAs. The panel finds that, on a balance of probabilities, the claimant faces a risk to life or risk of cruel and unusual treatment or punishment in the proposed IFA – s. 97(1) and throughout Haiti, which is a geographically small country.

CONCLUSION

[34]     Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[35]     The claimant is credible.

[36]     The panel concludes that the claimant is a person in need of protection and the panel therefore accepts their claim.

(signed)           Miryam Molgat

October 19, 2020

[1] Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v ME.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; and Vargas, Maria CecillaGiraldo v. ME.I. (F.C.T.D., no T-1301-92), Wetston, Mary 25, 1994.
[2] Marincas, Dan v ME.I. (F.C.T.D., no IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); and Xheko, Aida Siri v. M.C.I. (F.C.T.D., no IMM-4281-97), Gibson, August 28, 1998.
3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
4 Shahamati, Hasan v. Minister of Employment and Immigration (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994
5 Solemn Declaration by C. Cabot, Exhibit 1
6 National Documentation Package, Haiti, 1 September 2020, sections 2 and 7.
7 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
8 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
9 National Documentation Package, Haiti, 1 September 2020, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.National Documentation Package, Haiti, 1 September 2020, tab 7.8: Major criminal groups, including their areas of operation, their structure and their activities; state response (2016-May 2019). Immigration and Refugee Board of Canada. 6 June 2019. HTI106293.FE.

Categories
All Countries Palestine

2020 RLLR 50

Citation: 2020 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: January 20, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): N/A
Country: Palestine
RPD Number: VB9-04099
Associated RPD Number(s): VB9-04100, VB9-04101, VB9-04102, VB9-04103, VB9-04104, VB9-04105
ATIP Number: A-2021-00655
ATIP Pages: 000132-000138


— DECISION AND REASONS BY THE MEMBER

PRESIDING MEMBER:

Reasons for the decision

[1]       This is the decision of the Refugee protection Division in the claims of the principal claimant, [XXX] and the joint claimants, his [XXX] and their children [XXX] and the two American-born twin boys, [XXX].

[2]       The claimants are seeking refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Your identities have been established by copies of your passports for each of the claimants.

[4]       As I’ve indicated, the two twin boys [XXX] are citizens of the United States and the other five claimants are from the Palestinian Occupied Territories, Specifically Gaza and your former habitual residences for the principal claimant are Libya, Oman and Gaza. The former habitual residences for the other claimants is Oman as well as Gaza..

Allegations

[5]       You fear return to Gaza because you fear political persecution at the hands of Hamas. You’ve been involved with the [XXX] in the past when you lived in Gaza and you were subjected to a militia attack against the radio station in which you were physically harmed, including on your right leg and right arm.

[6]       You were also detained twice by Hamas forces and during which time you were physically and psychologically abused during both of those detentions.

[7]       You’ve also given testimony regarding your status in Libya and Oman as the principal claimant, that you were a child when you left Libya, when Khadafi forced out the Palestinians and you’ve also testified that more recently you were forced to leave Oman when you were terminated from your work as a [XXX] in Oman.

[8]       Further details are found in your Basis of Claims forms, some of which I will highlight in this decision.

[9]       I also note that I have applied the Chairperson’s Guideline Number 4 with respect to victims of gender-based persecution, specifically for the joint claimant [XXX] and the three joint minor claimants which are girls.

Determination

[10]     I find for the principal claimant, [XXX], the joint claimants, [XXX] that you are Convention refugees pursuant to section 96 of the Act for the reasons that follow.

[11]     With respect to the two joint minor claimants [XXX], I find that they are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to section 97 because there is not sufficient evidence with respect to the claim against the United States.

[12]     You testified today as their designated representative. The principal claimant you were the designated representative for all of your children and you testified that with respect to the United States your concern was family separation, that you did not want to be separated from your two minor sons who were born in the United States.

[13]     When I asked you for more examples or details or asked you directly about either persecution for your two boys in the United States or a risk to their lives in the United States, you testified that you did not have those concerns against the United States for your boys and it was more about family separation.

[14]     Accordingly, I find that their claims are not established either as a serious possibility of persecution in the United States or on a balance of probabilities that they face a person risk to their lives, or cruel and unusual treatment or punishment in the United States.

[15]     As I’ve indicated earlier, identity has been established by copies of your passports.

[16]     With respect to credibility, you both testified in a straightforward and consistent manner today and I find that you are both credible witnesses.

[17]     You also provided corroborative documentation in support of your claim at Exhibit 4 and this included a number of item, including letters from the [XXX] and human rights organizations supporting the attack as well as the summons that you’ve received in 2007, in 2010 and further summons from Hamas authorities in 2016 and 2018.

[18]     You also submitted a medical report from [XXX] 2010 as well as – as I’ve indicated – a letter from the [XXX] supporting your work with the [XXX].

[19]     You’ve also provided the termination letter from your employer in Oman and I find that your corroborative evidence also supports your testimony today and supports your credibility.

[20]     For you, the principal claimant, you gave testimony regarding your time in Gaza as a young man, your time with the [XXX]. You also gave testimony regarding engaging in peaceful demonstrations against the human rights abuses by Hamas. You were around 25 years at that time.

[21]     You also gave consistent testimony about the physical abuse that you suffered while you were in detention – and psychological abuse – hitting, beatings, being forces to sit on small chair for extended periods of time, also including psychological abuse during that time.

[22]     You also testified that you did receive some medical help including medication and at least five sessions of counselling after you were released that time from detention.

[23]     Based on the totality of the evidence before me, I find that you have established a nexus to political opinion with respect to your fears of Hamas in Gaza.

[24]     The international law and the refugee law as adopted here in Canada for Stateless Palestinians requires that you must demonstrate that you have a well-founded fear of persecution in one of the former habitual residences and that you are unable to return to any of the former habitual residences, and I find that you have met this legal test.

[25]     You have demonstrated through reliable evidence that you have a serious possibility, a well-founded fear of persecution in Gaza if you were to return today and you’ve also given sufficient evidence that you have no right of return either in Libya or Oman which are also former habitual residences for you.

[26]     Accordingly, I find that you have established your case under section 96.

[27]     Now, for your spouse, [XXX] and your three daughters – your three daughters [XXX] I find that they have also a nexus under a Convention ground, specifically membership in a particular social group, not only as family members to you, a victim of political persecution, but also because of gender.

[28]     Your wife and you both gave credible testimony with respect to your fears for your daughters because they are girls. It’s not just because they’re Palestinian, it’ s also because of the different treatment that girls and women receive both in Oman and in Gaza; so restrictions on travel, restrictions on their freedom of movement – not being able to leave the home without males or permission, also not able to dress how they wish. As you testified, even as children, young girls are forced to wear the hijab in Gaza and you’ve testified that you do not wish to have your young girls forced to wear the hijab, that they may not have the understanding of religion until they’re a little bit older and that you’re against this mandatory rule by some of the authorities both in Oman and in Gaza.

[29]     Accordingly, I find that the joint female claimants also have a nexus to gender, membership in a particular social group and that you would face a serious possibility of persecution if you return to Gaza today.

[30]     The test is the same for you and your daughters as stateless Palestinians; that you must have a well-founded fear in one of the former habitual residences and be unable to return to any of the former habitual residences.

[31]     For you, you lived in Gaza, that is a former habitual residence for you and I find that you have established a well-founded fear if you were to return to Gaza today.

[32]     For your daughters, I also find that they have established a well-founded fear in Oman, as young girls, as Palestinian young girls, who would not have freedom of movement, who would face ongoing discrimination not only because of their heritage as Palestinians, but also because of their gender and would not have freedom of movement or even freedom to control their own bodies or wear what they wish in Oman as well.

[33]     They would also face a forward-looking serious possibility of persecution and based on the totality of the evidence I find that you’ve each established that also do not have a right of return, to return to either Oman or, of course, we’ve indicated already the persecution in Palestine due to your husband’s detentions and the threats that were made by Haas authorities directly against his family members to intimidate him during detention as well.

[34]     With respect to state protection and internal flight alternative, the objective evidence in the National Documentation Package also supports your testimonies today. For example, the National Documentation Package item 2.1 which is a US Department of State Report with respect to Gaza and the Palestinian-occupied territories indicates that Hamas is responsible for unlawful and arbitrary killings, reports of systematic torture, reports of arbitrary detention, political prisoners, arbitrary unlawful interference with privacy, family and home, undue restrictions on freedom of expression, undue restrictions on freedom of the press and journalists and radio, substantial interference with rights to peaceful assembly and freedom of association, significant restrictions on freedom of movement, restrictions on political participation — there has been no national election since 2006 — corruption, unlawful recruitment of child soldiers, threats of violence motivated by anti-Semitism, violence or threats also targeting women, and women are also discriminated further with respect to their dress and even further restrictions on their freedom of movement as well in the Hamas-controlled Gaza.

[35]     National Documentation Package item 10.6, a Human Rights Watch Report 2018 reiterates much of the same evidence and gives more specific details with respect to the kind of physical and psychological persecution that the Hamas authorities mete out against their detainees which is consistent with your testimony.

[36]     This report indicates that the Hamas authorities in Gaza will blindfold detainees. They’ll force them stand or they force them to sit in small chairs for extended periods of time, usually during interrogations, to pressure them to confess. Detainees cannot speak, move, take medicine, sleep or eat without the permission of the guards.

[37]     The torture as practiced by the Palestinian Authority as well as Hamas may amount to crimes against humanity given its systemic practice over many years.

[38]     The National Documentation Package with respect to Oman – and this is somewhat dated in the National Documentation Package but you’ve also given credible testimony which is more recent given your previous residence in Oman. Nonetheless, it is somewhat dated. This is a document from 2014 unfortunately. It’s also a United States Department of State Report, also indicates the restrictions on women’ s freedom of movement and restrictions on women’s dress by authorities in Oman.

[39]     It also indicates that the government does not protect refugees in Oman, tight control over the entry of foreigners, limited access to protection for refugees in Oman. The authorities apprehend and deport hundreds of presumed economic migrants. It also will deport people if they don’t have authorized status by the employer, all consistent with your testimony today.

[40]     Also, it indicates a lack of access to basic services, so without an official sponsor – which is what you testified to with respect to an employer – it’ s very difficult for foreigners to have any access to basic services and this is somewhat dated but there were deportations as well as those who voluntarily chose to leave because of the conditions and treatment by the authorities in Oman.

[41]     So, I find that this evidence also supports not only the objective basis for your fears of return to Gaza and the kinds of persecution will suffer there if you return to Gaza today, but it also supports the lack of operationally effective state protection in Gaza for you as well.

[42]     With respect to internal flight alternative, as you’ve testified and as the objective evidence indicates, Gaza is a very small area controlled by Hamas at this time and very difficult – any kind of movement out or in is under the control of Hamas at this time and given that Hamas is the group that you fear and the group that has targeted you directly and has also made threats against your family members I find that it is neither safe nor objectively reasonable in all of the circumstances, including your particular circumstances to expect you to try to relocate somewhere within Gaza which is a very small, tightly-controlled area by Hamas and accordingly there is no internal flight alternative available to you in your particular circumstances.

Conclusion

[43]     For the foregoing reasons, I determine that principal claimant, [XXX], the joint claimant, [XXX] the joint claimants [XXX] are Convention refugees pursuant to section 96 and the Board therefore accepts your claim.

[44]     This is a split decision and I also find that with respect to the joined minor claimants [XXX] they are not Convention refugees pursuant to section 96 of the Act nor are they persons in need of protection pursuant to section 97(1) of the Act as US citizens.

[45]     As I’ve indicated there’s not sufficient evidence to make out that claim today against the United States of America. Accordingly, the Board rejects their claims.

[46]     Thank you very much. I wish you and your family all of the best. Thank you counsel. Have a good day everyone. Thank you very much.

—PROCEEDINGS CONCLUDED