Categories
All Countries Barbados

2020 RLLR 148

Citation: 2020 RLLR 148
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: D. Willard
Counsel for the Claimant(s): Annie N. O’Dell
Country: Barbados
RPD Number: TB8-29245
Associated RPD Number(s): TB8-29336; TB8-29337; TB8-29338
ATIP Number: A-2021-01105
ATIP Pages: 000057-000065

DECISION

[1]   MEMBER: This is an oral decision in the claims for refugee protection of XXXX XXXX XXXX XXXX XXXX XXXX the File number is TB8-29245, XXXX XXXX XXXX XXXX XXXX the File number is TB8-29336, XXXX XXXX XXXX TB8-29337 and XXXX XXXX XXXX the File number is TB8-29338.

[2]   The claimant’s are seeking protection in Canada; well the principal claimant is seeking protection in Canada pursuant to Section 96 of the Immigration and Refugee Protection Act on the basis of her membership in a particular social group that is women who are at risk due to domestic violence and domestic violence in Barbados.

[3]   The claimant indicates that she and the minors are all citizens of Barbados only and of no other country. The panel wishes to note that the written version of these reasons will not be edited for spelling, syntax, grammar and no references to applicable case law.

ALLEGATIONS:

[4]   The details of the claimant’s allegations are found in Exhibit 2.1 before the panel in the basis of claim form narrative and also in the additional narrative at Exhibit 4 which provides an update to the initial narrative.

[5]   In summary the claimant the principal claimant indicates that she was born in Barbados XXXX XXXX XXXX XXXX. That she and the minor claimant’s who are her children are all citizens of Barbados only. She states that her sons share a father XXXX XXXX who continues to reside in Barbados and from whom she obtained a letter of consent in order for them to travel to Canada.

[6]   She indicates that her daughter XXXX her father XXXX XXXX(ph) is the individual who the claimant is afraid of in Barbados. She details the nature of her relationship with XXXX (ph) in her narrative.

[7]   To summarize; she indicates that she met him a number of years ago when her eldest son was still quite young. She states that the relationship initially was positive but took a turn for the worst and became a very abusive one.

[8]   She indicates that over the years she’s lived in a variety of different places including with XXXX(ph) father, her mother she’s moved addresses a number of times but that XXXX(ph) has been abusive on a continual basis in a manner of different forms.

[9]   She indicates in her narrative that she tried to seek help from the police on a number of occasions. She indicates that help was not operationally adequate so to speak, it was not forthcoming to her.

[10]   She states that after a number of attempts to try to get help from them she gave up hope, particularly on the last occasion in the fall of 2018 when she had an altercation with XXXX (ph) in which the police were not helpful to her and gave her a solution that she believed would end up in her being charged with assault and being arrested.

[11]   It was at this point that she decided that she could no longer live in Barbados and promptly decided to come to Canada and seek help here. She entered Canada on XXXX XXXX of 2018 with the three minor children and shortly after arriving here filed a claim for refugee protection for herself and on their behalf as well.

DETERMINATION:

[12]   After assessing all of the evidence before me madam I find that you have established on a balance of probabilities that you have a well founded fear of persecution in your country Barbados on the basis of your membership in a particular social group, that is on the basis of your gender and as a woman who fears abuse in Barbados from a partner.

[13]   I find that you have established your identities that is your own and that of the minor claimant’ s on a balance of probabilities. I find as well that you’ve established the credibility of your allegations on a balance, the well foundedness of your fear.

[14]   I find that you’ve also provided a reasonable explanation for your delay in filing your claim here in Canada and that on a balance operational adequate state protection would not be forthcoming to you nor that there would be a viable internal flight alternative for you in Barbados.

[15]   I’m going to turn to my analysis now. First with respect to your personal identities I note madam that you did provide your original passports both for yourself and the minor claimants and I have certified true copies of them before me in Exhibit 1.

[16]   I note that all of the passport copies before me indicate the dates of birth and country’s of citizenship, places of birth that you have alleged.

[17]   I find therefore madam that you have discharged your onus of demonstrating your personal identities as per Section 106 of the Immigration and Refugee Protection Act and Rule 11 of the Refugee Protection Division rules. Accordingly I accept that all of you hold the identities that you allege.

[18]   With respect to credibility, madam I found you to be today a very credible witness. You were very straightforward, sincere, detailed, and heartfelt in the statements that you made. You were able to testify in a manner that was very consistent with the narrative that you provided of the events that occurred to you.

[19]   You were consistent with the documentation in Exhibits 2.1 and Exhibit 4. I have insufficient reason to doubt the sincerity and truthfulness of your allegations of abuse at the hands of XXXX XXXX (ph) in Barbados.

[20]   Accordingly I accept your allegations as truthful and in reaching that determination I’ve also been mindful of the documentation that you have provided and your explanation for the Jack of documentation from the police, I note that in Exhibit 6 through your counsel you provided a number of documents.

[21]   You provided the Barbados police medical report, the original of which you gave tome today, you provided a copy of what’s app messages to XXXX XXXX who you dealt with in Barbados, you also provided a print out of recent calls from XXXX(ph), contact information, you provided a number of letters of support from individuals who know about the problems that you’ve endured with XXXX(ph), you also provided a consent letter from XXXX XXXX for the purposes of your travel.

[22]   I note as well that there is a XXXX assessment from XXXX XXXX that I’ve also bore in mind in assessing your evidence today.

[23]   I’ve also madam been mindful of and been guided by chair person’ s Guideline 4 on women fearing gender persecution in their country of origin and I’ve also been mindful of counsel’s outline in her application regarding the, your emotional state and the XXXX symptoms that you are experiencing.

[24]   I find madam that you have established through your evidence and testimony today the credibility of your allegations and accept them as credible on a balance.

[25]   With respect to the delay in filing your claim here in Canada, I did ask you questions today about whether or not you were aware that you could file a claim for protection upon arrival. I note that you indicated that you weren’t aware that you could qualify as a refugee claimant and therefore you were guided by a friend who gave you some advice and told you to seek legal assistance and contact a shelter.

[26]   You described the steps that you took in detail that you contacted XXXX(ph) house, that you needed to apply for legal aid, seek legal assistance, I’ve bore in mind your particular circumstances and also have taken into account the fact that you were here on a valid visa, a valid visitor’s stay when you were seeking legal advice.

[27]   Therefore I find that the delay of approximately a month or two in filing your claim here in Canada is not indicative of a lack of subjective fear. I accept your statements as reasonable and therefore draw no negative inference from the delay which was a rather short one.

[28]   In terms of the well foundedness of your fear, I note that the documentary evidence in particular Item 5.5 indicates that domestic violence continues to be a major problem in Barbados.

[29]   There was a, so Item 5.5 is indexed as BRB105717.E its dated March 3rd of 2017 and it’s includes a survey of six hundred people in Barbados on behalf of Unicef s office for the Eastern Caribbean area and it noted that seventy six percent of respondents indicated that they thought domestic violence remained to be a major problem in Barbados.

[30]   Thirty six percent of respondents had someone close to them experience domestic violence by a spouse or partner. According to Freedom House violence against women remains widespread despite domestic violence laws in the country.

[31]   Moreover it similarly states that the violence, that violence and abuse against women continue to be a significant social problem.

[32]   A 2016 report by Inter American Developmental Bank entitled crime and violence in Barbados states that the recording of statistics related to violence in the home in Barbados is severely limited.

[33]   It goes on to state that information collection on domestic violence is inadequate due to under reporting, under documentation, administrative incapacity and a lack of a appreciation for the use of statistics and the policy formulation and monitoring cycle.

[34]   The Barbados government information service GIS further quotes the acting director of the Bureau of Gender Affairs as stating that the true incidents of domestic violence in Barbados is unknown since it is a crime that is seldom reported.

[35]   I will proceed to discuss in further the legislation and the applicability of the legislation under my state protection analysis but I would note that this document does go on to describe incidents of domestic violence, the prevalence of it in the country and therefore madam I find that your fear is, is a well founded one.

[37]   In particular with respect to the issue of state protection, I note that Item 2.1 the US Department of State report indicates that there is legislation in place to deal with domestic violence and incidents of rape and maltreatment of partners in Barbados.

[38]   I note that Item 2.1 states that the law prohibits domestic violence and provides protection to all members of the family including men and children.

[40]   The law applies equally to marriages and to common law relationships. The law empowers police to make an arrest after receiving a complaint, visiting the premises and having some assurance that a crime was committed and police made numerous arrests for domestic violence, penalties depend on the severity of the charges and range from a fine for first time offenders unless the injury is serious up to the death penalty for cases resulting in death of a victim.

[41]   It states that victims may request restraining orders which the courts often issue. The courts may sentence an offender to jail for breaching such an order. Violence…nevertheless it does go on to state that violence and abuse against women continue to be significant social problems. Police have a victim support unit but reports indicated the services provided were inadequate.

[42]   The same DOS report does state that there were public and private counselling services for victims of domestic violence, rape and child abuse. The government provided funding for a shelter for women who had faced violence, the shelter also served victims of human trafficking and other forms of gender based violence.

[43]   In making its assessment the panel must assess whether or not the state protection in Barbados is operationally adequate. It is not enough to just look at efforts that are being made. The panel must assess whether or not there is an operationally adequate level of protection for you in your country.

[44]   The panel notes that you described in your narrative in detail and again today in testimony the interactions that you had with the police. I note that your statements today were very consistent with the statements you made in your basis of claim form narratives.

[45]   You state that in your interactions with the police the response was not fruitful. You state that in the last incident that you had a male and female police officer come to you and suggest that you throw a pot of boiling water on the agent of persecution as a solution.

[46]   You also state that in your dialogue with a police officer about a restraining order they indicated to you that they would get back to you and nothing further came of it.

[47]   You described as well seeking that charges be pressed against XXXX(ph) in the fall of 2017 and that the police escorted you and him in the same police vehicle wherein he was verbally accosting you for charging him, the matter did go to court, however nothing came of it even though you followed up and tried and did appear at the court.

[48]   You stated today that you sought assistance from three different police stations that you’d gone to the police if you were to estimate more than twenty times, that you tried to call them and seek help from them over a period of a number of years.

[49]   The panel has bore this in mind in reviewing Item 5.5 which is a detailed summary of what is happening on the ground with police efforts in Barbados. I’m going to read out what I have noted from this document.

[50]   It states that in Item 5.5 that the IDP report notes that there has recently been an attempt to improve the inadequacies of data collection on domestic violence. Through the creation of a family conflict intervention unit designed to respond to and record more detailed information on domestic violence.

[51]   The same source adds that the unit was established by the police force in June 2013 and that as a result detailed data on domestic violence is limited only to cases reported from June 2013 onwards. It goes on to state that there were two hundred and twenty cases of domestic abuse reported to the Family Conflict Intervention Unit.

[52]   In November 2016 a Barbadian newspaper The Daily Nation reported that incidents of domestic violence are on the rise noting the police logged four hundred and thirty five reports of domestic violence cases between January 1st and October 31st 2016, a slight increase over four hundred and twenty nine cases reported in 2015.

[53]   The same RIR indicates that there is legislation in place to address marital rape and domestic violence. There are also amendments to the domestic violence protection orders act that was introduced in 2016.

[54]   I note that this item is also, this legislation is also made, there’s a reference made to it in Item 5.6 before the panel.

[55]   The…under the state protection and police segment of this item the panel notes that the following is stated. It adds that victims may request restraining orders which the court often issued and the courts may sentence an offender to jail for breaching such an order.

[56]   According to the IDP report there is no government run shelter in Barbados for victims of domestic violence.

[57]   However sources note that the government provided a subvention to the Business and Professionals Women’s Club of Barbados to run a shelter for abused women which is the only shelter available to abused women in Barbados. According to the IDP report the Barbados government is the shelter’s main source of funding.

[58]   With respect to the police according to Freedom House, police responsiveness is often slow and inadequate in cases of violence against women. Country reports 2015 similarly states that there are several reports that police did not responds promptly or adequately to complaints of sexual assault and domestic violence.

[59]   Barbados today reports that police are reluctant to respond to cases of domestic violence. It indicates that there is a victim support unit within the police force.

[60]   According to the same source this unit consists of civilian volunteers and offers assistance primarily to female victims of violent crimes but reports indicated services provided were inadequate.

[61]   Sources also note the existence of a police family conflict unit. The IDP report explains that this unit was established due to a perceived need to sensitize officers responding to family and domestic violence cases. It reported that police were receiving training on domestic violence.

[62]   With respect to support services there is reference to shelters that offer psychological counsellors, intervention services. Of note is that at the final page of this report it states that there was a crisis center and twenty four hour hotline established as a conduit for the shelter for battered women.

[63]   However the same source states that the walk in crisis center was closed in October 2014 due to a reduction in fonds. There is a service alliance, violent encounters, a non profit organization.

[64]   According to the information before the panel this foundation records and monitors incidents of domestic violence and provides free counselling and legal advice, operates a hotline and tries to raise awareness.

[65]   After assessing all of this information madam and taking into consideration your own personal interaction with the police and authorities in Barbados.

[66]   The panel finds that you testimony which is found to be credible in combination with the information that we have on the adequacy of the enforcement services in Barbados leads the panel to determine that you have in your circumstance discharged the onus of demonstrating with clear and convincing evidence that operationally adequate state protection would not be forthcoming to you.

[67]   In reaching this determination the panel is mindful of the added services that may be present in Barbados. However it is clear that there is an ongoing lack of effectiveness in terms of the services provided by the police in Barbados.

[68]   The panel notes that the reports are consistent with one another in Item 2.1 and Item 5.5 and others that while there are efforts being made the services provided are deemed to be inadequate from the police and that there isn’t always responsiveness on their part.

[69]   Taking this into consideration madam with your own personal interactions with the police I find that you have discharged the onus of demonstrating that operational adequate state protection would not be forthcoming to you in Barbados.

[70]   With respect to an internal flight alternative, I have bore in statement madam your, bore in mind your statement that you know that Barbados is small and that you’ve lived in a different, that you’ve lived in different locations and tried to seek protection from different police stations.

[71]   I note that according to Item 1.3 of the national documentation package Barbados is a very small country. The square kilometers are four hundred and thirty in total. The population is estimated at less than three hundred thousand people as of July 2018.

[72]   Given madam the small size of the country and the ongoing threats being issued to you through various people from XXXX(ph) which demonstrate a clear continued interest and determination to find you, his threat that he will locate you and kill you if you were to return to Barbados.

[73]   I find that you have demonstrated that there would not be a viable internal flight alternative for you that would be safe in Barbados given the small size of the country making it very easy for XXXX(ph) to locate you should you try to relocate throughout the country and his past efforts and abilities to continually find you, harass you and abuse you on an ongoing basis.

[74]   In conclusion I find madam that you have demonstrated that you have established your evidence on a balance of probabilities. I note that you have indicated that your children have also been abused and threatened by him. I find therefore that you have established a well founded fear of persecution on your own behalf but also on their part.

[75]   I finally note as well that you have met the onus of demonstrating that you meet the definition of a Convention refugee.

[76]   That you have established the components of Section 96 and established that there is a serious possibility of persecution for you on the basis of your membership in a particular social group that is on the basis of your gender and as a woman who is fearful of domestic violence, for your children as members of your family as well.

[77]   I therefore find madam that you are all Convention refugees and I accept your claims.

[78]   Thank you. We are concluded.

———- REASONS CONCLUDED ———-

Categories
All Countries Jordan

2020 RLLR 147

Citation: 2020 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2020
Panel: Kari Schroeder
Counsel for the Claimant(s): Hachem Hassan Fawaz
Country: Jordan
RPD Number: VC0-02662
Associated RPD Number(s): VC0-02663
ATIP Number: A-2021-01106
ATIP Pages: 000190-000203

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] (the “principal claimant”) as a stateless Palestinian and her son [XXX] (the “minor claimant”) as a citizen of Jordan, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

[2]       As the claimant’s allegations stem from gender-based violence and discrimination, I have applied the Chairperson’s Gender Guidelines in rendering a decision.[2]

ALLEGATIONS

[3]       The following is a brief synopsis of the claimants’ allegations.

[4]       The principal claimant was born in Saudi Arabia to Palestinian parents. The minor claimant was born in Saudi Arabia to the principal claimant and a Jordanian man. The principal claimant has been divorced from her Jordanian husband since 2011. In Saudi Arabia, the principal claimant suffered from various forms of discrimination due to her gender, her statelessness and her marital status.

[5]       The principal claimant obtained a [XXX] in [XXX] from [XXX] in Syria in 2004. She married her husband in 2007. She worked as a [XXX] in Saudi Arabia from 2005-2018. She was subjected to sexual harassment, employment discrimination and attempted sexual assault by her employer.

[6]       During the marriage, the claimants both suffered repeated physical and emotional abuse. The principal claimant was able to leave her husband and obtain a divorce. The ex-husband married another woman and provided little to no support for the claimants. He visited the minor claimant occasionally but was critical and abusive. He repeatedly threatened to take the minor claimant to Jordan to live with him. These threats intensified when the ex-husband learned that he might have to leave Saudi Arabia permanently. He informed the principal claimant that he would be leaving Saudi Arabia and returning to live in Jordan, and that he had decided to take his son with him. Fearing that she would lose her son, the principal claimant decided to leave Saudi Arabia and came to Canada in [XXX] 2018.

[7]       The principal claimant fears that if she returns to Saudi Arabia, she will continue to face discrimination and harassment as a woman. She also fears that her ex-husband will follow through on his plans to kidnap her son and force him to live in Jordan.

DETERMINATION

[8]       I find the principal claimant is a Convention Refugee pursuant to section 96 of the Act.

[9]       I find the minor claimant is not a Convention Refugee or person in need of protection pursuant to section 96 or section 97 of the Act.

ANALYSIS

Identity

[10]     I am satisfied that the claimants are not citizens of Saudi Arabia even though they were both born in that country. Birth in Saudi Arabia does not entitle a person to citizenship; it is granted only if a person’s parent is a Saudi citizen.[3]

[11]     The minor claimant’s identity as a national of Jordan has been established through a certified copy of his passport. He acquired this citizenship through his biological father. I am satisfied that the minor claimant is a citizen of Jordan and no other country.

[12]     The principal claimant is a stateless Palestinian. She has established her identity through a temporary passport from the Palestinian Authority as well as a travel document from Egypt. Both claimants also have Saudi Arabia resident cards.

Credibility

[13]     The principal claimant was a credible witness. She testified in a straightforward manner and offered spontaneous details without being prompted. At no point did I find she was evading answering my questions or embellishing her responses. I have several documents before me to support her allegations, including proof of her profession as a [XXX], proof of her divorce and copies of text message exchanges between her and her ex-husband. Based on the presumption of truthfulness, the corroborative evidence, and the claimants’ consistent testimony, I accept their allegations as credible. I accept that the claimants were both victims of family violence. I also accept that the claimant faced significant challenges living in Saudi Arabia as a woman and a foreigner, and that she ultimately left the country out of fear that she would lose her son.

Principal Claimant

Potential Exclusion under Article 1(f)(b)

[14]     I have considered whether the principal claimant is excluded under Article 1F(b) for child abduction, however, I find that the principal claimant is not excluded. The panel did not notify the Minister due to the finding, upon review of the evidence, that the principal claimant could likely rely on the defence of imminent harm. As explained in greater detail in my reasons, I find the claimants were victims of domestic violence in the past, that the principal claimant left Saudi Arabia out of imminent concern for her son’s well-being, and that these findings are clearly determinative of the exclusion issue.

[15]     In applying Article 1F(b) the focus is on whether the acts could be considered crimes under Canadian law.[4] In this case the relevant provision is the offence of child abduction under Section 283(1) of the Criminal Code, which states:

Abduction

283 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

  • an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
  • an offence punishable on summary conviction.[5]

[16]     Further, Section 285 provides for a defence of imminent harm to Section 283(1). Section 285 states:

No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.

[17]     In Mendez, the Ontario Court of Appeal considered the purpose and intent of the 1993 amendments to the Criminal Code which set out the current version of the imminent harm defence.

Bill C-126 amends s. 285 so that the accused will also have a defence if that person took the child in the course of “escaping from danger of imminent harm.” This amendment is intended to create a defence where a person leaves a physically abusive marital relationship and takes along the children. A battered woman should not have to choose between staying with her abuser, leaving her children with him, or escaping the violence with the children but running the risk of a charge of parental child abduction. The amendment is not, however, intended to create a broad defence.[6]

[18]     In this case, the principal claimant could not take her son out of Saudi Arabia without her ex-husband’s permission. Even though the minor claimant resided fully with his mother, the minor claimant’s residency in Saudi Arabia depended entirely on his father’s sponsorship. Therefore, if the minor claimant wanted to leave the country, his father had to apply for an exit visa for him. The principal claimant testified that she had been trying to leave the country with the minor claimant, and that it took a lot of convincing before he finally agreed to allow her to take the minor claimant to the United States for a [XXX] conference. However, unbeknownst to the ex-husband, the principal claimant simultaneously applied for a Canadian visa, as her ultimate intention was to claim refugee protection in Canada. Therefore, although the father technically consented to his son leaving the country, he was unaware of what he was consenting to, and I find she did not obtain the father’s full consent to take her son out of Saudi Arabia.

[19]     However, the facts of this case give rise to the defence of imminent harm. The principal claimant testified to a long-standing pattern of abuse against the claimants through the duration of the marriage and beyond. During the father’s sporadic visits with his son, he was physically and emotionally abusive. As a follower of a strict interpretation of Islam, he became angry with his son when his hair was too long. On one occasion he hit the minor claimant for listening to music that was ‘forbidden.’

[20]     Moreover, the ex-husband consistently threatened to take the minor claimant away from her, and to take him out of Saudi Arabia to live with him in Jordan. The principal claimant, as a woman in Saudi Arabia with very few legal rights, even regarding her own child, would have no recourse to stop this from happening. She has no status in Jordan and would not be able to go to that country to protect her son from further abuse. Further, I find that if the father did follow through on his threat to remove the minor claimant from his mother’s care, the minor claimant would continue to experience physical and emotional abuse at the hands of his father. Even if the father did not follow through on his threats to remove the minor claimant from Saudi Arabia, the minor claimant would likely be forced to live with his father in Saudi in the absence of his mother. Therefore, the principal claimant was left with the choice to take her son out of the country, or leave him behind and risk not only permanent separation from him but leaving him with his abusive father. In my view this is precisely the type of scenario contemplated in Mendez.

[21]     As a result, I find that the defence of imminent harm does apply to the principal claimant’s actions. I have found the principal claimant to be credible in terms of the mistreatment she and the minor claimant suffered at the hands of her ex-husband. Saudi Arabian laws are inherently persecutory towards women and there are no laws protecting women and children from domestic violence. I am satisfied on the evidence that the imminent harm defence applies in the particular circumstances of the principal claimant. I therefore find that there are no serious reasons for considering the principal claimant excluded under Article 1F(b) for child abduction.

Countries of Former Habitual Residence (CFHR)

Egypt

[22]     I find that Egypt is not a CFHR in this case. Although the claimant is in possession of an Egyptian travel document, she has never resided in that country. Rather, she pursued an online [XXX] through an Egyptian university while residing in Saudi Arabia. Although she did visit Egypt frequently to write exams, she never had de facto residence in that country. The principal claimant testified that the longest period of time she ever remained in Egypt was for one month, and that she lived in a university dorm. She never had a fixed address. Other visits to the country were brief, lasting a matter of days. On many occasions she would leave Saudi Arabia in the morning, write her exam in Egypt, and then fly back to Saudi Arabia on the same night. During the entire period, she maintained a residence, employment and her son’s schooling in Saudi Arabia. On the evidence I am satisfied that Egypt is not a CFHR.

Syria

[23]     The principal claimant resided in Syria for a period of 8 years while she attended [XXX] school. She testified that she had a student residency permit and lived in that country as a [XXX] during the entirety of her education. I am satisfied that Syria is a CFHR in this case.

Saudi Arabia

[24]     The principal claimant also has de facto residence in Saudi Arabia. She was born in that country, and resided there for the majority of her life with the exception of her eight years in Syria. She attended school, worked as a [XXX] and raised her son in that country. I find that Saudi Arabia is a CFHR in this case.

Well-founded fear of persecution

[25]     In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities, he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any and all of his or her other countries of former habitual residence.[7]

[26]     I find that the principal claimant meets this test. As explained in more detail below, the principal claimant has established a well-founded fear of persecution in Saudi Arabia. Further, she cannot return to her other CFHRs, which in this case is Syria. As the principal claimant’s student residency expired in Syria in 2004, and she no longer has any status in that country, I am satisfied that the principal claimant is unable to return to Syria.

[27]     In terms of her fear of returning to Saudi Arabia, the principal claimant testified to the enormous challenges she faced as a woman, a stateless person, and a single, divorced mother. As a female [XXX] she experienced repeated sexual harassment from her male clients. She was subjected to an attempted rape by her male supervisor. She was not able to drive due to her gender. Beginning in Grade 4, she was forced to wear a full length abaya to cover her body, hair and face, which she was adamantly opposed to but powerless to argue against. She testified that as a woman, she was unable to move freely about, as the law dictates that a male guardian must accompany her in any public setting. Further, even though the principal claimant was divorced from her husband, she experienced constant threats from him. She testified that now that he knows she has made a refugee claim in Canada, if she returns, the punishment against her “would be multiplied.”

[28]     I find that the principal claimant has established a nexus to the Convention Ground of membership in a particular social group, namely as a woman fearing gender-based persecution. The laws and customs of Saudi Arabia dictated everything from her manner of dress to her mode of transportation. As a non-citizen, the principal claimant also faced further problems that women with citizenship do not. For example, whereas women are now able to drive in Saudi Arabia, women without citizenship cannot. She experienced many years of domestic violence and did not have the right to prevent her ex-husband from taking her son away. As will be discussed, the law in Saudi Arabia regulates many aspects of women’s lives in the name of religion, including who they can marry and whether and where they can work, study or travel. The objective evidence before me also support’s the principal claimant’s allegations.

[29]     Saudi Arabia is a deeply patriarchal society that severely restricts the rights and freedoms of women. Women are not considered to be full, independent or autonomous persons with agency. They are effectively rendered legal minors.[8] For example, a woman’s testimony in court is weighed as half of that of a man.[9] A report by Americans for Democracy & Human Rights in Bahrain and the Bahrain Institute for Rights and Democracy explains the situation for women in this way:

Saudi Arabia’s male guardianship system is inextricably related to broader understandings of women’s places in Saudi society. The “ideal Saudi woman” is understood to be an “obedient wife and mother, educated as her family permits, segregated from gender mixing unless necessary, and entrusted with preserving the Islamic morality and traditional values promoted by the Saudi state.” In this way, the ideal Saudi woman is meant to be dependent on a man in the family rather than be the head of a family. This understanding of a woman’s role in the family and in society underpins the level of control men have over women, particularly over their wives and daughters. For example, this level of control allows a father to declare a run-away daughter to be “disobedient,” and to obtain the assistance of the police in returning his “disobedient” daughter to his care.[10]

[30]     Freedom House reports that women are subject to “extensive legal and societal discrimination, most notably through the guardianship system, in which every woman must rely on a close male relative to approve basic activities.”[11] According to Amnesty International, women are required to have permission from their male guardian — their father, husband, brother or son — to enrol in higher education, seek employment, travel or marry.[12] This source also states that women are inadequately protected against sexual and other forms of violence. Human Rights Watch adds that women may be required to seek guardian consent to access healthcare, obtain a passport or be discharged from prison.[13] In another report, Human Rights Watch maintains that recent gender-related reforms in Saudi Arabia are partial, incomplete and in some cases, nullified by the guardianship system, which remains largely intact.[14] This is echoed by Americans for Democracy & Human Rights in Bahrain and the Bahrain Institute for Rights and Democracy who state that the Saudi Arabian government has not demonstrated the necessary political will to see reforms through and has failed to fully implement and enforce reform.

[31]     The Department of State (DOS) finds that widespread societal exclusion enforced by, but not limited to, state institutions restricts women from using many public facilities.[15] It states that the law requires women to sit in separate, specially-designated family sections. They often cannot consume food in restaurants that do not have such sections. According to the DOS, women risk arrest for riding in a private vehicle driven by a male who is not an employee (i.e. a hired chauffeur or taxi driver) or a close male relative. Furthermore, cultural norms enforced by state institutions require women to wear an abaya in public. The DOS reports that women have unequal marital, inheritance, divorce, child custody, citizenship, political and property rights.

[32]     Women in Saudi Arabia do not have rights equal to that of men. In this case, the principal claimant’s freedom to make decisions about her movement, education, employment, healthcare, travel, marriage, and clothing are restricted by custom and the guardianship system in Saudi Arabia.

[33]     Not only do the conditions in Saudi Arabia not afford women with basic rights, women’s ability to make their own decisions about issues central to their lives is seriously hampered. This represents serious, sustained and systematic limitations on fundamental issues in one’s life that amount to persecution. The principal claimant seeks to live free of gender norms in Saudi Arabia. Based on the totality of the evidence, I find that the principal claimant would face a serious possibility of persecution as a woman in Saudi Arabia.

State Protection

[34]     In terms of state protection, I do not find that it would be available to the principal claimant since the state enforces these violations of human rights and fundamental freedoms.

Internal Flight Alternative

[35]     I also do not find that the principal claimant could live elsewhere in the country since the government enforces the persecutory laws throughout the country.

Minor Claimant

[36]     The minor claimant is a citizen of Jordan, and I have considered whether he has a well-founded fear of persecution in that country. I have already found that the minor claimant would face an imminent harm in Saudi Arabia from his father, however, he is not a citizen of that country and I have therefore not assessed whether he has a well-founded fear in that country. The principal claimant alleges that her son faces a risk in Jordan, as he may have to live in that country with his abusive father. She also argues that she would be permanently separated from her son, as she does not have status in Jordan and would not be able to accompany him to that country.

[37]     The current location of the minor claimant’s father is not clear from the evidence. The principal claimant testified that she has not spoken to her ex-husband in about a year. She believes he still lives in Saudi Arabia, as he remarried and has another family there, and he previously sent her messages from his Saudi Arabia phone number, however, the principal claimant did hear from a mutual friend that he had also set up a business in Jordan. He also repeatedly told the principal claimant that he would be relocating to Jordan. Ultimately the principal claimant does not know with certainty in which country her ex-husband resides full­ time.

[38]     In this case then, the minor claimant would be returning to Jordan, a country that he has never lived in. His family there consists of his father, who may or may not live in the country full-time, and his elderly grandmother. The principal claimant alleges that she believed that her ex-husband would remove her son from her care, simply as a way to torment her, however, that he ultimately has shown no interest in raising for or caring for the child.

[39]     I have considered the principal claimant’s arguments regarding family separation and am aware that the minor claimant is an [XXX]-year old boy who would be returning to a country he has never lived in, to face an uncertain and unknown situation. However, I find that the claimants have not established with sufficient evidence that the minor claimant meets the definition of a Convention Refugee or person in need of protection. There is insufficient evidence to show that he would be forced to live with his abusive father, as it is not clear that the father even lives in the country. Likewise, there is insufficient evidence to show what the minor claimant’s situation would be if his father was not in the country, for example, that there would be no long-term or foster care available to a minor without family to care for him. There is insufficient evidence to establish that he would be an ‘abandoned child’ in the context of the facts in Patel.[16] I have considered the objective evidence regarding child abuse in Jordan, and agree that there are serious gaps in the legal protection afforded to children who are abused by family members.[17] However, there is insufficient evidence to establish that this would be, on a balance of probabilities, the situation facing the minor claimant. Further, the objective evidence is silent on the treatment of unaccompanied children in Jordan. While I am extremely sympathetic to the claimants’ situation, and the humanitarian and compassionate factors that arise from this case, without clearer evidence to establish the risks the minor claimant would face, the principal claimant has not met her onus of establishing that the minor claimant would face a forward­ looking risk under section 96 or 97.

[40]     I am mindful in this case of the court’s comments in Chavez Carrillo:[18]

[15] It is established that if an applicant has the citizenship or nationality of a country where he or she has no well-founded fear of persecution, protected person status will be denied…. This Court has held on several occasions that there is no concept of family unity incorporated into the definition of Convention refugee.

            …

[17]     However, the human aspect of this case is clear, and it cannot be ignored. At first glance, the RPD’s decision seems to have as a direct consequence the separation of the applicant from his mother. In the event of a departure, the mother will have to choose between allowing her son to leave by himself for the United States and accompanying him to a country where she does not benefit from any legal status.

[18]     Fortunately, the solution to this problem can be found in subsection 176(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]. It provides that “[a]n applicant may include in their application to remain in Canada as a permanent resident any of their family members. Therefore, when the applicant’ s mother files an application for permanent residence (if she has not already done so), she will certainly include the applicant as a family member. The mother and her minor son will surely not be separated merely because he was not granted refugee status and she was.

[41]     Based on the evidence before me, I find that the minor claimant would not face a serious possibility of persecution in Jordan as a minor child, nor would he face, on a balance of probabilities, a forward looking risk of torture or personalized risk to life or risk of cruel and unusual treatment or punishment.

CONCLUSION

[42]     I find that the principal claimant is a Convention Refugee pursuant to section 96 of the Act, and the Board therefore accepts her claim.

[43]     I find that the minor claimant is not a Convention Refugee or person in need of protection pursuant to the Act, and the Board therefore rejects his claim.


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

[2] IRB Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada,March 1993, updated November 1996, and R. v. Lavallee, [1990] 1 S.C.R. 852.

[3] Exhibit 3, National Documentation Package (NDP), Saudi Arabia, March 31, 2020, Item 3.1 Response to Information Request (RIR) SAU105183.E.

[4] Vlad, Anghel v. M.C.I. (F.C., no. IMM-1800-06), Snider, February 15, 2007, 2007 FC 172 at para. 22; M.C.I. v. Diaz, Paola Andrea Pulido (F.C., no. IMM-4878-10), Phelan, June 21, 2011, 2011 FC 738 at para. 12; Radi, Spartak v. M.C.I. (F.C., no. IMM-2928-11), Near, January 5, 2012, 2012 FC 16 at para. 23.

[5] Criminal Code (R.S.C., 1985, c. C-46).

[6] R v. Mendez, (1997) 32 O.R. (3d) 67.

[7] Thabet v. MCI, [1998] 4 FC 21, 1998 CanLll 9063 (FCA).

[8] Exhibit 3, NDP, Item 5.2.

[9] Exhibit 3, NDP, Item 5.1.

[10] Exhibit 3, NDP, Item 5.5.

[11] Exhibit 3, NDP, Item 2.4.

[12] Exhibit 3, NDP, Item 2.2.

[13] Exhibit 3, NDP, Item 2.5.

[14] Exhibit 3, NDP, Item 5.2.

[15] Exhibit 3, NDP, Item 2.1.

[16] Canada (Minister of Citizenship and Immigration) v. Patel, 2008 FC 747 (CanLII), [2009] 2 FCR 196

[17] Exhibit 3, NDP, Jordan, March 31, 2020, Item 2.1.

[18] Chavez Carrillo 2012 FC 1228.

Categories
All Countries Nigeria

2020 RLLR 146

Citation: 2020 RLLR 146
Tribunal: Refugee Protection Division
Date of Decision: November 2, 2020
Panel: Zonia M. Tock
Counsel for the Claimant(s): Gabriel Ukueku
Country: Nigeria
RPD Number: VC0-01443
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000184-000189

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) concerning [XXX] (the “claimant”) who is a citizen of Nigeria and is making a claim for refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

DETERMINATION

[2]       I find that the claimant is a Convention refugee pursuant to section 96 of the Act, for the following reasons.

ALLEGATIONS

[3]       I will briefly summarize the claimants’ allegations, which are found in his Basis of Claim (BOC) form[2]. The claimant is a member of the Indigenous People of Biafra (IPOB), which is a group striving for the independence of Biafra. The claimant considers himself a freedom fighter as he has not only become a member of IPOB but has risen in its ranks to become a member of the [XXX] team. As such, he was responsible for [XXX] about the group and its activities, as well as mobilizing Biafrans to join peaceful rallies.

[4]       In 2018, the claimant’s father was killed by Nigerian military officers after they raided his home trying to arrest the claimant. The claimant’s father tried to prevent the claimant’s arrest, which resulted in his death. Soon thereafter, the claimant travelled to Canada for a conference. While in Canada, the claimant’s nephew was killed by the Nigerian authorities. As a result, the claimant remained in Canada for seven months. However, he did not make a claim for protection because his wife and children were still in Nigeria and he wanted to ensure they were safe. In [XXX] 2019, the claimant was advised that the situation was improving, thus he returned to Nigeria.

[5]       However, in [XXX] 2019, an IPOB member alerted the claimant that the Nigerian military were on their way to his house. This allowed the claimant and his family to flee the area. The claimant’s wife and children escaped to Cameroon while the claimant travelled to Canada and made a claim for protection. While in Canada, the claimant has become part of the IPOB Calgary League and continues to support the cause.

Identity

[6]       The claimant’s identity as a national of Nigeria is stablished by the sworn statement in his BOC form and the certified copy of his Nigerian passport[3] before me.

Nexus

[7]       The claimant alleges that he will be persecuted by the Nigerian government due to his membership in IPOB. I find there is a nexus between this allegation and the Convention ground of political opinion. As such, I have considered this claim under both sections 96 and 97(1) of the Act.

Credibility

[8]       There is a presumption that sworn testimony is true unless there is sufficient reason to doubt its truthfulness. In this case, I found the claimant to be a credible witness. His testimony was heartfelt and passionate. The claimant became emotional when asked to explain why he chose to join IPOB. He testified that his parents had taught him about the injustices committed against the Biafran population during the 50s and 60s, and he also observed the continued targeting of Biafrans by the Nigerian government. The claimant testified that the Biafran community did not want to be part of Nigeria because of the way the country is being managed and because of the injustices committed against the Biafran people.

[9]       The claimant was also able to credibly explain what appeared to be inconsistencies in the evidence before me. For example, the claimant was asked why he did not make a claim for protection during the [XXX] 2018 to [XXX] 2019 period that he was in Canada. The claimant’ s father had been murdered prior to his travels to Canada and his nephew had also been murdered while the claimant was in Canada, thus it would be reasonable to expect that the claimant would make a claim for protection at that time. However, the claimant explained that during that trip, his wife and children were still in Nigeria. His top priority is their safety, thus he had to ensure he could travel back to keep them safe. I find this explanation to be credible given that once the claimant was able to secure his family’s safety in Cameroon, he made a claim for protection.

[10]     I also questioned the claimant regarding a newspaper article in evidence which indicates that the claimant and his wife were missing after a raid by the military.[4] The article is dated November 2019; however, the military raid which led to the claimant leaving Nigeria took place in [XXX] 2019. The claimant explained that there was a second raid of his home, where his belongings were destroyed by the military. This second raid took place in [XXX] 2019, and that is the one being referenced in the article. I find this explanation to be credible as the claimant mentioned a second raid of his home in his BOC form.

[11]     I have also considered the documentary evidence before me, including evidence of the claimant’s membership in IPOB Calgary,[5] his membership in IPOB in Nigeria,[6] and the continued targeting of IPOB members in Nigeria.[7]

[12]     Based on the totality of the evidence before me, I accept the claimants’ allegations as credible.

Country Conditions

[13]     I have reviewed the National Documentation Package (NDP)[8] before me and I find that Country condition information before me establishes that the claimant has a well-founded fear of persecution in Nigeria.

[14]     The evidence before me is that IPOB is a separatist organization considered to be a secessionist group which argues that the people of Biafra have been politically, socio­economically and culturally marginalized in Nigeria.[9]

[15]     There are reports of extrajudicial executions, use of excessive force by military, arbitrary arrests and detentions, torture and evidence of peaceful gatherings being dispersed by the firing of live ammunition with little or no warning.[10]

[16]     The President’s stance on Biafran independence is described as dismissive at best, and at times hostile.[11] However, in 2017, the Nigerian military designated the IPOB as a terrorist organization; a label which has been rejected by international observers.[12] A Response to Information Request (RIR) before me indicates that following that designation, IPOB members have been targeted:

The Abia State Police Commissioner stated, subsequent to the terrorist designation and the ban on IPOB activities, that anyone caught with “Biafran materials would be arrested and prosecuted.”

The Anambra Police Commissioner, quoted by the Punch, a Nigerian news publication, indicated the ban would be enforced and anyone involved in the activities of the IPOB would be charged with terrorism, which carries a minimum sentence of twenty years and a maximum sentence of the death penalty.

Since August 2015, the security forces have killed at least 150 members and supporters of the pro-Biafran organization IPOB (Indigenous People of Biafra) and injured hundreds during non-violent meetings, marches and other gatherings. Hundreds were also arbitrarily arrested.[13]

[17]     Considering that the Nigerian government has labeled the IPOB as a terrorist organization and that they continue to target members of the IPOB, I find that there is more than a mere possibility that the claimant would be persecuted if he returns to Nigeria.

State Protection and Internal Flight Alternative

[18]     In this case, the agent of harm is the government. The authorities are targeting members of IPOB and have labeled them a terrorist organization. As such, it would not be reasonable to expect the claimant to turn to the state for protection.

[19]     In terms of an internal flight alternative (IFA), the government of Nigeria is in control of the entire state. Its persecutory declaration is in place in the entire territory; thus it would not be feasible for the claimant to move elsewhere in Nigeria and be safe. As such, I do not find that an IFA exists in this case.

CONCLUSION

[20]     For the reasons outlined above, I find the claimant is a Convention refugee. As such, his claim is accepted.


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

[2] Exhibit 2.

[3] Exhibit 1.

[4] Exhibit 4.

[5] Exhibit 4.

[6] Exhibit 7.

[7] Exhibits 4 and 5.

[8] Exhibit 3, National Documentation Package (NDP), Nigeria, July 31, 2020.

[9] Exhibit 3, NDP, Item 13.2 Response to Information Request (RIR) NGA105658.E.

[10] Exhibit 3, NDP, Item 13.2 RIR NGA105658.E.

[11] Exhibit 3, NDP, Item 13.2 RIR NGA105658.E.

[12] Exhibit 3, NDP, Item 13.5 RIR NGA106308.E.

[13] Exhibit 3, NDP, Item 13.5 RIR NGA106308.E.

Categories
All Countries Iran

2020 RLLR 145

Citation: 2020 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Amir Derakhshanfar
Country: Iran
RPD Number: VC0-00019
Associated RPD Number(s): VC0-00031, VC0-00034, VC0-00035
ATIP Number: A-2021-01106
ATIP Pages: 000178-000183

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in this case, and I am ready to render my decision orally.

[2]       These are the reasons for the decision in the claim of [XXX], the principle claimant, [XXX], the associate claimant, and their two adult female children, claimants [XXX] and [XXX] who are all claiming to be citizens of Iran and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       These claims were joined according to rule 55 of the Refugee Protection Division Rules.

Allegations

[4]       The claimants’ allegations are set out in their basis of claim forms and in their testimonies. The following is a brief summary:

[5]       The principle claimant and both of her adult daughters are Christian converts, and they fear persecution due to their conversion from Islam. The associate claimant does not identify as Christian but believes that people should be able to choose their own religion freely. Furthermore, he acknowledges a belief in God, but is not a follower of Islam as it is required in Iran.

Determination

[6]       I find that the claimants are convention refugees as they have established a well-founded fear of persecution based on convention grounds. Namely religion in the case of the principal claimant and the two adult children claimants and political opinion in the case of the associate claimant.

Analysis

Identity

[7]       I find the claimants’ identities as nationals of Iran is established by their testimonies and the supporting documentation filed including certified true copies of their passports in Exhibit 1.

Credibility

[8]       When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. However, this presumption does not apply to inferences or speculation for which there is no evidentiary basis.

[9]       The claimants testified in a straightforward and detailed manner and with no inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me that were not explained.

[10]     The female claimants all described in detail their beliefs and contrasted that with the religion into which they were born in Iran. The principle claimant said, “If we say that we are God’s children in any other religion, meaning our previous religions, if I were to say this, that I am a child of God, they would punish me.  They would never allow me to continue with my life.  Now, I am certain that God, the father, supports me.” Her daughters echoed the support that they feel from their new religion, particularly while their mother was facing a serious health challenge.

[11]     The associate claimant described how he found out about his family’s conversion, and he expressed his tolerance for other religious views. He credibly described how he wished he had known about this conversion sooner and clearly supported his family members’ rights to make their own decisions about religion. As for himself, he explained that he had not converted, although he had learned a fair bit about Christianity from his family, and he remains open-minded.

[12]     I have found all of their explanations and descriptions to be compelling and clear. Furthermore, they provided the following relevant probative documents: There is a letter on page 17 of Exhibit 4 from [XXX] (ph) from [XXX] in [XXX] in the Calgary Assembly of [XXX] and [XXX] Church. The principle claimant has been attending since [XXX] 2018. Her daughters joined afterwards.

[13]     The Pastor said that the principle claimant, “gave a beautiful testimony during a Sunday church service in regard to how she became a believer in Jesus Christ and accepted him as her personal saviour” and studied for baptism on [XXX] of 2019. Then she joined the Bible study group according to the Pastor. The Pastor said that the daughters were baptized on [XXX] of 2020 and that they too gave public testimony of their faith in Jesus Christ.

[14]     I find these documents are relevant and served to corroborate the core allegations of the three female claimants that they are Christian converts. The narrative and testimony of the claimants corresponds to the ample objective evidence about conditions in Iran pertaining to converts from Islam as well as those who oppose the government-imposed religion.

[15]     Apparently I have no reason to doubt the central elements underpinning the claim for protection nor the claimant’s stated subjective fear. I found all four claimants to be credible witnesses and therefore have accepted as true the facts that they have alleged in support of their claim.

Nexus

[16]     I find the persecution the principle claimant and her adult daughters face has a nexus to one of the five convention grounds, that of religion. And I find that the associate claimant has established a nexus to political opinion and therefore this claim will be assessed under s. 96.

[17]     I acknowledge that the principle claimant and the two adult children as women also have a nexus to membership in a particular social group as women in Iran and that the associate claimant could also be considered for membership in a particular social group as a family member of claimants facing persecution on a convention ground.

[18]     However, I have found the respective nexuses to religion and political opinion are sufficient for me to decide this claim for asylum, and therefore, I have analyzed the claims solely on these grounds.

Well-Founded Fear

[19]     In order to be considered a convention refugee, a claimant must describe that they have a well-founded fear of persecution which includes both a subjective and an objective basis.

[20]     Based on the claimant’s testimonies and supporting documents as well as the country condition documents, I find that all four claimants have a well-founded fear of persecution for the following reasons:

[21]     The principle claimant started attending church in Canada around [XXX] of 2018 with her Canadian relatives who were Christians, but she did not convert at the time.  She returned briefly to Iran in [XXX] of 2019 to have her visa extended and then came back to Canada to stay with her daughters. She became more involved with Christianity through her family members and by attending church and decided to convert. However, she feared telling her husband who was still in Iran, the associated claimant, over the phone as this was risky.

[22]     Her daughters, as well, became increasingly interested in Christianity after seeing the positive changes in their mother that her Christianity had brought to her. After the associate claimant came to Canada in [XXX] 2019 having been threatened, he was able to confirm his family’s conversion to Christianity, and all four of them claimed asylum while their visitors and student visas respectively were still valid. Their actions in addition to the amply country condition documents below have established their subjective fear of persecution in Iran.

[23]     The country documentation is consistent with the claimant’s testimonies and fearing persecution in Iran due to the conversion of three of the claimants to Christianity and due to the forth claimant’s opposition to this persecution and beliefs that religious freedom is important.

Religion

[24]     The law prohibits Muslim citizens from changing or renouncing their religious beliefs. Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy, and this is a crime punishable by death.

[25]     Amnesty International stated in June 2019, “Freedom of religion and belief continues to be systematically violated.  The authorities impose on people of all faith as well as atheists codes of conduct rooted in a strict interpretation of Shia Islam. The right to change or renounce religious beliefs continues to be violated with those converting from Islam being at risk of arbitrary detention, torture, and even the death penalty.”

[26]     The Australian Department of Foreign Affairs and Trade assesses that those accused of religiously based charges are also likely to face charges related to national security, and they are unlikely to have adequate legal defence and are likely to be convicted.

[27]     While Shia jurors generally hold only that male apostates are to be killed, females on the other hand may only be imprisoned. The US Department of State says that prison conditions were harsh and life-threatening due to food shortages, gross over-crowding, physical abuse, and inadequate sanitary conditions and medical care.

[28]     I am satisfied that regardless of whether a convert faces the death penalty or prison, the conditions and treatment are such that both amount to persecution. Based on all the evidence before me, I find the principle claimant and her two adult daughter claimants would face a serious possibility of persecution from the state due to the conversion from Islam to Christianity if they were to return to Iran.

Political Opinion

[29]     The associate claimant is in fact opposing the government’s religious requirements in his support for his family members who have converted to Christianity. He described being threatened and questioned about his family members’ religion in the months before he came to Canada. At that time, he was not even aware that they had converted as they had feared telling him over the phone that the authorities would discover this.

[30]     The associate claimant disagrees with the state position on religious freedom in Iran. He said that, “The Iranian regime needs to change based on the views in the constitution they” unlike himself, “do not accept any other religion or belief.” He said, “There needs to be an environment that allows people to choose their religion freely, to have their own beliefs, and be respected for it.”

[31]     The Islamic Republic of Iran is an authoritarian theocratic republic and imposes severe restrictions on many freedoms including religious freedom. The government’s human rights record remained extremely poor and worsened, and there were numerous reports of arbitrary killings and forced disappearances as well as torture by government agents, corruptions widespread at all levels of the government, and impunity is pervasive through all levels of government and security forces according to NDP 2.1 and 1.7.

[32]     I have noted that the associate claimant has expressed an opinion and is against the government of Iran by his support for religious freedom. Based on all the evidence before me, I find that he, too, would face a serious possibility of persecution based on this political opinion if he were to return to Iran.

[34]     I also note that he has vowed to stay with his family and were he to do so and they are still Christian converts, he would suffer persecution as well for that reason.

State Protection and Internal Flight Alternative

[35]     In this case, the agent of persecution is the state. The persecution the claimants would face if returned to Iran is at the hands of the authorities, and accordingly, I find there is no state protection available to the claimants, and the presumption of state protection is rebutted.

[36]     The state of Iran is in control of all of its territories, and therefore, again on the evidence before me, I find that there is a serious possibility of persecution throughout Iran. There is no viable internal flight alternative for these claimants in their particular circumstances.

Conclusion

[37]     Based on the totality of the evidence, I conclude that the claimants are convention refugees, and accordingly, I am accepting all of their claims.

[38]     Okay, so that is the end of my decision. Interpreter, if you would like to go ahead and give a summary. That would be very welcome.

[39]     INTERPRETER: Sure thing.

———————REASONS CONCLUDED———————

Categories
All Countries Cameroon

2020 RLLR 144

Citation: 2020 RLLR 144
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2020
Panel: Bonita Small
Counsel for the Claimant(s): Larry W. Smeets
Country: Cameroon
RPD Number: VB9-09903
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000174-000177

DECISION

[1]       MEMBER: So, these are the reasons for the decision in the claim of [XXX], a citizen of Cameroon who is claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The allegations are that the claimant fears persecution at the hands of the Cameroon State authorities on the basis of his political views and in particular, his affiliation with the Southern Cameroons National Council, also known as the SCNC.

[3]       My determination is that I find that the claimant is a Convention refugee.

[4]       In terms of identity, I note that the claimant did enter the country on a false identity, i.e. using a passport that is not in his name. He has explained to me, in my opinion, plausible reasons for doing that because he had a warrant outstanding for him in his country and that was his only way of leaving safely. Since that time, he has provided a copy of his passport and his birth certificate and I’m satisfied based on his testimony and the offering of these documents, that he is who he says he is.

[5]       So, I am not, I don’t have a problem with the issue of identity.

[6]       In terms of credibility, I do note that the Minister filed an initial intent to intervene in this matter on the basis of credibility. However, withdrew that intention to intervene late last week.

[7]       So, in terms of my assessment of credibility, when a claimant swears to tell the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. In assessing whether a claimant’s statements are believable, we consider whether the facts presented are detailed, plausible and consistent.

[8]       I find that these criteria are met in this case. I found the claimant convincingly relayed what had happened to him in his written evidence and in his oral testimony.

[9]       I found him to be a credible witness, as it pertains to the central allegations regarding his claim.

[10]     In essence, the claimant has provided evidence that due to his negative experience growing up, as an anglophone in a francophone environment, where he was taxed heavily in the business that he was in, he decided to try to fight l guess, in, for lack of a better word, against the power that the francophones were imbuing in the country. And he decided to join the SCNC, which is an organization known for trying to encourage the rights of anglophones and reduce marginalization of anglophones in his country. As part of his membership in this organization, he participated in the organization of protests and arranged for transportation of the members to and from marches. He was detained for the first time in 2011 for about seven days, after participating in a march to promote the vision of an independent anglophone Cameroon. He recalls being forced into a cell with about five hundred people, where there was no toilet and he was denied food and drink. In 2016, he was again detained but this time was released after about one day. The third and final march he participated in took place on [XXX] the [XXX], 2017. From that march, he was charged with a number of offences and imprisoned in Buea for approximately four months, from [XXX] 2017 until [XXX] 2018. Eventually, he was released on bail after getting help from his lawyer and his family. In [XXX] 2018, his drivers had been transporting food to a village called [XXX] (ph). They heard gunshots, parked the trucks and ran. The village ended up being burned by the State military. The claimant did not appear for the trial of, on the charges that he was charged with because he feared that he would not receive due process. He went into hiding for about a year and was informed by his lawyer that an arrest warrant had been issued for him in [XXX] 2018. Finally, he obtained a visitor for fear of being discovered in his country, he obtained a visitor to, visa to Canada under a false name and left Cameroon on [XXX] 2019. He has not seen his family since [XXX] 2018.

[11]     I find that the claimant has provided solid corroborative evidence that supports his allegations. For example, he has provided a copy of his membership card with the SNC-, SCNC, I’m noting that he’s contributed from the years 2013, 2019. I’ve also been provided with a copy of the warrant, which the claimant testified today was provided to him by his lawyer. I’ve also been provided with copies of the boarding pass that he used to get out of his country, which shows that it was in a different name than it-, the name given, which supports his subjective fear that he would have been arrested had he used his real name if he’d gone to the airport, or if he had gone through the airport on his own name. And I also have an affidavit from his lawyer, who supports his political beliefs and also the chronology of events, as it pertains to the arrest warrant and the jumping of bail.

[12]     So, based on these documents and based on the testimony and the narrative of the claimant, I find that there is sufficient evidence on the balance of probabilities, that supports the claimant’s credibility.

[13]     In terms of the Nexus, I find the Nexus here is a Convention ground of political opinion and I’ve also looked at the country documents and find that they do also support the claimant’s political beliefs. Cameroon, a bilingual and multicultural company-, country that was known for its stability and its strong alliances with France and the U.S., is apparently slipping into a protracted human rights crisis, in the largely anglophone northwest and southwest regions that border Nigeria. Since late 2016, anglophone activists who have long complained of the regions perceived marginalization by the francophone majority, have mobilized significant segments of the anglophone population to demand more political autonomy or succession and this is found in Exhibit 3, the National Documentation Package at Tab 2.7. In a recent Freedom House report of 2019, it’s noted that the conflict between security forces and separists-, separatists in the anglophone northwest and southwest regions has intensified, resulting in widespread civilian deaths and displacements and that’s found in Tab 2.3 of the National Documentation Package. Human Rights Watch reported that government forces killed civilians in a context of the ongoing anglophone crisis. And security forces have set houses on fire, burning to death at least four elderly women left behind by their relatives. They’ve committed extrajudicial executions, burned property, carried out arbitrary arrests and tortured detainees. A Human Rights Watch report documented a range of abuses by both sides in the anglophone regions, including arson attacks on homes and schools. According to the International Crisis Group, government forces and armed separatists killed over 420 civilians since the crisis has escalated in 2017 and that’s at NDP 2.5.

[14]     In my view, the country conditions demonstrate a serious problem between the government and the anglophone activists, of which the claimant is one. I considered his profile as a member of the SCNC and the fact that he has a warrant out for him right now, and the fact that he has testified that the police came to his house looking for him. He used a fake passport to get into this country but has since provided a copy of his real passport. But I understand that using the fake passport was part of his, supports his subjective fear. I’ve considered that he holds a political view that is critical of the government and I have considered the documents that show how the government treats individuals who they perceive to have an opinion that is opposite to them.

[15]     Based on this evidence, I find that the claimant has a well-founded fear of persecution and I find that he faces a serious possibility of persecution from the State, if he were to return to Cameroon, by reason of his political opinion, both real and imputed. In terms of state protection, given that the State is the agent of harm, I find there is no state protection available to the claimant and that it would be objectively unreasonable for him to have sought state protection.

[16]     I find that the presumption of state protection has been rebutted.

[17]     And in terms of an internal flight alternative, given the States’ capacity and pattern of treatment of the critics of the government, given that he has an outstanding warrant for his arrest, I find that he faces a serious possibility of persecution throughout Cameroon.

[18]     Accordingly, I find there is no alternative flight available to the claimant.

[19]     In conclusion, I find that the claimant is a Convention refugee and I accept his claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Venezuela

2020 RLLR 143

Citation: 2020 RLLR 143
Tribunal: Refugee Protection Division
Date of Decision: November 2, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): Leonardo Jose Di Leone Velasquez
Country: Venezuela
RPD Number: VB9-08424
Associated RPD Number(s): VB9-08444, VB9-08453, VB9-08454
ATIP Number: A-2021-01106
ATIP Pages: 000169-000173

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of the principal claimant, [XXX] and his spouse, [XXX] as citizens of Venezuela and their two minor children, [XXX] and [XXX] as citizens of the United States of America (U.S.) who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1] The claimants’ identities have been established on a balance of probabilities by copies of their passports.[2]

ALLEGATIONS

[2]       The claimants fear return to Venezuela because they fear persecution due to their political opinion, namely their opposition and political activities, including supporting the Action Democracy opposition party against the regime. The claimants provided further details in their Basis of Claim (BOC) forms.[3] The claimants provided corroborative documents including identity documents, membership in the Action Democracy political opposition party, letters of support and screenshots of social media posts against the current regime.[4] The panel has reviewed and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution.[5]

Determination

[3]       The panel finds that the principal claimant and the associate claimant, his spouse, have established that they are Convention refugees pursuant to section 96 of the Act for the reasons that follow.

[4]       The panel finds that the two minor associate claimants are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to subsection 97(1) of the Act for the reasons that follow.

Credibility and Well-Founded Fear of Persecution

[5]       The claimants testified in a straightforward and consistent manner, consistent with their BOC and supporting documents. The panel finds that the claimants are credible witnesses. The principal claimant and designated representative for his two minor children, the associate claimants, testified that they do not have any fears of return to the U.S. for their two American children. He confirmed that that they are citizens of the U.S. Accordingly, the panel finds that their claims fail under both section 96 and subsection 97(1) of the Act.

[6]       He testified that he fears that he will be imprisoned, beaten and killed because of his political opposition if he returns to Venezuela. The two adult claimants testified that they left Venezuela in 2004 due to the persecution and threats they suffered during the Chavez regime. They testified that they did not have citizenship, permanent residence and had never made an asylum claim in the U.S. The principal claimant testified that he was able to obtain renewable work permits during their time in the U.S. He testified that they never returned to Venezuela. The two adult claimants testified that they continue to be politically active through social media, helping with humanitarian aid for opposition in Venezuela and participating in protests against the Maduro regime in Miami where they were living. The female adult claimant testified that she also fears gender-based persecution including rape by security forces as she has seen media reports regarding female opposition members who have suffered this kind of persecution in Venezuela.

[7]       The objective evidence supports the claimants’ fear of return to Venezuela because of their political opposition to the current government. The objective evidence indicates that ‘”civilian authorities’ control over the security forces declined and was deeply politicized.”[6] There are no independent government institutions remaining today in Venezuela to act as a check on executive power and “a series of measures by the Maduro and Chávez governments stacked the courts with judges who make no pretense of independence. The government has been repressing dissent through often-violent crackdowns on street protests, jailing opponents, and prosecuting civilians in military courts. It has also stripped power from the opposition-led legislature.”[7]

[8]       Further, the objective evidence indicates that authorities persecuted political opposition in Venezuela:

The most significant human rights issues included extrajudicial killings by security forces, including government sponsored “colectivos”; torture by security forces; harsh and life-threatening prison conditions; widespread arbitrary detentions; and political prisoners. The government unlawfully interfered with privacy rights, used military courts to try civilians, and ignored judicial orders to release prisoners. The government routinely blocked signals, interfered with the operations, or shut down privately owned television, radio, and other media outlets. The law criminalized criticism of the government, and the government threatened violence and detained journalists critical of the government, used violence to repress peaceful demonstrations…[8]

[9]       Based on the totality of the evidence, the panel finds that the claimants have established a nexus to political opinion and that they would face a serious possibility of persecution because of their political opposition against the current regime.

State Protection and Internal Flight Alternative

[10]     Given that the state is the agent of harm, the panel finds that there is no state protection available to the claimants. Further, given the state’s capacity and ongoing interest in arbitrarily detaining and abusing citizens who oppose the government, the panel finds that the claimants would face a serious possibility of persecution throughout Venezuela and it is not objectively reasonable in all of the circumstances including their particular circumstances to relocate anywhere in Venezuela. Accordingly, the panel finds that there is no internal flight alternative available to the claimants.

CONCLUSION

[11]     For the forgoing reasons, the panel finds that the principal claimant and the associate claimant, his spouse, have established that they are Convention refugees pursuant to section 96 of the Act and the Immigration and Refugee Board of Canada therefore accepts their claims.

[12]     For the forgoing reasons, the panel finds that the two minor associate claimants are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to subsection 97(1) of the Act and the Immigration and Refugee Board of Canada therefore rejects their claims.


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

[2] Exhibit 1.

[3] Exhibit 2.

[4] Exhibit 4.

[5] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996.

[6]Exhibit 3, National Documentation Package (NDP), Venezuela, September 30, 2020, Item 2.1.

[7] Exhibit 3, NDP, Item 2.3.

[8] Exhibit 3, NDP, Item 2.1.

Categories
All Countries Zambia

2020 RLLR 142

Citation: 2020 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: November 13, 2020
Panel: A. Marcotte
Counsel for the Claimant(s): Odaro Omonuwa
Country: Zambia
RPD Number: VB9-06329
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000163-000168

REASONS FOR DECISION

INTRODUCTION

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

[2]       In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

[3]       In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[4]       You have outlined your reasons for seeking Canada’s protection in your Basis of Claim (BOC) form[1] as well as through your testimony. You allege that you cannot return safety to Zambia because you fear persecution by the state due to your sexual orientation as a lesbian.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your membership in a particular social group based on your sexual orientation for the following reasons.

ANALYSIS

Identity

[6]       I find that your identity as a national of Zambia is established by your testimony and the documents provided: National identity card.[2]

Nexus

[7]       You allege that you will be persecuted in Zambia due to your sexual identity as a lesbian. I find that there is a nexus between your allegation and the Convention ground of membership in a particular social group based on your sexual orientation. As such, I have considered their claims under both sections 96 and 97(1) of the Act.

Credibility

[8]       I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me which have not been satisfactorily explained.

[9]       You submitted corroborative documents regarding your sexual orientation through affidavits from acquaintances, family, your church and the [XXX][3]. The country condition evidence described below also supports your allegations in Zambia. Based on the presumption of truthfulness, your testimony, and the corroborative evidence, I find, on a balance of probabilities, that your allegations are credible.

Risk of harm

[10]     To establish your status as a Convention refugee or as a person in need of protection, you had to show that there was a serious possibility that you would be persecuted, or that you would be subjected on a balance of probabilities to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to Zambia.

[11]     You testified that you grew up in a very strict and religious household, and that you were taught that a women can only love a man. You spoke of how you witnessed your brother informing your parents that he was gay and the subsequent fall out he had with your parents who accused him of bringing shame and disgrace to the family. You testified that you have not heard from your brother since 2014 and that no one in your family knows where he is.

[12]     You spoke of your own questioning and doubts regarding your sexual identity growing up and how you started exploring your feelings in more depth when you arrived in Canada in 2015 to study. You testified that you no longer wanted to live a lie and be in denial of who you were and informed your two sisters who live in Canada, of your sexual orientation, even knowing it would be a difficult conversation.

[13]     According to the Zambia Penal Code Act, Section 158: Indecent practices between persons of the same sex of the Penal Code Act indicates:

[XXX] Any female who, whether in public or private, commits any act of gross indecency with a female […] person, or procures a female […] person to commit any act of gross indecency with her, or attempts to procure the commission of [XXX] any such act by any female person with himself or with another female […] person, whether in public or private, commits a felony and is liable, upon conviction, to imprisonment for a term of not less than seven years and not [XXX] exceeding fourteen years.[4]

[14]     A report by International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2015 the President Edgar Lungu declared: “We will not support homosexuality. I will not compromise human nature because of money. God made man and woman.”[5]

[15]     The objective evidence highlights the challenges in Zambia in terms of advancing and protecting the rights of the LGBTQ community and the various incidences of state-sponsored homophobia and transphobia which continues to plagues the legal and political atmosphere of Zambia.[6] Based your identification as a lesbian and the state’s laws and treatment of individuals who identity as lesbian, I find that there is a serious possibility of persecution if you return to Zambia. I find that you have a well-founded fear of persecution based on your membership in a particular group, based on your sexual orientation.

State protection

[16]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. Given the current legislation and that the government is an agent of persecution, it appears objectively unreasonable for you to seek the protection of the state. Consequently, the presumption of state protection has been rebutted.

Internal flight alternative

[17]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution or cruel and unusual treatment or punishment throughout Zambia, since the laws apply across the country and that you cannot be expected to hide from the state.

CONCLUSION

[18]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.


[1] Exhibit 2.

[2] Exhibit 1.

[3] Exhibit 4.

[4] Exhibit 3, National Documentation Package (NDP), Zambia, March 31, 2020, Item 6.1.

[5] Exhibit 3, NDP Item 6.1.

[6] Exhibit 3, NDP Item 6.2.

Categories
All Countries Colombia

2020 RLLR 141

Citation: 2020 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: February 3, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Simon Trela
Country: Colombia
RPD Number: VB9-03954
Associated RPD Number(s): VB9-03929, VB9-03968, VB9-04026, VB9-04033, VB9-04034
ATIP Number: A-2021-01106
ATIP Pages: 000158-000162

DECISION

[1]       MEMBER: [XXX] the principal claimant, [XXX] and [XXX] her adult sons, [XXX] her adult daughter and the mother of and designated representative for the minor claimants [XXX] and [XXX] seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintained the designation of [XXX] as the designated representative for the two minor claimants pursuant to subsection 167(2) of the Act and Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules.

[2]       The claimants allege that FARC will murder them if they’re returned to Colombia because they’ve refused to pay the FARC’s extortion demands. The FARC has murdered the principal claimant’s uncle on [XXX] the [XXX] 2018 after their first written demands for payment were not met. I find the claimants have established on a balance of probabilities that they would personally be subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment upon return to Colombia. My reasons follow, the claimants’ identities and citizenship as nationals of Colombia were established by their testimony and the supporting documentation filed, including certified true copies of their passports in Exhibit 1.

Credibility

[3]       When a claimant swears to the truthfulness of certain facts, there is a presumption that what they have said is true, unless there’s sufficient reason to doubt the truthfulness. The claimants testified in a straightforward manner with no inconsistencies in their testimonies or contradictions between their testimonies and other evidence before me. I found the adult claimants to be credible witnesses and therefore accepted as true the facts that they have alleged in support of their claim. The minor claimant’s-­, actually one did testify a little bit, the other one did not testify. The claimants provided the following relevant and prohibitive documents in their Exhibit 4. Their corporate documents showing the family owned the [XXX], a [XXX] corporation located in Bogota. Their two threatening letters referred to as pamphlets from the FARC dated [XXX] of 2018 and [XXX] of 2019. There are various reports of crime-, of the crime related to the FARC to the police, including the ones made after [XXX] 2018 and on [XXX] 2019. As well as the homicide investigation documents from the police with respect to the murder of the uncle and these include photos and a description of gun-, of his cause of death as a gunshot wound to his face. There’s a copy of the-, of an advice letter from the Minister of Defense from [XXX] of 2019, which is outlining to the claimants steps that they personally should take to try to be safe.

[4]       There’s a dep-, depositions from three former employees that state that they were aware that the FARC had been threatening their employers and the FARC also demanded extortion payments from the workers. I found these documents were relevant and served to corroborate the claimant’s allegations that the family owned a company that was being extorted by the FARC. That they refused to pay the demand and reported the crimes to the police and that their uncle had been murdered for failure to pay the FARC. Victims of crime corruption or vendettas  generally cannot establish a link between their fear of persecution and one of the Convention grounds. Although the claimants are clearly politically opposed to the FARC, they were not targeted by the FARC on the basis of their political opinion, but they were targeted for criminal extortion. So, there is no information before me indicating that FARC targeted the claimants by reasons of a Convention ground and accordingly I’ve assessed these claims under Section 97(1) of the Act.

[5]       In order to be considered a person in need of protection under Section 97(1), claimants must demonstrate on a balance of probabilities that they would be subjected personally to a risk to their life or a risk of cruel and unusual treatment or punishment if they’re returned to Co-, Columbia in this case. In addition, in accordance with 97(1)(b)(ii), the risk that the claimant faces must not be one that is faced generally by other individuals in or from Colombia. The claimants have established that they’ve personally been targeted by the FARC group, in fact, the first FARC threat in the form of a pamphlet specifically named the principal claimant, her adult sons, and daughters, and includes the children that is her grandchildren, the minor claimants, in that first pamphlet. The risk the claimants face, I find, is unique to them and it’s significantly greater than the risk faced by others generally within Colombia. On [XXX] of 2018, the first threatening extortion pamphlet from the FARC was delivered to the claimants while they were en route to their summer place about four hours from Bogota. Two men on motorcycles stopped them in their car about an hour away from this summer house to deliver the threat, on [XXX] they noticed motorcycles around their business in Bogota and they informed the police. They also informed police of the first threat, the claimants went to hide at their summer house on [XXX] around 7 o’clock that evening, armed men came to demand the extortion payment and their uncle refused and they murdered him and threatened the entire family, if the payments weren’t made. The claimants reported this to the police and a homicide investigation was opened, the claimants received a number of threatening phone calls over time, where people identifying themselves as being from the FARC, said the claimants should pay or be killed like the uncle and there was nowhere they could hide. And the FARC gave specific details about the family that made the family believe that the FARC was monitoring them.

[6]       The claimants attempted to hide in [XXX] from [XXX] to [XXX] of 2019, this is the same province as the city of [XXX]. They continued to receive threats and warnings to pay, they then returned for a short time to Bogota, never staying long in one place, as there were legal documents with respect to the business that had to be signed. On [XXX] 2019 they received a second pamphlet from the FARC which named them as military objectives and warned their employees and they-, sorry they warned their employees, closed the business, and went to the police that same day to report this new threat. The police warned them that as the threats specified they were now considered FARC military objectives, there is nowhere safe in Colombia and they should leave the country. The police did provide them advice on how to be safe but essentially, it’s a self-protection type of advice that was provided, such as avoiding travel routines, routes used for transportation, et cetera, carry with you an effective device of communication, if you’re at a traffic  light, when you’ve had to stop or stop signs et cetera, look around to see if there’s anything suspicious and be ready to keep driving, and share these safety measures that you adopt yourself with your-, your family.

[7]       So clearly, the police themselves were not willing or able to more than to just give advice on what the claimants themselves could do to try to stay safe. The claimants fled to hide with a friend in Cartagena, the designated rep for the two minor claimants, their mother, was separated from her former husband and it took some time for her to locate him and get his permission to take the minor claimants out of the country. This delayed the family’s departure, they received the authorization from the ex-husband on [XXX] the [XXX] of 2019 and left for Canada on [XXX] of 2019. The minor claimant’s mother said that she had notarized documents giving her ex-husband’s permission to remove the children from the country and that it’d been necessary for her to show these documents while exiting Colombia and entering Canada. She did not have these notarized documents with her at the hearing but offered to provide them as she had them at home in Canada. On a balance of probabilities, I am satisfied that she did have authorization from the minor claimant’s father to take the two minor claimants out of Colombia.

[8]       The NDP 7.2 talks about the criminal groups and says that they pursue function of ter-, functions of territorial, social and economic control exerted by violent means. Their activities include murders, smuggling, drug trafficking, kidnapping, human trafficking and so on. They’re known to establish illegal checkpoint, enter private homes, and monitor private communications. NDP 7.18 states that initially the November 2016 peace process with the FARC brought over 11,000 members back to civilian life. At that time there were around 1,000 FARC dissidents who refused to cooperate and were acting in fact as de facto rulers in their desperate territories. Despite their origins, many of these dissident groups were even more abusive than the predecessors as they compete among themselves, sometimes brutalizing local communities to maintain their control. After the peace accord, the situation has worsened and there are more FARC members leaving the peace process, in spite of a concerted effort by the Colombian government with over 10 billion in U.S. assistance over the past 15 years. The rebel FARC group still operated in a large proportion of Colombia’s 32 departments and currently was estimated to have about 8,000 gorillas in its ranks, and this is more, this is a post peace accord document NDP 4.5. I note also maps showing dissident elements of FARC scattered throughout the country and NDP 1.2 stated that following the demobilization of the FARC in 2017 dissidents formed groups throughout Colombia. So, there’s plenty of evidence that indeed these FARC dissident groups are operational widely in Colombia.

[9]       NDP 7.21 states that the FARC is known to issue threats declaring people military objectives. When a person is declared a military objective, it means that they’ve been issued a threat to be killed. When a person is a military objective their life, physical integrity, and freedom are endangered and this threat also extends to their family. These declarations can come in many forms, including the pamphlets or-, or essentially, they appear to be letters from the FARC, that the claimants received. Based on the claimants’ testimony and supporting documents and the country conditions documents, I’m satisfied on a balance of probabilities the claimants would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the dissident FARC if they return to Colombia.

[10]     Now except in situations where state is in complete breakdown, states are presumed capable to protect their citizens. To rebut this presumption the onus is on the claimant to establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. So, we look at country documentation, it states that a citizen, not in a position of power or in the judiciary, might not receive protection from the police or other forces, this is NDP 7.21. The a-,which is a response to information request from the IRB, one of the people the IRB spoke to was an assistant professor who said relocation within Colombia is not an option for those who’ve been declared a military objective because paramilitary and guerilla structures have extended vertical organizations and large networks. As previously discussed, the FARC has wide reach in the country despite the State’s efforts, after they received the first FARC pamphlet and reported it to the police, the claimant’s uncle was murdered and the murder has not been solved. The FARC was able to locate the claimants in a number of places previously, the claimants describe how they were advised by police to leave the country after they were declared military objectives in the second pamphlet from the FARC. And this is in line with the country documentation that states that there is nowhere internally they can relocate and this would be despite the fact that there is a functioning state with some degree of state protection. The claimants also provided an Exhibit for that copy that I’ve referred to previously on the standardized advice police give to people at risk such as the claimants and it’s basically just self-care. The claimants had already been taking similar measures before they received the second pamphlet from the FARC, while stopped at an intersection in Bogota.

[11]     Satisfied on a balance of probabilities that the State of Colombia is unable to provide adequate protection to these claimants, if they return to Colombia and accordingly, I find that there is no adequate state protection for these claimants. Now, an internal flight alternative arises if a claimant who otherwise meets all the elements of a definition of someone who needs protection in their home area of a country, nevertheless, couldn’t-, could live safely elsewhere in that country and therefore would not be in need protection. There is a legal test which has two prongs, on the first prong I’d have to be satisfied that there would be a place in the country where the claimants could safely relocate. As well, conditions in that part of the country would have to be such that they weren’t unreasonable, in all circumstances, including those particular to the claimants for them to go there and seek refuge there. Well, the FARC has shown persistence in tracking these claimants over a period of time, twice finding them while traveling on the roads, and the FARC have indicated that they have details about the family members. Furthermore, they did not hesitate to kill the uncle when he refused their extortion demands, I’m satisfied that FARC has both motivation and means to harm the claimants. Furthermore, the country documents as previously discussed, shows that FARC is widely active in Colombia in spite of the 2016 peace accord. As well, the country documents previously discussed showed that for those declared military objectives, as these claimants have been, there is no viable IFA. They are not safe anywhere in Colombia.

[12]     Therefore, I find on a balance of probabilities, the claimants would be subjected personally to a risk of life or a risk of cruel and unusual treatment or punishment, if returned to Colombia. And accordingly, I’ve accepted their claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Venezuela

2020 RLLR 140

Citation: 2020 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2020
Panel: Kari Schroeder
Counsel for the Claimant(s): Leonardo Jose Di Leone Velasquez
Country: Venezuela
RPD Number: VB9-03821,
Associated RPD Number(s): VB9-03830, VB9-03834
ATIP Number: A-2021-01106
ATIP Pages: 000154-000157

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claims [XXX] as the principal claimant, [XXX] as the associate claimant, and [XXX] as the minor claimant, as citizens of Venezuela who are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

Allegations

[2]       The following is a brief synopsis of the allegations put forward by the claimants. The principal claimant worked for the [XXX] for 13 years. He is opposed to President Maduro’s government and fears persecution because of his political views. The claimant does not support any particular political party but has attended several street rallies and protests. While employed with the [XXX] the claimant heard about minor incidents of corruption and reported them to his superior. However, in his last year of working with the company, the claimant noticed some incidents of corruption that involved millions of dollars. He and two other [XXX] worked to expose this corruption in [XXX] of 2018 after the claimant no longer worked there. While the claimant was in the United States, he learned that the [XXX] were arrested, the claimant inquired with a lawyer and after confirming there were no charges against him, returned to Venezuela in [XXX] of 2018.

[3]       The claimant became politically active again upon his return, he began receiving threatening phone calls in [XXX] of 2019, in [XXX] his son was threatened and fled the country. The claimant continued to receive calls in which he was accused of consp-, conspiring against the state and hindering business deals with the [XXX]. The claimants left Venezuela on [XXX] of 2019, they did not claim protection in the United States. They learned that a group of soldiers had visited their home on [XXX], 2019 and confiscated the claimants’ computers.  The claimants fear that if they return to Venezuela, they will experience detention, further intimidation, or be killed.

Determination

[4]       I find that the claimants are Convention refugees pursuant to Section 97 of the Act for the reasons that follow.

ANALYSIS

[5]       The claimants’ identities have been established today through certified copies of their passports on file and I am satisfied that they are both and as well as the minor claimant, nationals of Venezuela. In terms of credibility, there is a presumption of truth applied to all claimants, unless there is a reason to doubt their allegations. Today, both claimants testified and they were credible and straightforward witnesses, they offered canor-, candid and spontaneous testimony and did not embellish, even when given the opportunity to do so. There were no material contradictions between your testimony and the Basis of Claim forms that would cause me to doubt their allegations.

[6]       The principal claimant testified that he noticed, starting in 2014, that some purchases for the contract of services with [XXX] were taking place in a very irregular manner, outside of Venezuela laws. The claimant testified that this generated some very intense discussions with his boss, who did not respond positively. The claimant refused to approve these processes and so his boss delegated that responsibility to someone else. As the claimant rose in the company, he had access to more and more information. He testified that starting in 2017, he was involved in some very large purchases and noticed that the company was purchasing extremely expensive equipment from out of the country, which in the claimant’s view was unnecessary. He filed a complaint, along with two other employees, [XXX] named [XXX] and [XXX], to the Prevention and Control of Losses in mid-2017. He hoped that this would prompt an investigation and an audit, he met directly with that manager and was hoping that some action would be taken, however, nothing was done. The claimant decided to leave the [XXX] in [XXX] of 2017 because of political pressure and because he had angered some higher up people. He clarified that at that time he had become more politically active, participating in more demonstrations as well as volunteering and coordinating logistics, to ensure people’s presence at demonstrations. He also distributed water and food and would assist people who were injured, the claimant believes that this made him more visible. The claimant testified that he supported all opposition parties, although he did some volunteer work for the Democratic Action Party. After the claimant left the company at the beginning of [XXX] of 2018, the claimant met with the two other [XXX] and gave them some of the additional information he had, to add to their complaint, he then left for the United States to visit his brother. That was when he learned about the detention of [XXX] and that [XXX] had fled the country to avoid detention. The claimant spoke to a lawyer and returned in [XXX] 2018 once he felt it was safe. In [XXX] 2019, the claimant testified that he began to receive threatening phones from the Colectivos.

[7]       The claimant believes that when the armed soldiers visited his home in 2019 that they were searching for some sort of further information about the complaints they had made. When I asked the claimant, what had prompted him to ramp up his political activity in 2017, he testified that through his position with [XXX] he was watching money being given freely to other countries. While people in his country were starving and being denied access to basic services, such as water and healthcare. The claimant spoke of his country as being in the clutches of a dictatorship and a criminal organization, he described Juan Guaidó as the only constitutionally legitimate president.

[8]       I also questioned the associate claimant today and she testified that she would accompany her husband in all demonstrations that was also not affiliated with any particular party. The claimant testified that she has never been directly threatened herself but that her children were. She described how at the end of [XXX] of 2019 when the Colectivo-, Colectivos called they threatened their son directly. They knew information about their son, including his routine and his place of study, they then threatened to kill him and he had to leave the country. The associate claimant testified that she participated in approximately 50 to 60 protests, beginning around 2014, she continued her participation, even when her husband was in the United States for several months. And so, I accept that her political opinions exist separate and apart from the principal claimant. She described the regime as malignant, the claimant also believes that their lives would be in danger if they were to return. Finally, the principal claimant testified that his former colleague [XXX] is still in detention to this day.

[9]       I have documentary evidence to corroborate the claim, including an activism certificate from the Democratic Action Party. As well as of-, as a copy of the complaint that the principal claimant made to the prevention and control of lasses. I have several letters corroborating events which took place in Venezuela before the claimants left. Based on the totality of the evidence, I accept that both claimants are opposed to the regime and have expressed anti-government political opinions, both through street protest and in the case of the principal claimant through anti-corruption complaints. Given that the claimants’ house was raided, I also find that the minor claimant has established a subjective fear of returning despite her young age. I find there is a Nexus between the claimants’ allegations on the Convention ground of political opinion. The duty of this Panel is, therefore, to determine whether the claimants’ fears are well-founded, having accepted the claimants’ allegations, I turn to the evidence on the treatment of political opponents in Venezuela.

[10]     The objective evidence before me corroborates the claim, on [XXX] of last year, the government organized snap Presidential elections that were neither free nor fair. Nicolás Maduro was re-elected through this deeply flawed political process, which much of the opposition boycotted and the international community condemned, and this can be found at Document 2.1 of the National Documentation Package. The evidence also confirms that several thousand people have been detained in connection with anti­government demonstrations in Venezuela. The government routinely detains political opponents, including lesser-known activists or people whom the government believes have links to the political opposition. The government has issued an indefinite ban on all protests.

[11]     According to a report by Freedom House, also in the NDP, Venezuela is one of two countries in the Western hemisphere along with Cuba to be rated as not free by Freedom House. Political prisoners are subject to torture and other human rights abuses. There is pervasive corruption and impunity among all security forces and in government offices. Several hundred people have been killed or harmed in protests. Non­-governmental organizations also publish reports that authorities generally mistreat, abuse, and threaten to kill detainees. Civilian political prisoners were routinely held in military prisons, those found guilty of insulting the President are subject to lengthy prison terms in abhorred conditions. Opponents of the government are frequently harassed and intimidated by the National Guard, the Savane, and members of the Colectivos, family members of political opponents are also targeted.

[12]     Therefore, based on the totality of the evidence before me, I find that the claimants have established through sufficient reliable evidence that they face a serious possibility of persecution if they return to Venezuela because of their opposition to the current government and the evidence establishing that political opponents are persecuted. Further, given that the State is the agent of harm in this case, l find that there is no operationally effective state protection available to the claimants. I also find that there are no internal flight alternatives available to the claimants in their particular circumstances because opponents of the government face a risk of persecution throughout the country. I, therefore, find that the claimants face a serious possibility of persecution in Venezuela, no matter where they live.

CONCLUSION

[13]     I find that the claimants are Convention refugees pursuant to the Act and the Board, therefore, accepts their claims, today.

———- REASONS CONCLUDED ———-

Categories
All Countries Venezuela

2020 RLLR 139

Citation: 2020 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: February 28, 2020
Panel: Persia Sayyari
Counsel for the Claimant(s): Molly Joeck
Country: Venezuela
RPD Number: VB9-01283
Associated RPD Number(s): VB9-01290, VB9-01293, VB9-01294, VB9-01295
ATIP Number: A-2021-01106
ATIP Pages: 000141-000153

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claims of Rayner Enrique [XXX] (the principal claimant); his spouse, [XXX] (the associate claimant), and their minor children, [XXX] and [XXX] (the minor claimants).

[2]       I have appointed [XXX] as the designated representative for his minor children, [XXX]and[XXX].

[3]       The principal claimant claims to be a citizen of Venezuela.

[4]       The associate claimant and the minor children all claim to be dual nationals of Venezuela and Colombia.

[5]       All of the claimants are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

DETERMINATION

[6]       I find that [XXX] is a Convention refugee pursuant to section 96 of IRPA as he has established a serious possibility of persecution in Venezuela due to his political opinion.

[7]       I find that [XXX] and [XXX] are not Convention refugees under section 96 nor persons in need of protection under section 97(1) of IRPA because although they have established a serious possibility of persecution in Venezuela due to their political opinion, they have not established a claim against Colombia, where they hold nationality.

ALLEGATIONS

[8]       The claimants’ allegations were set out in their Basis of Claim forms[2] and oral testimony. To summarize, the claimants fear persecution from Venezuelan authorities due to their political opinion.

[9]       All of the claimants were born in Venezuela and are citizens of Venezuela. The associate claimant and the minor claimants also obtained Colombian citizenship through the Colombian consulate while living in Venezuela. They held a right to Colombian citizenship because the associate claimant’s parents were dual nationals of Venezuela and Colombia.

[10]     In 2005, the associate claimant founded a [XXX] and became its president. From 2007 onwards, the principal claimant also worked there as the company’s [XXX] and [XXX]. The company distributed [XXX] for the [XXX] Venezuelan companies [XXX] and [XXX].

[11]     Since 2012, the adult claimants have been active members and supporters of Primero Justicia, an opposition political party in Venezuela. In [XXX] 2017, the adult claimants attended a large protest against the decision of the Supreme Tribunal of Justice to dissolve the opposition­ led National Assembly. The next day, a plain-clothes police officer named [XXX] overhead the principal claimant discussing the protest with a customer in his store. He subsequently returned with 12 officers, arrested the principal claimant, and seized the store’s merchandise.

[12]     Police interrogated the principal claimant about his participation in the protest. They released him after he agreed to pay a bribe of $[XXX] worth of [XXX]. In [XXX] and [XXX] 2017, COBIS twice returned to the claimants’ store demanding bribes. The second time, the principal claimant refused and filed a complaint about COBIS with the Attorney General’s Office.

[13]     The claimants started having technical problems with an [XXX] which they used to do business with [XXX] The principal claimant made inquiries and the president of [XXX] told him their access was intentionally suspended because the principal claimant had been identified by COBIS as a government opponent.

[14]     In [XXX] 2018, COBIS and four other men stopped all of the claimants in a parking lot when they were leaving a restaurant. COBIS told the principal claimant he was an “enemy of the homeland” who needed to be careful. The principal claimant filed another complaint about COBIS with the Attorney General’s Office.

[15]     On [XXX] 2018, the Bolivarian National Intelligence Service (SEBIN) summoned the principal claimant to an interview, claiming they wanted to gather more information about his two complaints against COBIS. A SEBIN officer asked the principal claimant about his travel history and business activities and accused him of being an American spy. He gave the principal claimant a summons for a second interview about “crimes against public order and against the nation’s independence and security.”[3] The claimants fled Venezuela on [XXX] 2018.

Identity

[16]     The claimants’ identities have been established on a balance of probabilities by copies of their Venezuelan passports.[4]

Credibility

[17]     I find the claimants to be credible. They provided straightforward and spontaneous testimony. There were no relevant inconsistencies within their testimony or between their testimony and the documentary evidence before me. The claimants also provided a number of documents to support their claim, including:

  • The two complaints made by the principal claimant to the Attorney General’s Office in [XXX] 2017 and [XXX] 2018;
  • Invoices related to the claimants’ business activities with [XXX];
  • The two summons from SEBIN issued to the principal claimant;
  • The adult claimants’ Primero Justicia membership cards.

[18]     These documents were consistent with the claimants’ allegations and I have no reason to doubt their authenticity. I thus accept the claimants’ evidence as credible and I believe their allegations.

Countries of Reference: Principal Claimant

[19]     I find on a balance of probabilities that the principal claimant is a national of only Venezuela and that he does not have a right to citizenship in Colombia.

[20]     The principal applicant is married to a Colombian citizen and is the father of three children with Colombian citizenship. He does not currently hold any type of visa or residency permit in Colombia. He testified that when he inquired with officials at the Colombian consulate in Venezuela about how he could obtain residency or citizenship through his family relationships, he was told the process was discretionary and his chances would be “better as an investor.”

[21]     The principal claimant’s testimony accords with country condition evidence indicating that the process for him to obtain citizenship in Colombia is discretionary. The National Documentation Package (NDP) for Colombia outlines the steps for him to obtain Colombian citizenship. First, he must apply for a temporary three-year visa. The authorities who process applications for those visas retain discretion to require an interview and additional documentation before granting applications. Second, if he is successful in obtaining a temporary three-year visa, he would become permitted to apply for a five-year resident visa. Third, if he was successful in obtaining the five-year resident visa, he would become permitted to apply for Colombian citizenship.[5]

[22]     Given this evidence, I find on a balance of probabilities that the principal applicant does not have a right to citizenship in Columbia because the right is not automatic under the law.

Countries of Reference: Associate Claimants

[23]     According to sections 96 and 97 of IRPA, a claimant must establish his or her claim against each country of nationality. The claimants indicated on their Basis of Claim forms and narratives that all of the associate claimants are dual nationals of Colombia and Venezuela. They confirmed this in their oral testimony. I find on a balance of probabilities that the associate claimants are dual nationals of Colombia and Venezuela and must therefore establish their claims against both countries.

The Claim Against Venezuela

Well-Founded Fear Of Persecution

[24]     The claimants have established a well-founded fear of persecution in Venezuela.

[25]     The adult claimants are members of Primerico Justicia, an opposition party, and have demonstrated their opposition to the Venezuelan government by attending public protests. They are known to be politically opposed to the Venezuelan government by members of the police force, by the president of a [XXX] company, and by the SEBIN. Immediately before the claimants fled Venezuela, the SEBIN demonstrated an intention to investigate the principal claimant for “crimes against public order and against the nation’s independence and security.”[6] SEBIN chose to investigate the principal claimant after he complained about extortion against the [XXX] of which the associate claimant is the president. The adult claimants testified that this investigation shows that Venezuelan authorities have singled them out for political persecution and that their entire family is now at risk.

[26]     Country condition evidence corroborates the claimants’ testimony. According to a report by Human Rights Watch, massive demonstrations against President Nicolas Maduro took place in 2017, fueled by discontent with his authoritarian practices and frustration over Venezuela’s humanitarian crisis.[7] The government responded with “widespread and systematic use of excessive force and arbitrary detentions against demonstrators,” as well as “patterns of other human rights violations, including violent house raids, torture and ill-treatment of those detained in connection with the protests.”[8]

[27]     The crackdown subsequently extended beyond the protests. The Office of the High Commissioner for Human Rights (OHCHR) has reported “since the end of July 2017, security forces, notably the intelligence services, have continued to use arbitrary and unlawful detentions as one of the main tools to intimidate and repress the political opposition or any person perceived as a threat to the [g]overnment for expressing dissent or discontent.”[9] Security forces including the SEBIN “have subjected detainees to ill-treatment and torture such as electric shocks, severe beatings, rape, suffocation with plastic bags and chemicals, mock executions and water deprivation.”[10] According to a research report prepared by the Immigration and Refugee Board of Canada, sources report that “supporters of the government see Justice First as a “right-wing group” or “coup-mongers” and an “enemy of the government.”[11]

[28]     I note that the OHCHR has documented cases of cruel, inhuman or degrading treatment of detainees’ families and the detention of children.[12] This corroborates the adult claimants’ testimony that their entire family could face persecution if returned to Venezuela.

[29]     I find the evidence before me is adequate to establish that the principal claimant became a target for investigation by SEBIN due to his political opposition to the Venezuelan government and that all of the claimants now have a well-founded fear of politically-motivated persecution from Venezuelan authorities due to their political opinion.

State Protection

[30]     I find that state protection would not be reasonably forthcoming to the claimants in this case.

[31]     A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. The jurisprudence indicates that the test for a finding of state protection is whether the protection is adequate. It is not enough for there to be existing relevant legislative or procedural framework for protection if the police or other authorities are not able or willing to effectively implement those protective provisions.

[32]     In this case, when the principal claimant attempted to approach the Attorney General’s office for protection from a police officer who was extorting him, it resulted in SEBIN opening an investigation against the principal claimant for crimes against the state. He received no meaningful protection from the Attorney General’s office.

[33]     Country condition evidence indicates that although arbitrary detention and mistreatment of political dissidents is not legal in Venezuela, this behaviour has been condoned by the state and the state has blocked efforts to hold perpetrators accountable for it. According to the

OHCHR, efforts made by the Attorney General’s Office to identify state agents who had perpetuated human rights abuses were blocked by Venezuelan security forces – “particularly the Bolivarian National Guard.”[13] The OHCHR identified instances where evidence about abuses disappeared from case files and cases where security forces allegedly responsible for killing demonstrators were released despite judicial detention orders. The “OHCHR received information on only one case where investigations had led to the opening of the trial of the alleged perpetrators.”[14]

[34]     Given that the state is the agent of harm in this case and the country condition evidence indicates that state authorities are unwilling to protect the claimants, I find that state protection would not be reasonably forthcoming for them.

Internal Flight Alternative

[35]     I find there is no viable internal flight alternative for the claimants. Venezuelan authorities including the police and the SEBIN are the agents of harm. Venezuela has effective control over the entirety of its own state and there is no evidence before me to suggest that their desire or ability to persecute the claimants would vary from region to region. As such, I find the claimants face a serious possibility of persecution throughout Venezuela.

The Claim Against Colombia

Risk of Harm

[36]     I do not find that the associate claimant or the minor claimants face a well-founded fear of persecution or a risk to their lives, a risk of cruel and unusual punishment, or a risk of torture in Colombia.

[37]     At the hearing, the associate claimant testified she did not wish to return to Colombia because she does not know anybody there and would have difficulty financially supporting herself and her children. She also testified that Venezuelans living in Colombia face discrimination in housing and employment, and she would be readily identifiable as Venezuelan by her accent.

[38]     News articles submitted by the claimants indicate that thousands of Venezuelans have fled their country for Colombia in recent months, with approximately 800,000 Venezuelan migrants (both documented and irregular) currently living there.[15] Some Colombians have expressed xenophobia towards Venezuelans that includes verbal and physical violence, the refusal to rent Venezuelans property, and the refusal to employ Venezuelans.[16] Colombian officials, including the president of Colombia, have denounced xenophobia against Venezuelans and called for tolerance,[17] and the United Nations High Commissioner for Refugees has launched a campaign in Colombia to generate empathy towards Venezuelan migrants.[18]

[39]     Counsel submitted there is a serious possibility that xenophobic discrimination would interfere with the associate claimant’s right to obtain housing and employment in Colombia. Counsel pointed out that these rights are listed in the Universal Declaration of Human Rights and that board members should consider such international instruments when assessing persecution.

[40]     To be considered persecution, mistreatment must be sufficiently serious. To determine whether mistreatment qualifies as “serious”, I must examine: 1) what interest of the claimant might be harmed; and b) to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. While the experiences of persons with similar profiles must be considered in determining whether ill-treatment is systemic, each case must be determined on its own facts.

[41]     I agree with counsel that the right to work and the right to housing are important interests and that in certain cases, inference with those rights can constitute persecution. However, I do not find the evidence adequate to establish that the associate claimants or the minor claimants would face a serious possibility of persecution in Colombia for the following reasons.

[42]     In the present case, neither the principal claimant nor the associate claimant indicated that they feared persecution in Colombia while preparing their Basis of Claim forms. To the contrary, they explicitly said in their narrative that they decided not to move to Colombia because they feared the principal claimant might be deported from there to Venezuela. According to their narrative,

While we were considering ways to leave Venezuela, we considered whether Colombia might be an option. […] We didn’t want to take the chance of applying for a residency permit [for the principal claimant] and waiting for months only to find out it had been refused. […] In the meantime, our lives would be in danger in Venezuela. We needed to go somewhere where we knew we would be safe, and protected against removal to Venezuela. It was clear that that [sic] this would not be the case for [the principal claimant] in Colombia, and [our] family was not willing to be separated.[19]

[43]     I sympathise with the claimants’ reluctance to go to Colombia when it was uncertain whether the principal claimant would be able to obtain legal residency there. Given that they have a well-founded fear of persecution in Venezuela, it is reasonable that they would choose not to live in Colombia to avoid the possibility of the principal claimant being deported back to Venezuela. However, there is nothing in the claimants’ narrative to indicate that they ever feared persecution within Colombia.

[44]     I have also considered the associate claimant’s personal circumstances. The associate claimant holds a [XXX] in [XXX] and successfully established a [XXX] business in Venezuela. According to the claimants’ Basis of Claim narrative, this business “thrived” until the [XXX] field became subject to a state monopoly in Venezuela.[20] Although the associate claimant and her children could be identified as Venezuelans by their accents, they also hold the benefit of Colombian citizenship. If returned to Colombia, they would not be crossing the Venezuelan land border with many irregular migrants seeking amnesty, shelter and employment while lacking citizenship status in Colombia. Although they may face xenophobic discrimination, I do not find that their ability to find housing or work would be compromised to a level that rises to persecution.

[45]     For these reasons, I find the evidence insufficient to demonstrate that the associate claimant or the minor claimants would face a serious possibility of persecution in Colombia.

CONCLUSION

[46]     I find that [XXX] is a Convention refugee and I accept his claim.

[47]     I find that [XXX] and [XXX] are not Convention refugees nor persons in need of protection and I reject their claims.


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

[2] Exhibits 2.1, 2.2, 2.3, 2.4, and 2.5.

[3] Exhibit 4, page 88.

[4] Exhibit 1.

[5] Exhibit 5, National Documentation Package, Colombia, 31 May 2019, tab 3. 7: Requirements and procedures for a person born in another country to Colombian parents to acquire citizenship; requirements and procedures for the spouse and child of a citizen to obtain permanent residency; rights and social benefits available … Immigration and Refugee Board of Canada. 9 July 2014. COL104916.E.

[6] Exhibit 4, page 88.

[7] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.10: Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela. Human Rights Watch; Foro Penal. 29 November 2017.

[8] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.10: Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela. Human Rights Watch; Foro Penal. 29 November 2017.

[9] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[10] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[11] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 4.4: Information on the political party Justice First (Primero Justicia), including membership procedures, structure and leadership at the national level and in Maracaibo (2014-May 2016). Immigration and Refugee Board of Canada. 11 May 2016. VEN105518.E.

[12] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[13] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[14] Exhibit 3, National Documentation Package, Venezuela, 30 August 2019, tab 2.9: Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Office of the United Nations High Commissioner for Human Rights. June 2018.

[15] Exhibit 4, page 147.

[16] Exhibit 4, page 149.

[17] Exhibit 4, page 150.

[18] Exhibit 4, page 144.

[19] Exhibit 2.1.

[20] Exhibit 2.1.