Categories
All Countries South Africa

2021 RLLR 3

Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068

REASONS FOR DECISION

INTRODUCTION

[1]       The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The principal claimant acted as the designated representative for the two minor claimants.

[3]       Throughout the proceeding and in the decision-making process, the Panel applied the

Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.

DETERMINATION

[4]       The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.

[5]       The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.

ALLEGATIONS

[6]       The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.

[7]       In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.

[8]       The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.

[9]       The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.

[l 0]  The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.

[11]     The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.

[12]     The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.

ANALYSIS

Identity

[13]     The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3

Nexus

[14]     The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.

Credibility

[15]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4

[16]     The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5

[17]     The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.

[18]     The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.

[19]     According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.

[20]     Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7

[21]     Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.

State Protection and Internal Flight Alternative

[22]     The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:

“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8

[23]     Tab 5.7 of the NDP further reports that police do not take GBV seriously:

“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9

[24]     The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:

“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10

[25]     Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.

[26]     Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.

CONCLUSION

[27]     Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.

DECISION

[28]     The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.

            Nalong Manivong      

            18 January 2021         

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).

2 Document 2.1 – Basis of Claim Form.

3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;

4 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.).

5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.

6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.

9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

Categories
All Countries Mexico

2019 RLLR 152

Citation: 2019 RLLR 152
Tribunal: Refugee Protection Division
Date of Decision: November 5, 2019
Panel: Bonita Small
Counsel for the Claimant(s): Michael Murray Aytenfisu
Country: Mexico
RPD Number: VB9-04275
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000169-000177

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claim of XXXX XXXX (AKA XXXX) XXXX XXXX XXXX, a citizen of Mexico.

[2]       The claimant, who is a minor, claims refugee protection under s. 96 and 97(1)(a) and 97(1)b) Immigration and Refugee Protection Act (IRPA).1

[3]       The panel has appointed XXXX XXXX XXXX as designated representative of the claimant. In rendering its reasons, the panel has considered and applied the Chairperson’s Guideline 3 on Child Refugee Claimants: Procedural and Evidentiary Issues and the Chairperson’ Guideline 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression

DETERMINATION

[4]       I find that the claimant is a Convention Refugee pursuant to section 96 of the IRPA.

ALLEGATIONS

[5]       The claimant is a XXXX XXXXyear-old transsexual male from a suburb of Mexico City in Mexico. His biological father is still in Mexico. His mother is now deceased, after being killed by the claimant’s mother’s partner at the time. The claimant now lives in Canada under the auspices of a guardian.

[6]       The claimant calls himself a transsexual male. When asked why, the claimant explained that his goal is to transition into a male. However, since he hasn’t had any surgeries yet to start that process, he calls himself transsexual as opposed to transgender. He does identify as a male and in that regard, now calls himself XXXX, as opposed to his birthname, XXXX. He stated for the most part, his friends in school refer to him as XXXX, as does his guardian, XXXX and his sister, with whom he lives.

[7]       The claimant testified that he started noticing that he didn’t want to be a woman when he was XXXX years old; he felt like “he was living his life inside a body where he didn’t belong.” He was confused because to be a female in Mexico was to act like a “princess” and to be “delicate like a woman”. However, he recalls that since he was four that he liked to play rough with everyone and that he didn’t like dressing the “way they wanted him to.”

[8]       These thoughts started becoming more important to him and at age XXXX XXXX he started asking people at school to call him by a different name. Several of his friend’s mothers thought he was weird and complained to his mother. The claimant remembers his mother crying and asking him why he was causing her so many problems. The claimant also remembers being told not to come to school because of who he was.

[9]       When asked about where he is in the process of transition, the claimant explained that he wears a “binder” to flatten his breasts, that his hair is cut short in the style of a man and that he wears male clothing. He wanted to start testosterone treatment and have breast surgery but the doctor he spoke about this told him he was too young.

[10]     When asked about what he fears if he goes back to Mexico, the claimant stated that he would have many problems. He would have to use the name he was given at birth, XXXX XXXX and the people in Mexico “wouldn’t accept him because they’re close-minded.”

[11]     He saw and heard of people who were transvestites that were either beaten or killed. He stated if he went back, he “couldn’t be himself” for fear of talking about what he wants to be and being killed.

ANALYSIS

Identity

[12]     I find that identity has been proven on the balance of probabilities by the proffering of a passport in the name of the claimant, XXXX XXXX XXXX XXXX XXXX, who wishes to be called XXXX. (see Exhibit #1)

Credibility

[13]     The determinative issue in this matter is whether or not the claimant has credibly demonstrated that he was born a female but is undergoing the process of transitioning to a male. On that issue, the panel has found there is more than enough evidence on the balance of probabilities to make that finding, based on the credible testimony of the claimant, corroborative statement documents and a document from the Gender Program stating that the claimant is on a waiting list. (Exhibit 5) The claimant stated that he went to see a doctor about having surgery which would help to transition him into a male, however he was told that he was too young. All of the above demonstrates the claimant’s clear intentions to transition despite being advised that it was not possible at this juncture due to his young age. As well, the panel has taken note that the claimant is on a waiting list to attend the Gender Program at the University of XXXX. It is reasonable to conclude, that by proceeding with such a project, that the claimant’s gender issues continue to dominate his life and further bolster his claim that he wishes to transition into a male.

[14]     The panel has noted that the Minister provided written submissions in this claim on the issue of credibility. Although it is not clear from reviewing the submissions and the documents, it would appear that the issue of credibility is based on the fact that the claimant originally applied to Canada for a student visa, which was rejected. A few months later, he arrived in Canada and applied for refugee protection. The panel has not been provided with the reasons for the rejection of the student visa application.

[15]     In arriving at a decision on credibility, the panel is unable to conclude that the minister’s submission negatively impacts the claimant’s credibility. The panel found the claimant to be credible in his testimony. He was consistent in his narrative and sincere in his beliefs. In particular, he described his past experiences identifying as a male, trying to express his gender identity as such and being met with a lack of support in his community; for example, having to miss school due to complaints made by his friends’ mothers regarding his request to be called a different name.

Nexus

[16]     I find that the claimant has satisfied the panel that he meets one of the five grounds set out in the Convention Refugee definition by meeting the criterion of being a member of a particular social group, more specifically as a transsexual male with intent to transition into a transgender man.

Well-Founded Fear

[17]     I find that the claimant has established that he has a well-founded fear of persecution.

[18]     Country conditions from the National Documentation Package demonstrate that Mexico is taking some positive steps with respect to public tolerance of lesbian, gay, bisexual, transgender or questioning (LBBTQ) individuals.2

[19]     However, according to a report by the transgender law centre in Cornell University Law School lesbian, gay, bisexual, and transgender (LGBT) clinic, it is noted that “it is important for adjudicators to be aware that sexual orientation and gender identity are distinct components of identity”.3

Gender identity describes “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body… and other expressions of gender, including dress, speech and mannerisms.” Sexual orientation, on the other hand, is “each person’s capacity for… sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Transgender women are as diverse in their sexual orientations as non-transgender women. They may identify as straight, lesbian, bisexual, queer, or any other sexual orientation. When asylum decisions refer to transgender women as gay men with female sexual identities, it is important to be aware that this may be an inaccurate and therefore disrespectful way of describing the individual’s gender identity. This inaccuracy can have serious and harmful consequences as it may contribute to misunderstandings regarding the deadly dangerous country conditions for transgender women in Mexico, as described below.4

[20]     As well, the same report’s Executive Summary states that despite the legal changes for same-sex couples in recent years, transgender women in Mexico still face pervasive persecution based on their identity gender identity and expression. It notes the following:

Indeed, violence against LGBT people has actually increased, with transgender women bearing the brunt of this escalation. Changes in the laws have made the LGBT communities more visible to the public and more vulnerable to homophobic and transphobic violence. Increased visibility has actually increased public misperceptions and false stereotypes about the gay and transgender communities. This has produced fears about these communities, such as that being gay or transgender is “contagious” or that all transgender individuals are HIV positive. These fears have in turn led to hate crimes and murders of LGBT people, particularly women. rans–women continue to face beatings, rape, police harassment, torture and murder in Mexico.5

[21]     It is reasonable to conclude from a review of the country conditions that while there has been some improvement in terms of attitudes towards LGBTQ issues, there is still a long way to go, particularly for persons with the claimant’s profile.

[22]     The claimant is still quite young. He encountered negative attitudes and even some discrimination while he was living in Mexico and while he was commencing his transition. Since coming to Canada he wears his hair very short, has changed his name, wears a “binder” to hide his female breasts and has inquired into having surgery to complete the transition. It is clear to the panel that the claimant is sincere in his desire to transition. I find that the country conditions demonstrate that the claimant would face a serious possibility of persecution if he were to return to Mexico and continue with the transition that he has begun. Notably, this is not a situation where the claimant would be specifically targeted by his family if he returned; in fact, he quite frankly stated that his family which includes his grandmother and even his father to a certain extent, have expressed support for the claimant’s gender transition.

[23]     I therefore find that the claimant would have a forward-facing serious possibility of persecution if he were to return to Mexico as a transgendered woman.

STATE PROTECTION

[24]     States are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence that state protection is inadequate. I find that the claimant has done so in this case.

[25]     The report referred to earlier from the Cornell University Law School states the following as it pertains to protections in Mexico for Transgender people:

As described earlier, transgender women have limited formal legal protections in Mexico against discrimination and hate crimes. Only Mexico City has an antidiscrimination law that explicitly protects against gender identity discrimination. Other protections that exist exclusively in Mexico City include name changes, legal recognition of gender changes, and specialized healthcare for transgender people. Transgender women continue to experience pervasive discrimination in public and in their private lives. Even a representative of CONAPRED stated that “tolerance towards groups such as homosexuals is still ‘practically the same’ even after the State [Mexico] recognized their rights.” The 2013 U.S. State Department Human Rights Report on Mexico stated that “discrimination based on sexual orientation and gender identity was prevalent[.]” It also noted that “the government did not always investigate and punish those complicit in abuses.” Transgender women often do not report hate crimes or police abuse because the authorities rarely investigate these crimes. When the police do get involved, they frequently minimize the crime and mischaracterize it. For example, in violent murder cases the police usually determine that the cases are “crimes of passion” instead of hate crimes. Holding police and military abusers accountable is also difficult. The process for punishing the police and military is “extremely slow and inadequate.” Transgender women avoid reporting police abuse out of fear of police retaliation against them or their family members. Further, human rights commissions tend to be anti-LGBT and will often disregard complaints by transgender women. Transgender women cannot depend on inadequate and ineffective laws penalizing hate crimes to protect their rights.

[26]     The same report referred to above also references a case of a transgender woman fleeing persecution and torture. The report finds that the court’s decision to grant asylum to the transgender woman was explicit in acknowledging that laws recognizing same-sex marriage do little to protect a transgender woman from discrimination, harassment and violent attacks in daily life in Mexico.6

[27]     I find based on the objective evidence referred to above demonstrates inadequate protection to transgendered persons and therefore rebuts the presumption of state protection

Internal Flight Alternative (IFA)

[28]     For an IFA to be exist, the panel must be satisfied on a balance of probabilities that (1) the claimant would not face a serious possibility of persecution in that location and (2) that conditions in that location are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.

[29]     Given the panel’s previous analysis of the objective evidence, which indicates that the problems faced by those in the claimant’s situation are widespread and tied to pervasive negative societal attitudes about the claimant’s particular social group, I find that the claimant would face a serious possibility of persecution throughout Mexico. Therefore, I find that an IFA does not exist for the claimant.

CONCLUSION

[30]     Based on these considerations I conclude that the claimant is a Convention refugee and I accept his claim.

(signed) “Bonita Small”

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

2 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 2.1: Mexico. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019.

3 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

4 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

5 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 5.

6 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, tab 6.3: Report on Human Rights Conditions of Transgender Women in Mexico. Transgender Law Center; Cornell Law School LGBT Clinic. May 2016, at p. 7.

Categories
All Countries Nigeria

2022 RLLR 1

Citation: 2022 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: April 29, 2022
Panel: M. Gayda
Counsel for the Claimant(s): Annie N O’Dell
Country: Nigeria
RPD Number: TB8-20107
Associated RPD Number(s): TB8-20130, TB8-20131, TB8-20132
TB8-20491
ATIP Number: A-2022-00210
ATIP Pages: 000001-000034

REASONS FOR DECISION

[1]       XXX XXXX XXXX (the “principal claimant”) and her four daughters, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the “minor claimants”), and XXXX XXXX XXXX (the “associated claimant”), citizens of Nigeria and Italy, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.2 The principal claimant was appointed as the Designated Representative for the minor claimants. She and the associated claimant, who is her 18-year-old daughter, testified on behalf of all the claims.

ALLEGATIONS

[3]       The claimants allege a fear of gender-based persecution resulting from domestic violence at the hands of the principal claimant’s ex-common-law husband, XXXX XXXX XXXX (“KO”) the biological father of her two youngest children. The principal claimant survived domestic violence at KO’s hands in Italy, where the family resided, and the associated claimant also experienced physical violence at his hands. The claimants allege that all her children, the associated claimant and the minor claimants, witnessed her being abused at the hands of KO in Italy for several years. The claimants used to live with KO in XXXX Italy, a city in north-west Italy, west of XXXX.

[4]       In Italy, the claimants allege that state protection is not adequate for them, given their personal circumstances and given their particular past experiences in attempting to obtain adequate state protection. One of the principal claimant’s attempts to obtain protection resulted in KO being charged and eventually convicted in 2018 for physically harming her in 2015. While these charges were pending, he continued to reside, by law, with the claimants and he continued his physical abuse. The principal claimant alleges that KO was sentenced to over a year of “house arrest” and that this was to occur with him living with the claimants in their shared family home. Fearing this situation would lead to further abuse, the claimants fled to Canada.

[5]       The claimants also allege a fear of gender-based persecution in Nigeria in the form of continued violence from her ex-husband in Nigeria. The principal claimant also alleges that she believes that KO is a member of a transnational criminal gang, the Black Axe Fraternity, and that this heightens the claimants’ risk of harm and their ability to be located in both Italy and Nigeria, by KO himself, KO’s family members and his associates. The claimants also allege to fear that the three minor female claimants would also face gender-based persecution in the form of female genital mutilation (“FGM”) at the hands of members of her family in Nigeria.

DETERMINATION

[6]       I find, for the reasons that follow, that the claimants have established that they would face a serious possibility of persecution in Italy and Nigeria and hence that they are Convention refugees pursuant to section 96 of IRPA. I therefore accept their claims.

ANALYSIS

Credibility

[7]       In making this assessment, I have considered all the evidence before me, including the claimants’ oral testimony over three sittings, the evidence as set out in the Consolidated List of Documents, counsel’s submissions, as well as the Chairperson’s Guidelines, specifically Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution3 which highlight that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. Factors that may affect their ability to provide evidence include difficulty in providing testimony on sensitive matters, cross-cultural misunderstandings as well as social, religious and economic differences.

[8]       I have also considered the psychological assessment before me from a registered psychologist for the principal claimant4 in assessing the principal claimant’s testimony. This psychologist provided a report from an in-person assessment in January 2019 with the principal claimant that consisted of a 4.5-hour visit, involving a semi-structured interview and three psychological screening measures. The psychologist found that the principal claimant’s description of symptoms and answers to questions indicated that she was dealing with XXXX XXXX XXXX XXXX XXXX, was consistent with her described experience of traumatic events and met the provisional criteria for XXXX XXXX XXXX XXXX

[9]       I found the claimants’ testimony to be generally credible with respect to the core allegations of their claim. The principal claimant and associated claimant testified consistently with their BOC forms and their corroborating evidence and provided elaborative details in a natural manner about their circumstances and the incidents that led them to flee Italy and why they believe they would face risks in Nigeria. They provided a good deal of corroborating documentation, and reasonable and knowledgeable responses about this documentation when asked. Their responses to my questions were reasonable and did not appear to be evasive or to embellish their fears.

[10]     I find the claimants to be credible with respect to their core allegations of fearing persecution for themselves and the minor claimants in Italy and Nigeria, and that they have credibly established, on a balance of probabilities, that violence and continued threats of violence from the principal claimant’s ex-husband, KO, have caused this fear. Moreover, they have also credibly established the core allegation of fearing gender-related persecution for the minor claimants in Nigeria, in them being subjected to FGM by the principal claimant’s family. The claimants also provided corroborating evidence with respect to core elements of their claim, and this assists in establishing their allegations, on a balance of probabilities. I will refer to some of this corroborating evidence in my analysis below.

Identity

[11]     I am satisfied that the personal and national identities of the claimants have been established on a balance of probabilities through the principal and the associated claimants’ testimony and the certified true copies of the claimants’ Italian and Nigerian passports, the originals having been seized by the Canada Border Services Agency (CBSA) upon the claimants’ arrival in Canada.5 I find on a balance of probabilities that the claimants are dual citizens of Italy and Nigeria and do not hold citizenship or permanent residence in any other country.

Nexus

[12]     The nexus to a Convention refugee ground for the claimants is that of their membership in the particular social group of women and girls fearing gender-based persecution. The claimants fear domestic violence from KO and those who may associate with him in the Black Axe criminal group, or other individuals that KO may hire to harm them in Nigeria and Italy. The principal claimant has also set out a fear of FGM, another form of gender-based persecution, for the minor claimants in Nigeria, at the hands of members of her own family who support this practice and believe that girls in the family should have it done, even though the principal claimant, their mother, does not want them subjected to this cutting.

[13]     I also note that the claimants’ experiences in Italy, and particularly the principal claimant’s experiences in attempting to obtain protection from Italian state authorities, are also impacted by their race, as Black individuals with dual Nigerian citizenship. Race is an enumerated ground in the Refugee Convention. I have considered how both the immutable characteristics of race and gender intersect and affect the risks alleged by the claimants and this includes their experiences in attempting to obtain adequate state protection, and in attempts they would make to relocate in Italy. Since l have found a nexus in these claims, I have analyzed and accepted these claims pursuant to section 96 of IRPA.

Well-Founded Fear of Persecution

Subjective Fear

[14]     I find that the claimants have established through their credible testimony and reliable corroborating evidence that they are subjectively fearful of returning to Italy and Nigeria. They fled Italy for Canada on XXXX, 2018 and initiated their claims for refugee protection at the airport in Toronto. I find that the claimants’ actions including in the principal claimant’s brief visits to Nigeria at particular points in time prior to them leaving Italy on XXXX, 2018, are consistent with a genuine subjective fear of persecution, in light of their personal circumstances.

Objective Basis for the Risks alleged

Italy

Domestic Violence

[15]     The claimants fear domestic violence in Italy from KO or violence directed at them by his associates in Italy. The country conditions evidence indicates that there are significant concerns with respect to domestic violence against women in Italy. The United State Department of State Report for Human Rights Practices for 2020 in Italy notes that 535 women were killed by domestic partners in the first six months of2020 alone.6 The New York Times in 2018 cites a Eures study that noted that 150 women were killed in Italy each year by abusive partners and that this number makes it one of the highest death tolls in Europe for domestic violence deaths.7 The Eures study also notes that in one third of the fatalities of women at the hands of their domestic partners in Italy, the victims had already complained to the police.8 A 2021 news article notes that one woman is killed every three days in Italy, and that societal attitudes in Italy, even based on a very recent survey, continue to condone and accept violence against women as a normal part of intimate relationships.9 Based on the sum of the country conditions evidence before me, I find that there is a well-founded objective basis for the risks to the claimants of domestic violence from KO in Italy.

Nigeria

Domestic Violence

[16]     Sources indicate that domestic violence remains “widespread” and “prevalent” in both urban and rural areas of Nigeria,10 and many viewed it as “socially acceptable.11” It has been attributed to the ongoing power imbalance between women and men in Nigerian society, and deeply engrained societal attitudes about women’s subordination to men, though there is some evidence that these attitudes are changing.12

[17]     I find that the principal claimant has credibly established, on a balance of probabilities, that she survived repeated instances of domestic violence from KO in Italy. I also find that her eldest daughter (the associated claimant) faced physical assaults from KO and witnessed a good deal of the domestic violence suffered by the principal claimant at KO’s hands. The minor claimants were also in the household and witnessed this domestic violence. I find that the claimants have credibly established that KO has sought the claimants out in Nigeria, and that others in his family and those he associates with, have threatened and physically harmed her mother in Benin City, Edo state. I also find that she has credibly established that KO has spoken in a hostile and threatening manner about her and her role in him having been charged and convicted in Italy, as mutual acquaintances in Nigeria, have contacted the principal claimant in Canada to warn her of KO’s statements.13

The Black Axe criminal group in Nigeria and its trans-national reach, including in Italy

[18]     I also accept that the claimants have credibly established hat KO is affiliated with a criminal group, and on a balance of probabilities, that it is the Black Axe cult or gang. The principal claimant testified about why she believes KO is involved with this gang, based on his behaviour, the type of music and videos he watched and the number of connections he had in many different places in Italy, other European countries as well as in Nigeria. She also testified about how he would boast that he was able to send his “boys” to deal with persons in Italy and also in Nigeria; in fact, he was able to command his brother as well as his “boys” to go to her mother’s home in Benin City, Nigeria where they physically assaulted her mother and threatened her with more harm if she did not contact the principal claimant. She did not appear to embellish her evidence in testimony, admitting that KO never directly acknowledged his involvement in the Black Axe to her. I find that this is consistent with what is known about the Black Axe gang, in that its origins in Nigeria close to Benin City where the principal claimant and the KO both hail from, is described as a secretive, cult-like society. I find the principal claimant’s testimony to be credible.

[19]     Documentary evidence before me indicates that the Black Axe cult tends to be secretive and began as a fraternity-type organization but has evolved into a criminal gang that has a strong presence in Benin City, which is regarded as the gang’s “headquarters.”14 The violence and crimes perpetrated by the Black Axe cult or gang in Nigeria and other countries, including the trans-national scale of this gang’s operations that include human trafficking and smuggling, prostitution and money laundering, is set out in the documentary evidence.15 The trans-national nature and the evolution of the criminal operations of this Black Axe gang is also detailed in recent sources provided by counsel.16 I find this reliable and credible evidence. This evidence indicates that there is a heightened risk posed by the principal claimant’s ex-husband to herself and the other claimants, from KO. This heightened risk comes from his affiliation with the Black Axe gang, and his ability to call on others in the gang to do his bidding. The claimant testified that she believes that he has this power and ability to call his “boys” to harm her and her daughters in Nigeria, just as he has called on them, as well as his own brothers, to harm her mother in Nigeria who was beaten by them in XXXX 2018.

[20]     Therefore, I find that the claims with respect to Nigeria, for the principal claimant and her eldest daughter, the associated claimant, are objectively well-founded. I find that they would face a serious possibility of continued violence at the hands of her former husband/ the associated claimant’s stepfather, and those who are associated with him and act on his behalf, in Nigeria.

Female Genital Mutilation (FGM)

[21]     I also find that the claims of the principal claimant’s other three daughters, the minor claimants, are objectively well-founded with respect to Nigeria. The objective country conditions evidence indicates that FGM remains prevalent in Nigerian society.17 The principal claimant is from the Edo ethnic group and from the area of Benin City in south-central Edo state; Edo state is noted to have a FGM prevalence rate of 35.5% of women ages 15-49 in Nigeria’s National Population Commission’s 2018 Demographic and Health Survey.18 The principal claimant alleges that she underwent FGM as an infant and that this is customary in her ethnic group and family.

[22]     The Edo ethnic group is reported to be one of the groups that continue to perform FGM. The European Asylum Support Office (EASO) Guidance report from 2019 found that the Edo ethnic group was one of the ethnic groups with the highest prevalence rates of FGM in Nigeria, between 69 to 77 percent of women and girls having had FGM performed.19 The documentary evidence also notes that some rituals and specific customs are family, village or community­ specific and therefore generalizations concerning the specific aspects of such customs and traditions are difficult to make.20

[23]     She also alleges that her family members had FGM performed on her eldest daughter, the associated claimant, when she was 4 years old. She and her daughter were visiting Nigeria and the principal claimant had left her alone with her family. This was done without the principal claimant’s consent, and she alleges that since that time she has been scared to leave her other daughters, the minor claimants, alone with her family in Nigeria for any reason. The principal claimant testified that she believes an elder sister, XXXX, was responsible for subjecting the associated claimant to FGM, but she is not sure to what degree her mother and other eider sisters who remain in Nigeria (the claimant has five eider sisters residing in Nigeria21) were involved in this. She testified that her mother and her sisters are supportive of FGM, it has been a tradition in her family for herself and her sisters to have it done, and that they believe that the minor claimants should be subjected to FGM.

[24]     She alleges a fear for the three minor claimants in Nigeria of being subjected to FGM against her wishes and that this is a serious infringement on their bodily security as this is not something she had wanted for her eldest daughter, given the health and other risks and implications of this mutilation. The principal claimant alleges that she is fearful that members of her family, particularly her eider sisters in Nigeria, would take her daughters and have this done to them without her consent as their parent. The claimants provided medical documentation, namely confirmation from a registered nurse at the XXXX XXXX XXXX XXXX XXXX XXXX, who examined the associated claimant and confirmed she had undergone FGM.22 Also, the associated claimant testified credibly and briefly about the fact that she had had this done to her body and had experienced health problems associated with it.

[25]     The documentary evidence about FGM in Nigeria describes that the practice remains rooted in discredited and gender discriminatory customary beliefs, for example that the cutting of the genitals of girls and women will stop them from “promiscuous” behaviour, including being unfaithful to their husbands, and that uncut girls and women are somehow “unclean”.23 In communities and families where FGM is prevalent, the practice is closely tied to concepts of family honour and girls’ marriageability. Sources note that girls “may be ostracized, shunned or assaulted by their family or community if they have not undergone FGM” and could face stigma and social exclusion if they do not undergo FGM.24

[26]     The NDP notes sources that indicate that the final decision to subject a girl to FGM is “most often” up to the parents but that there is “considerable variation both individually and among different ethnic groups.”25 Amongst family and ethnic groups that have girls and women undergo FGM, there is often societal and economic pressure put on parents and the threat of social exclusion or alienation from their families or local communities, to induce them to have FGM performed on their daughters.26 FGM is considered a “family issue” and parents who refuse to have their girls undergo FGM when other family elders expect it to be done, are those who are “well off’27 [financially] and girls who do not have it done when their family or group expect it, can be “ostracized, shunned or assaulted by their family or community” if they have not undergone FGM.28

[27]     The 2021 Response to Information Request (RIR) references the 2019 EASO report that notes a “few cases of relatives disregarding the parents’ decision and subjecting the girl to FGM/C [have been] reported, although it is considered to be very unusual.”29 Other sources in this 2021 RIR however note that is not unusual for relatives to take a girl to have her cut, amongst groups that continue to practice FGM, and it is particularly elder female members of the family who ensure that FGM is performed on a young girl, even when a parent is opposed to this practice:

…older [family members] such as grandmothers are keepers of these practice[s] and ensure that new girls in the family are cut”; even if the mother does not want her daughter to undergo FGM/C, she is “almost helpless” to refuse and FGM/C “will most likely” be performed if older family members “support the practice” (Research Analyst 9 July 2021). The Executive Director of SDI noted that the grandmother will travel to the girl’s home to ensure FGM/C is performed (SDI 18 Oct. 2021). According to the Executive Director of Value Female Network,

grandparents will do everything to make sure their granddaughter is cut. They do not want traditions to end. They will travel from a very far community, pay for accommodation, pay for everything. They will go the extra mile. They will ensure the girl is cut. They will keep it in their mind for years and wait until they can do it. (Executive Director of Value Female Network 7 Oct. 2021)

According to the Program Officer, if a mother refuses FGM/C for her daughter, the child can be taken by force by the woman’s family (Program Officer 1 July 2021).30

[28]     I therefore find that the principal claimant’s fear for the minor claimants in Nigeria is objectively well-founded. I find that the minor claimants would face a serious possibility of persecution on account of their gender, namely FGM, and being subjected to this at the hands of older relatives, namely their older aunts (the principal claimant’s older sisters), as was experienced by the associated claimant, their own sister, when she was a young girl at the hands of members of the principal claimant’s family when she and the principal claimant visited Nigeria.

State protection

Italy

[29]     For the reasons that follow, I find that the claimants have rebutted the presumption of state protection in Italy. I find that the claimants have presented clear and convincing evidence that given their particular circumstances, adequate state protection would not be available to them in Italy. This includes the principal claimant’s own previous experiences in attempting to obtain protection from the state, as well as the objective documentary evidence before me with respect to serious gaps in the implementation of Italy’s domestic violence laws, evidence of the inconsistent and arbitrary implementation of Italy’ s domestic violence laws, partially caused by continuing societal attitudes rooted in discredited myths and stereotypes about sexual assaults and violence against women, and documentary evidence about widespread anti-Black racism in the country.

The principal claimant ‘s own experiences in trying to obtain state protection

[30]     The principal claimant testified about her experiences in seeking protection from the Italian police due to KO’s domestic violence. Prior to 2015, she called the police “more than four or five times”. She testified that each time she called them, the police came but then just gave KO advice or a warning, saying things like “if you do that next time, we will have to arrest you”, “you have to stop beating her”, “take it easy, don’t beat her, she’s pregnant” and then would leave, without investigation or charging her ex-husband. She recalled the police’s visits as brief­ only a matter of minutes, and she remembered one time she called the police, and they did not come at all. She also testified that on one of these occasions she had been clearly injured with blood coming from her mouth and nose, and still the police did not intervene in a serious or effective manner. She testified that she believed that the way police treated her in this manner, in not offering her meaningful protection and viewing what she was going through as something that was “normal” amongst Nigerian men and women, was impacted by her race, as a Black woman of Nigerian descent. She described that there was a great deal of racism in Italy towards Black persons like herself, and that she had heard of such similar ineffective and racist experiences from another Black female friend in Italy who had previously contacted the police for protection from domestic violence.

[31]     The principal claimant described feeling further discouraged by the police response after the October 2015 assault against her when the police did charge KO and took him in for questioning, holding him for a few hours. She testified that she believes the police did something on this occasion because it was one of the minor claimants, XXXX who called them for help and also because a medical examination and MRI confirmed that had received a XXXX XXXX XXXX. The police released KO while this assault charge was pending, and the police knew he was returning to reside with her and the other claimants. She testified that the police told her that since he was the only financial provider for the family, he was being released. The principal claimant described in her testimony that the police did not offer her any referrals or assistance in contacting a women’s shelter or any other kind of support, despite her request about whether these options were available for her. They also did not offer that any kind of protection or barring order (from him returning to the family residence) was an option for her.

[32]     With this release arrangement, the principal claimant testified that the police called her each day for about one month to check on her to see if she was being beaten by KO. The principal claimant testified that KO noticed when the police stopped calling, and his violence against her resumed when the calls stopped. She testified that KO understood how ineffective the police were and was far from deterred and in fact felt emboldened by his ability to continue to harm her without any real repercussions. He was dismissive about the police response, saying to her: “They gave me a paper and that is it- they didn’t hold me; this is all they can do.” She testified to learning at one point about KO’s past criminal record in a different district for beating his first wife, and in 2015 when she was questioned by police, it was clear to her that the police knew about KO’s violent criminal record as well, yet this criminal history did not change the police’s response to releasing him to reside with the claimants while the 2015 charges were pending. She testified as well that KO seemed to start exhibiting a particular anger towards the minor claimant, XXXX for her role in calling the police, and the principal claimant testified that she was frightened of him harming her, as well as her other daughters, the other claimants.

[33]     The corroborating documents provided by the claimants from the Italian court and public prosecutor’s office indicate that KO weas sentenced to a XXXX XXXX XXXX            imprisonment for assaulting the principal claimant,31 and also that in consideration of a previous offence for domestic violence against his first wife, a one-year, ten-month sentence was also being considered as a sentence.32 The sentencing document from the public prosecutor’ s office from XXXX XXXX 2018 indicates that enforcement of the sentence could be stayed while the offender applied for certain “alternative measures to detention” such as “home detention”.33

[34]     The principal claimant testified that KO told her that his lawyer was working towards him getting a sentence of house arrest, so that he would not have to serve time in prison. She testified that KO’s lawyer, the police, and then a social worker asked for her consent to this house arrest, and that she was never asked this question privately on her own, when KO was not there with her. She testified to feeling terrified and helpless, as KO was threatening her that he would kill her if she did not agree to the house arrest. Within this context, the principal claimant indicated that she signed some a letter with KO’s lawyer, indicating that she had forgiven him, and that she agreed to the house arrest. The principal claimant described that the idea of KO having to be home with her and the minor claimants scared her deeply, as did the expectation that she was to inform the police if KO left the home for an unauthorized purpose. The principal claimant testified that she feared that reporting on him would have put her and the minor claimants at increased risk of harm at his hands. She believed that he would also likely take out his stress through violence on all of them while they lived together in this house arrest situation. In her BOC narrative she stated, “I was his victim and the Italian government wanted me to be his jailer.”34

[35]     The principal claimant also provided corroborating documents about KO’s sentencing hearing that took place on July 18, 2018.35 She testified that she did not have a copy of the letter that KO’s lawyer had her sign, as she was scared to ask for this and raise KO’s suspicions and possible retaliatory violence, for thinking that she was going to withdraw her consent. The principal claimant testified that she began to make her plans to flee Italy with the minor claimants when she was informed about this sentencing hearing and after KO and his lawyer had asked her to sign her consent to the house arrest proposal.

[36]     The principal claimant testified that to the best of her knowledge KO’s house arrest is now completed. She heard from mutual acquaintances in Nigeria that KO had travelled to Nigeria in around XXXX to XXXX of 2021. She testified that her sister who resides in Italy informed her that KO was previously seen in the community in XXXX, Italy at parties during the time of him sentence, not apparently following the conditions of his house arrest, but the police did not find out about this. She testified that her sister went to her home after she came to Canada to try and get some of the claimants’ belongings, and that KO did not allow her to enter the apartment, saying in an accusatory way to her sister, that the principal claimant had “caused” his house arrest.

[37]     She also testified that she believes that KO continues to live in XXXX, Italy, as her sister told her that she saw KO at a bus stop in XXXX a few months ago. The principal claimant also testified that to her knowledge, while KO’s criminal convictions may have caused him problems in obtaining Italian citizenship, he continues to have permanent residence in Italy, giving him the ability to remain living and working in that country.

Racism in society and from state authorities in Italy

[38]     I find that the principal claimant’s ability to access adequate state protection in Italy is impacted by the intersecting, immutable characteristics of her race and gender. She is an Italian citizen who is also a Black woman of Nigerian descent. The documentary evidence indicates that racism remains a serious problem in Italy, with very real consequences for visible minorities and those of African descent, specifically. In recent years, sources such as the Office of the United Nations High Commissioner for Human Rights, in its 2019 Report entitled, Mission to Italy on Racial Discrimination, notes serious concerns that Italy “is experiencing an increase of intolerance, racial and religious hatred, and xenophobia, which in some cases is allowed or even encouraged by political leaders and members of Government.”36 This report also addresses serious shortcomings in Italian police accountability and reporting of racially biased statements and actions of state law enforcement related to migrants and other persons of colour.37

[39]     Based on the evidence before me, discrimination based on race and racially-based incitements to violence are increasing and remain a widespread problem in Italy.38 Sources also report that Italian state officials, elected and those running for office, are implicated in fueling anti-migrant and racist views, and that in addition to increasing acts of racist violence, systemic racism exists in Italy towards those viewed as immigrants and/or persons of colour.39 This includes attitudes, perceptions and actions of Italians that accept and promote racist policies and outwardly racist statements and treatment of persons of colour40, with one recent study noting that more than half of Italians surveyed responded that racist acts were either always or sometimes “justifiable”.41

[40]     A 2016 report from the United Human Rights Council, Working Group of Experts on People of African Descent- Mission to Italy, found that despite some efforts of the Italian state, “racial discrimination, Afrophobia and racism persists and people of African descent continue to be the least integrated, most marginalized victims of racial profiling.”42 The authors of this report further found that written legislation and policy measures to combat racial discrimination were not being adequately implemented by the state of Italy.43 Further in this report it is noted: “Afrophobia and racial discrimination are manifest in the lack of protection afforded to people of African descent, a vulnerable group; in the difficulty that people of African descent have in gaining access to justice; and in the failure to prosecute and provide reparation and remedy.”44 This report also notes with concern the frequent racist discourse in Italy’s political system, targeting public figures and politicians of African descent, as well as the immunity that has shielded parliamentarians who make racist remarks.45 The Working Group further reported that: “[t]oo often immunity and impunity for racism creates an enabling environment for racist abuse to be perpetrated at all levels of society, even if some ad hoc punitive measures have been adopted.”46

[41]     I find therefore that the objective country conditions evidence is consistent with the principal claimant’s experiences of racism in Italy, in her encounters with police and in other aspects of her life there as well. I find that the continued systemic nature of racism in Italy impacts and intersects with the principal claimant’s lived experiences as a woman who could not attain adequate state protection in Italy from her abusive husband. I find that as an Italian citizen, she is also a Black woman of Nigerian descent, and based on her own experiences, she did not receive adequate state protection in the past. Based on her personal circumstances that include the immutable characteristics of her race and gender, as well as the country conditions evidence before me, I find that adequate state protection would also not be forthcoming to her in the future in Italy.

States Response to Domestic Violence in Italy

[42]     I note that Italy is making many efforts to address gender-based violence. Domestic violence is criminalized in Italy, and perpetrators are prosecuted. Italy is a sophisticated liberal democracy. Rebutting the presumption of state protection is a heavy burden. Italy ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, (CETS No. 210), known as the “Istanbul Convention” in 2013.47 Thereafter, Italy is noted by the Council of Europe’s Group of Experts on Combatting Violence against Women and Domestic Violence (GREVIO), an independent group that is responsible for monitoring the implementation of the Istanbul Convention, to have has taken a “range of measures to implement the Istanbul Convention”, including legislative reforms and an extensive set of rules and mechanisms aimed at concrete actions to stop violence against women.48 Highlighted in the GREVIO 2020 Report is Italy’s legislation that has expanded the law on criminal stalking and increased and expanded legislative sanctions for crimes of gender-based violence, and increased national funding for specialist support and protective services to assist women and children fleeing domestic violence.49

[43]     However, despite these efforts, I find that the country conditions evidence indicates that there are some critical shortcomings and problems in the implementation of the domestic violence legislative framework in Italy, including serious gaps with respect to urgent protection order mechanisms. I find these serious deficits in the implementation of Italy’s domestic violence laws are compounded with the impact of racism for these particular claimants. Such serious shortcomings in the state response were illustrated in the claimants’ own attempts to obtain actual protection from domestic violence from the Italian state.

[44]     State protection need not be perfect, and I acknowledge that the Italian state did make an attempt to protect the claimants on one occasion through the prosecution of KO. However, based on the claimants’ particular circumstances and evidence before me, I find that attempt was far from adequate. The claimants were put at increased risk of physical harm through the manner in which the Italian state prosecuted these charges, including the lack of effective and timely protective or restraining orders in Italy for victims of domestic violence while charges are pending, such that KO returned to live with and physically abuse the claimants for over two and a half years while his charges were pending; the state also did not consult with the principal claimant privately about acquiring her consent for KO to serve his sentence under house arrest with her and the other claimants. I find that the way in which state officials acted with respect to this final issue demonstrates a clear misunderstanding or disregard for the imbalance of power in domestic violence situations and the real-world reality faced by victims: asking a woman in the presence of her abusive spouse to agree to a detention arrangement that would have the real possibility of increasing her and her children’s risk of harm is essentially asking her to make this choice under duress without a true opportunity to voice her concerns with such an arrangement: this was not a meaningful or voluntary “choice” for the principal claimant.

[45]     The evidence before me points to a serious problem of gender-based violence in the country-the United State Department of State Report for Human Rights Practices for 2020 in Italy notes that 535 women were killed by domestic partners in the first six months of 2020 alone.50 Another source from 2018 noted that approximately 150 women are killed by abusive partners each year, and that in one-third of fatal cases, the victims had already complained to the police.51 Advocates for women and critics of the Italian system have noted that tougher legislation is not necessarily the solution; existing laws are adequate, but arbitrarily applied.52 This inconsistency in the domestic violence law’s application is fueled by patriarchal socio­ cultural attitudes in Italy that justify or excuse violence against women, police officers not believing women, those in the investigatory process (police officers, social workers and judges) being unprepared, and a very long judicial process that can take several years to come to a final decision.53 I find that the objective country conditions evidence before me is consistent with the principal claimant’s described experiences of her many calls to the police over the years prior to KO being charged in 2015, in that these interactions with the police did not result in anything more than her abuser being told to treat her better.

[46]     Moreover, I find that there are critical problems with the state’s mechanisms with respect to delays and the inconsistent issuance of protection or barring orders for alleged perpetrators of domestic violence to vacate a shared residence when charges are laid. Such orders are noted to be ineffective by GREVIO in their January 2020 Report entitled, GREVIO Baseline Evaluation Report Italy (“GREVIO report”).54 Sources note that the Italian law does not automatically require that the alleged abuser leave the home when charged with abuse.55 The GREVIO report notes serious shortcomings in a domestic violence victim’s ability to obtain meaningful restraining orders, citing research that Italian authorities do not have measures in place for an immediate response if a victim calls in to report a violation of a protection order. GREVIO stresses that “an instant response to these calls is pivotal in light of the well-documented fact that a violation of a protective measure is a strong indicator of a potentially high-risk situation. [emphasis added]”56 The report notes the concern that criminal courts did not collect data on the issuance of restraining and protection orders (termed “precautionary measures”) and that this impacted the ability of GREVIO to report on the effectiveness of such measures to protect women. Women’s organizations and legal practitioners shared with GREVIO that there were problems for women in obtaining such measures in the first place, noting instances of victims’ requests for such measures remaining “unheeded and the risk they are exposed to is underestimated, leading to courts’ reluctance to issue precautionary measures (particularly where there is no physical violence), delays in their issuance, negligence in their enforcement and minimization of the risks signaled by a breach of such measures”.57

[47]     As further noted in the GREVIO report, a protection order from a criminal court in Italy must be requested by a prosecutor, and as set out above, even if one is in place, there is no process in place of immediate action in case of a reported breach by an abuser. With respect to civilly obtained protection orders, GREVIO notes that the state is also not keeping data with respect to these orders, which represents an obstacle in effectively monitoring their use. Women’s organizations, however, have indicated that these types of civil protection orders can take “several months” to be granted and that there exists “uneven and restrictive court practices in assessing the conditions under which protection orders apply and can be extended”.58 GREVIO notes with concern that this undermines women’s protection and that some civil courts take the approach of seeking to reach a compromise between the victim and the perpetrator rather than taking a position on the request for a protection order, an approach which, according to GREVIO, “would reflect a severe misunderstanding of the dynamics of violence against women.”59 The impact of these problems on the protection of women facing domestic violence in Italy is described in this report:

the lack of an automatic reaction on the part of statutory agencies to violations of protection orders sends the message that infringements are tolerated. Once the offender realises he can get away with his misbehaviour, the deterrent potential of protection orders is significantly diminished. This can not only provoke future violations, but it can also seriously discourage the victim, who should not be left alone in having to ensure that protection orders are enforced.60

[48]     The GREVIO report also refers to a 2018 Italian government report, noting the concern about a lack of consistency with the police response to domestic violence in Italy, including that the police arbitrarily conducted risk assessments in domestic violence situations, noting that in “many cases of gender-based violence, risk assessments are totally omitted, while in others, police officials assess risks based on their experience and intuitive skills instead of structured and standardized parameters.”61 The GREVIO report also reflects findings of a 2018 Italian Judiciary report that “less than 20% of prosecutorial offices and only 8% of adjudicating offices had adopted risk-assessment criteria to enable law enforcement agencies, prosecuting authorities and criminal or civil courts to prevent reoffending and the escalation of violence.”62 GREVIO notes that a “serious underestimation of the risk” in situations of domestic violence was at the heart of the European Court of Human Rights’ judgment in the Talpis v. Italy decision.63 This decision noted several serious shortcomings in the Italian state response to responding to domestic violence, including the inadequate assessment of the victim’s risk, the delayed response to the victim, and that no emergency protection order was issued.64

[49]     The police and state’s dismissive response to violence against women was also illustrated in a recent Toronto Star article from January 2022 describing a Canadian woman in Italy who was seriously beaten in public by a taxi driver. The initial response and actions of the police and hospital staff was to not take the matter seriously. She was visibly injured and there were witnesses to the attack. The police took the man’s statement, and then allowed him to drive off in his taxi. The victim describes the indifference of hospital staff towards her, telling her she was not facing an emergency because she was hit by a man, and that because they were dealing with COVID, they had “bigger issues than a girl crying over a man who hit her.” After a video of this assault was posted on Twitter, there was a large outpouring of support for the woman and state officials have publicly condemned the assault.65

[50]     Also noted in the sources before me is the continued acceptance of “hurt feelings” defenses by the courts in domestic violence cases in Italy, including in cases of serious bodily injury and femicide, resulting in reduced sentences because the crime is viewed as somewhat understandable due to emotions or passion taking over the aggressor in situations where a victim is viewed as having brought on such violence through her own behaviour.66 While it is laudable that the prime minister in 2019 publicly criticized such reasoning by the courts67, I find that the fact that this kind of reasoning continues to be used by the judiciary on some occasions in recent years, is further indication of the inconsistent and what has been described in other sources as the “arbitrary” implementation of the domestic violence laws in Italy by police officers, as well as the judiciary.

[51]     For example, another source from 2018 speaks of two foreign students who accused police officers of rape were themselves accused of being drunk and being dressed inappropriately.68 A further 2018 article describes a woman’s account of a police officer asking her whether she wasn’t “just having an argument” with her husband, when she had called the police for protection from her husband’s violence.69 An appeal court’s 2017 ruling, condemned by protesters and which was later overturned by Italy’s highest court, was that a woman’s story of being raped was not credible because she looked “too masculine” and it was improbable that the accused men would have wanted to rape her.70

[52]     I find that such discriminatory and discredited understandings about gender-based violence as displayed by the police and courts in Italy reflect the information in other sources about socio-cultural attitudes in Italy that show a level of acceptance of certain levels of violence against women in intimate partner relationships as normal and assumptions about sexual violence and intimate relationships that are rooted in gender discrimination and myths and stereotypes about gender-based violence: a 2021 Italian survey presented to the Italian senate indicated that 40 percent of men and 20 percent of women did not consider it violence to “slap a partner in the face if she has flirted with another man”, and that four out of ten men and 3 out of 10 women did not consider it violence to “force a partner to have sexual intercourse if she does not feel like it”.71

[53]     I also note that the sources indicate that there is a serious shortage of women’s shelters and that this is viewed as being a barrier to women leaving violent partners. One women’s advocate in 2018 noted that Italy’s 100 shelters was woefully inadequate to serve Italy’s population of 60 million. The advocate indicated that six times this number was needed.72 Italy is reported to have provided a good deal of funding in recent years for shelters and “anti-violence” centres for women, however, the exact number of shelters as set out in the GREVIO report is noted to be “uncertain” with the government claiming that there are 228 shelters and women’s organizations estimating a considerably lower number of 79 shelters.73 This lack of availability of women’s shelters, compounded with the principal claimant’s described first-hand experiences in her testimony of racism in the past in searching for housing on her own as a Black woman, heightens the claimants’ risk in this claim. This factor is a further way which the state’ s response to her as a Black Italian female citizen requiring protection from domestic violence is inadequate.

[54]     Counsel submitted a great deal of country conditions evidence that points to serious gaps and ineffective implementation of Italy’s laws and policies aimed at protecting women from violence. I have set out some of it in the above paragraphs. I accept that these laws may be adequate for some; and that the country conditions evidence shows that the state has made serious efforts to combat domestic violence in recent years. However, the test that I must consider is whether there is clear and convincing evidence of adequate state protection for these particular claimants. I have therefore considered whether state protection in Italy would be operationally effective for these particular claimants, taking into account their personal circumstances, and this includes the responsiveness of the state and their treatment by Italian authorities as Black women and girls. I find that for these claimants, in light of what the principal claimant experienced in her attempts to obtain state protection in Italy, and in light of the intersectional factor of race, as Black Italian citizens of Nigerian descent, that state protection would not be adequate. The claimants have therefore rebutted the presumption of state protection.

Nigeria

[55]     I also find that the claimants have rebutted the presumption of state protection in Nigeria. I find that there is clear and convincing evidence that adequate state protection would not be available to them in Nigeria. The claimants fear violence from KO himself, his family and his associates within the Black Axe gang. The principal claimant provided evidence that her mother had been physically assaulted and threatened by KO’s brother and KO’s associates in XXXX

2018 who were demanding that her mother contact the principal claimant, and that KO’s family continued to contact her family in Nigeria after this point. The principal claimant also fears that members in her family, in particular her elder sisters, will forcibly take the three minor claimants to have them undergo FGM without her consent.

[56]     Documentary evidence before me indicates that women in Nigeria rarely tum to the police for assistance in domestic violence matters, and those who do are often turned away by officers who consider it a private or family issue.74 The United States Department of State Report on Human Rights Practices in Nigeria for 2020 states that, “[p]olice often refused to intervene in domestic disputes or blamed the victim for provoking the abuse. In rural areas courts and police were reluctant to intervene to protect women who formally accused their husbands of abuse if the level of alleged abuse did not exceed local customary norms.”75 A number of sources indicate that both implementation and enforcement of laws prohibiting violence against women are lacking throughout Nigeria.76

[57]     Sources indicate that while the level of response depends on the victim’s level of education and the individual police officer taking the report, complainants are sometimes blamed for provoking the abuse, or otherwise mistreated during the intake process. According to other sources, if both parties are present, the male is believed over the female making the complaint.77

[58]     Nigeria’s legal system is a mix of common law, sharia law, and customary law. Sources indicate that there is no comprehensive national law applied throughout the country to combat domestic violence or violence against women.78 Certain sections of Nigerian law also permit men to use “corrective” force against their partners.79 The 2015 Violence Against Persons (Prohibition) Act (VAPP) was a positive development, prohibiting gender-based violence, including domestic violence and harmful traditional practices such as FGM. However, sources report that as a federal law, the VAPP is only effective in the Federal Capital Territory (FCT) of Abuja; only the high court of the FCT has jurisdiction to hear and grant applications, including restraining orders.80 While some states have their own domestic violence and/or FGM legislation, only a third of states have ratified the VAPP.81

[59]     With respect to FGM, while the VAPP prohibits FGM, the documentary evidence suggests that this prohibition is rarely, if ever, enforced in Nigeria.82 Even with the passing of these laws, FGM in Nigeria remains “widespread, with low rates of reporting and prosecution”83 Sources note that the Nigeria police are reluctant to provide protection to persons who refuse to undergo family traditional practices, including FGM. Reasons for this lack of enforcement and reluctance from the police include cultural beliefs held by police officers themselves, in that the police have difficulty recognizing the criminal nature of ritual practices, respect for these traditions and customs by the police and the discriminatory treatment and attitude towards women in Nigerian society.84

[60]     Other evidence notes that it “remains extremely difficult for women and girls to obtain protection from FGM” despite the enactment of anti-FGM laws in the FCT and anti-FGM legislation in many states, as community support for the practice of FGM and the traditional attitude of the police help to support such practices.85 The report by the British non­ governmental organization, 28 Too Many, of June 2018 confirms that “knowledge of the [FGM] law and enforcement is generally weak across Nigeria” and that there have been no reported arrests, cases, prosecutions or convictions for FGM in Nigeria.86

[61]     Corruption in the Nigerian government is also reported to be pervasive and widespread, affecting all levels of government including the security forces, with government employees frequently engaging in corrupt practices with impunity.87 Sources note that high levels of corruption, as well as a lack of sufficient funding and training and a culture of impunity and weak oversight, have seriously undermined the effectiveness of the police in responding to violent crimes, including violence against women from intimate partners or former intimate partners.88 A report from the Africa Centre for Strategic Studies describes that Nigerian police commonly demanded bribes in everyday encounters with citizens, and that norms of professionalism and ethics are further weakened in the police through politicized, non-merit based appointments.89

[62]     Therefore, based on the documentary evidence before me, I do not find that claimants would have adequate state protection in Nigeria from either further violence from KO, his family or associates, or from the principal claimant’s family abducting the minor claimants to subject them to FGM, against the principal claimant’s wishes. While the introduction of legislation such as the VAPP that addresses gender-based violence is a positive step by the Nigerian state, the existence of legislation alone is not enough to support a finding of state protection. I find that the that the implementation of the state’s laws with respect to gender-based violence in Nigeria is ineffective, and that therefore the claimants would not have adequate state protection in Nigeria.

Internal Flight Alternative

Motivation of KO ta locate the claimants in Italy and Nigeria

[63]     For the reasons that follow, I find that the claimants do not have a viable internal flight alternative (IFA) in either Italy or Nigeria. KO is a citizen of Nigeria and he has status akin to a permanent resident in Italy. I find that KO has a continuing motivation to locate the claimants if they attempt to relocate in either country, and that based on his past violence towards the claimants, I find that he poses a serious risk to their safety. He is the biological father of the two youngest minor claimants, ages 5 and 9, and the principal claimant previously resided with him as his common-law spouse for seven years. KO’s motivation is also demonstrated through his continued, attempted contacts with the principal claimant90 and with at least one minor claimant since they have been in Canada via social media, as well as the claimants’ testimony and evidence that KO has contacted mutual acquaintances in Nigeria in the recent past and that such contact indicated that KO remained angry at the principal claimant, blamed her for his conviction and arrest in Italy and wanted to find her whereabouts.91

[64]     The principal claimant also testified that KO was hostile and blamed her for his conviction and house arrest when he had an encounter with her sister in Italy. Moreover, since she left Italy, KO sent his brother and men to threaten the principal claimant’s mother in Nigeria to discover the claimants’ contact information, and her mother was physically assaulted.

Italy

Ability of KO to find the claimants in other locations in Italy

[65]     With respect to Italy, the cities of Rome and Naples were raised as possible IFA locations for these claimants; Rome is about 600 km south and Naples is about 800 km south of the city of XXXX, Italy in the northwest of the country where the claimants formerly lived, and where they believe KO to be living at this point. I find that the IFA test fails on the first prong of the test, in that the proposed IFA locations will not be safe for the claimants, and that KO would likely be able to find them should they return to Italy and attempt to relocate.

[66]     The principal claimant and the 18-year-old associated claimant testified about the social media use of the associated claimant and the eldest minor claimant who is 16 years old. The principal claimant noted that she was not well versed with technology and social media, and that she knew her daughters used social media, but she did not know a great deal about their presence online. The associated claimant testified about how she and her sister use various social media applications such as Instagram, SnapChat and TikTok to communicate with their friends and that she sometimes posts photographs of herself with friends or out doing activities. She testified that she estimated that her 16-year-old sister uses social media a fair bit, and that she and her sister do not tell their mother, the principal claimant, about their online posts and social media use. I find that the testimony of principal and associated claimant is credible about the 18- and 16-year- old’s social media use: it did not appear to exaggerate their use of social media, and details came naturally and spontaneously to the claimants.

[67]     While the social media use of teenagers communicating online for social purposes may not involve political opinion or expression which is necessarily core to one’s human rights, I note that it has become a standard and prevalent way of obtaining information, socializing and starting and maintaining friendships and community networks for young people in society today. Generally, I find that requiring adults, and even young adults, to be cautious with social media use and to do so with heightened precautions and privacy settings, so that an agent of persecution would not be able to locate their whereabouts, would be a reasonable expectation with respect to IFA. However, in the particular circumstances of this claim, I note that with two teenagers ages 16 and 18, and a third daughter about to turn 10 years of age, and with the evidence that KO has already connected with his 16-year-old daughter through social media online for a period of time without the principal claimant knowing of it, that the circumstances before me in this claim are such that the principal claimant would not be able to monitor and control all the content that her daughters (the associated claimant, the 16- year-old claimant, and in the near future one of the other minor claimants) post online or in which they are “tagged” by others online.

[68]     I find that a consideration of reasonable precautions must be assessed in light of the claimants’ ages and maturity and the particular factual circumstances in this claim which include that the agent of persecution had contact with one of the minor claimants via social media without the principal claimant’s knowledge. Upon learning of that contact, the principal claimant had the minor claimant block KO, and that KO has changed his username on at least one occasion and attempted to again contact the claimants. For these teenage claimants, and in these particular circumstances, I find that the associated claimant’s and the minor claimants’ social media use is something that the principal claimant will not be able to fully control and that such social media use is one way in which their location could become known to KO. I also find, on a balance of probabilities, that KO has shown that he has the motivation and ability to reach the claimants online via social media and that in the future, he could find the claimants’ whereabouts from online content that is from or connected to the social media profiles and accounts of the associated claimant and the minor claimants.

[69]     Next, I have accepted that the principal claimant has credibly established, on balance of probabilities, her allegation that KO is involved with the Nigerian criminal gang, the Black Axe. The principal claimant acknowledged that KO never admitted his involvement in this group to her, but that she believed him to be involved in this group for several reasons, including that he would boast that he had “boys” he could use to kill anyone in Nigeria, that on one occasion she knew of he had paid someone to bring a car into Nigeria who then demanded more money and he sent his “boys” to Nigeria to deal with the matter. She also testified that KO had told her in Italy if anyone ever offended her to let him know, as he would send his “boys” to their house. The principal claimant testified that KO seemed to have many Nigerian friends and contacts in many different places in Italy and that he travelled frequently to see them.

[70]     I find that the claimants have also submitted reliable country conditions evidence as to the Black Axe criminal group’s presence and reach in Italy. Documentary sources describe that the Black Axe criminal group as one that employs brutal violence and has become trans-national, involved in crimes such as prostitution, international human trafficking and money laundering.92 Sources note that the Black Axe criminal group has a strong presence in Italy93 and is regarded as “quite powerful”94, with “cells throughout Italy”95 and to be operating in “many regions of the country”.96 Nigerian criminal networks in Italy are reported to have as many as 1,500 members across the country, and in some locations, they pay a cut to the Italian mafia to allow them to do business, and in other locations they encroach on Italian mafia territory and business.97 Italian police have attempted to curb the criminal activities of the Black Axe organization with arrests in 2016 of between 15-18 Black Axe leaders, and again in 2021, arresting 30 members.98

[71]     I have found the principal claimant credible in her testimony about why she believes KO is a part of, or affiliated with, this group. She testified that KO appeared to have many friends and connections throughout Italy and his friends were mainly Nigerian. She testified about how he would boast that he had “boys” who could take care of anyone who had offended her and that she saw that he would regularly speak with people she did not herself know from Rome, Turin, and Milan. She testified he used to visit Rome about twice a year and for Naples, he travelled there about once a year, but not always every year.

[72]     I find that KO’s affiliation with the Black Axe group means that he poses a heightened risk to the claimants. This heightened risk comes from his ability to call on others in the gang to do his bidding, including in searching for the claimants and reporting back if they are located in another place in Italy. The claimant testified that she believes that he has this power and ability to call his “boys” to locate her, and cause her and her daughters harm, just as he has called on such thugs to harm her mother in Nigeria in XXXX 2018. I also note the principal claimant’s testimony that her sister in XXXX, Italy saw KO at a bus stop there a few months ago, and he attempted to speak with her sister, but she was able to avoid him. I find on a balance of probabilities that KO continues to reside in XXXX Italy, and that his house arrest sentence is now completed.

[73]     Therefore, based on their particular circumstances, I find that the claimants would not be able to safely relocate within Italy and the IFA test fails on the first prong. I find that it is more likely than not that if the claimants were to move at a new location in Rome or Naples, it would become known to KO, through a combination of factors such as the associated claimant and minor claimants’ social media use, and/or through his connections and ability to use other associates of the Black Axe criminal group to locate the claimants. I find that the serious shortcomings with respect to the Italian state’s response to violence against women and domestic violence specifically, compounded by systemic issues of racism, as set out above, mean that the claimants would not have adequate state protection in the IFA locations if they were located by KO in these locations, or anywhere else in Italy.

Nigeria

[74]     I also find that the claimants do not have a viable IFA in Nigeria. I proposed the large urban centre of Lagos, as a possible IFA location for the claimants. I have set out above my reasons for finding that KO continues to have a strong motivation to locate the claimants, including in Nigeria. The principal claimant testified about KO’s ability to locate her in Lagos, stating that his brother who works as a driver for a rich and well-known traditional chief of Edo state, travels throughout Nigeria with this man and could use such connections to find her. She testified that through either his brother or through his connections with the Black Axe gang, he would be able to learn of their whereabouts in Lagos. She also testified that she and KO had many mutual friends and friends of each of their families who are in Lagos, and that KO knows her eider sister’s address in Lagos having been there many times before. She believes that her sister would resist in telling KO her whereabouts, but that their network of mutual acquaintances would be susceptible to providing information about her whereabouts for payment by KO, who she testified would return to Nigeria and flaunt and spend his Euros.

[75]     The principal claimant acknowledged in testimony that this eider sister in Lagos supports FGM, and that she believes that this sister at least condoned another eider sister who was behind having FGM performed on her eldest daughter, the associated claimant, when they visited Nigeria when the associated claimant was about four years old. Residing with this sister in Lagos would therefore not be something that the principal claimant could do without risking the safety of the minor claimants.

[76]     I have set out, above, my reasons for finding that KO has the continuing motivation to locate and harm the claimants. I have found the principal claimant credible in her testimony about how acquaintances in Nigeria have told her that KO has recently been there, angrily asking about her. I find on a balance of probabilities that he has completed his sentence from 2018 for assaulting the principal claimant and that he is someone with the ability and desire to return to Nigeria, including that he has the financial resources to do so.

[77]     I find that the claimants’ personal circumstances and the particular background of KO also contribute to his ability to locate the claimants in Lagos, and that the claimants would face a serious possibility of persecution in Lagos, as well as throughout Nigeria. These personal circumstances are relevant to both prongs of the IFA test, and I find that in considering them, the first prong of the test fails. First, I note the possibility about KO being able to determine their location via the associated claimant’s and the minor claimants’ social media use, for the reasons I have already set out above.

[78]     Secondly, the principal claimant is a single mother to four female children ranging in age from 5 years old to 18 years old and she would be returning to a new city where she does not have the amount of familiarity and support network as she did in the area where she grew up and where her mother and other siblings (but for the one eider sister in Lagos and another sister in Italy) live, Benin City in Edo state. She testified that the associated claimant and the minor claimants do not speak any local languages, and that the associated claimant and the next eldest, 16-year-old XXXX, speak English and Italian, whereas the younger two minor claimants now only speak English. The principal claimant testified that the associated claimant and minor claimants will be easily identifiable as people of Nigerian descent who have lived abroad for quite some time, as the girls speak English in a particular way and have a European mentality with respect to things such as a personal safety and everyday understandings of customs. The principal claimant noted that her four daughters have only ever visited Nigeria a handful of times (fewer occasions for the younger minor claimants), and that they grew up as Italian Europeans, and now as Canadians since mid-2018. This makes them very unfamiliar with Nigerian ways of life, and this would make them stand out as foreigners and increase their vulnerability. She also testified that she also is less familiar with the Nigeria of today, having moved to Italy in 1997 to work at the age of 21 and resided there since that time, only returning to Nigeria herself for a few visits over the years, although she is more familiar than her daughters are with the country.

[79]     I find that given these personal characteristics and circumstances, that these particular claimants will likely be more visible amongst neighbours and the community in a new location such as Lagos, and that the principal claimant would likely need to call upon one of their mutual friends for help and support in Lagos if they were to attempt to relocate there. In this situation, I find that KO would likely be able to locate them through his family and network of acquaintances in Nigeria or through his associates with the Black Axe criminal group. Sources describe that the Black Axe criminal group has a presence in Lagos99, with one source noting it has a national reach and that “[i]n each community, these groups have leaders that [are] as ruthless as their coordinators at the state and national levels.”100

[80]     I find that while the situation with respect to state protection for women and girls facing violence from a former intimate partner may be better in Lagos than the rest of the country, since in Lagos some sources note that there are improving attitudes amongst the community in not condoning or accepting domestic violence, and that the police in Lagos were better trained to deal with domestic violence and had a more responsive attitude with a dedicated gender desk to receive domestic violence complaints,101 I find that the bulk of the country conditions evidence for Nigeria indicates that adequate state protection would not be available for the claimants in Lagos. The serious problems with police corruption and ineffectiveness in Nigeria mean that KO could use his financial resources and connections in Nigeria to bribe the police anywhere, including Lagos. I find that the weight of the documentary evidence before me does not support a finding that conditions in Lagos with respect to the treatment of women, and with respect to police effectiveness, are different to the extent that it would render state protection adequate in Lagos, given their personal circumstances, and the particular factors involved in their claim. For these reasons, I find that the claimants do not have a viable IFA in Lagos, or anywhere else in Nigeria.

CONCLUSION

[81]     Based on the above analysis, I determine that the claimants are Convention refugees pursuant to section 96 of IRPA. I therefore accept their claims.

(signed)                  Melinda Gayda                 

                                                                                             April 29, 2022                  

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)

Refugee Protection Division Rules, (“RPD Rules”), SOR/2012-256, Rule 55

3 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(l)(h) of the Immigration and Refugee Protection Act.

4 Exhibit 6, pages 46-52

5 Exhibit 1, Package of information from the CBSA on referral of refugee claim.

6 Exhibit 3, National Documentation Package for Italy (September 29, 2021), Item 2.1, Italy- Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, page 14.

7 Exhibit 7, For Italy’s Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, page 11.

8 Exhibit 7, Ibid, page 11.

9 Exhibit 14, Italy draws up plan to fight violence against women, Wanted in Rome, November 24, 2021, pages 323- 324;- Exhibit 12, Italy Survey reveals shocking attitudes towards violence against women, Wanted in Rome, November 25, 2021, page 303; Domestic violence against women escalating in Italy, independent Australia, June 3, 2021, Francesco Bertolucci, page 308.

10 Exhibit 4, National Documentation Package for Nigeria (November 30, 2021 version) Item 5.3: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019). Immigration and Refugee Board of Canada. 14 November 2019. NGA106360.E.

11 Exhibit 4, Item 2.1, Nigeria: Country Reports on Human Rights Practices for 2020, United States Department of State, 30 March 2021, page 34.

12 Exhibit 4, Item 5.3, pages 5-7.

13 Exhibits 8 and 9, What’s App screenshot of messages and transcribed voicemail from friend in Nigeria; Exhibit 15, transcribed voicemail from other mutual acquaintance in Nigeria.

14 Exhibit 4, Item 7.24: The Black Axe confraternity, also known as the Neo-Black Movement of Africa, including their rituals, oaths of secrecy, and use of symbols or particular signs; whether they use force to recruit individuals (2009-November 2012), Immigration and Refugee Board of Canada, 3 December 2012, NGA104208.E, page 2.

15 Exhibit 7, The Black Axe, Harper’s Magazine, September 1, 2019, pages 59-65; Mississauga man gets 15-year sentence for fraud scheme involving Black Axe organization, The Globe and Mail, October 31, 2019, page 68; Shadowy Black Axe group leaves trail of tattered lives, The Globe and Mail, November 12, 2015, page 69-74; Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018; pages 77-79.

16 Exhibit 12, The ultra-violent cut that became a global mafia, The BBC World Service, December 13, 2021, pages 264-269; Black-Axe: Leaked documents shine spotlight on secretive Nigerian gang, The BBC World Service, December 13, 2021, pages 270-271

17 Exhibit 4, Item 5.39, Update to NGA200625 on prevalence of female genital mutilation/cutting (FGM/C), including ethnic groups in which FGM/C is prevalent; ability of parents to refuse FGM/C for their daughter; consequences for refusal; state protection and support …, Immigration and Refugee Board of Canada, 26 October 2021, NGA200790.E;, Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM), Version 2.0. United Kingdom Home Office, August 2019, sections 4.8.4.

18 Exhibit 3, Item 5.39, pages 4-5.

19 Exhibit 4, Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM), Version

2.0. United Kingdom Home Office, August 2019, sections 4.8.4.

20 Exhibit 4, Item 5.13, RIRNGAJ04392.E, 29 April 2013 and Item 10.8, RIR NGA105659.E, 14 November 2016,

page 2

21 Exhibit 2, BOC Form, Question 5 Family Members.

22 Exhibit 6, page 53.

23 Exhibit 4, Item 5.39, RIR NGA200790.E, October 26, 2021 and Item 5.22, Country Profile: FGM in Nigeria, 28 Too Many, October 2016 [listed as November 2017 in the NDP Index]

24 Exhibit 4, Item 5.39, pages 13-14.

25 Exhibit 4, Item 5.39, RI R NGA200790. E, October 26, 2021, page 8.

26 Exhibit 4, Item 5.39, page 12

27 Exhibit 4, Item 5.39, page 12

28 Exhibit 4, Item 5.39, page 13

29 Exhibit 4, Item 5.39, page 11

30 Exhibit 4, Item 5.39, page 11

31 Exhibit 6, pages 12-17, Judgement of the Italian Court, XXXX 2018; and page 9, Public prosecutor’s documents note the sentence as “XXXX XXXX XXXX” and that the final sentence of judgment was passed on XXXX, 2017. The Judgement in the original Italian notes at page 14 the date of “XXXX 2017”, and “XXXX XXXX XXXX XXXX XXXX XXXX”, the “XXXX XXXX XXXX XXXX XXXX”.

32 Exhibit 6, page 5-11- Italian Public Prosecution documents, Measures for Enforcement of Concurrent Penalties, January 26, 2018

33 Exhibit 6, page 10.

34 Exhibit 2, para. 27.

35 Exhibit 1, Documents provided by principal claimant at the airport to the CBSA.

36 Exhibit 3, NDP for Italy, Item 13.3, Report of mission to Italy on racial discrimination, with a focus on incitement to racial hatred and discrimination, Office of the United Nations High Commissioner for Human Rights, 1 February 2019, page 9 (para 34)

37 Exhibit 3, Ibid, pages 12-14

38 Exhibit 12, Italy: Racist and xenophobic crimes by type 2020, Statista, November 16, 2021, page 307

39 Exhibit 12, Black Italian actress describes racist messages on live TV, ABC News, February 3, 2022, page 299, How Populist Scaremongering Unleashed a Wave of Anti-Black Racism in Italy, Vice, May 29, 2021, pages 311- 312; Exhibit 14, Italy on edge as neo-fascists stir violence, EU Observer, October 15, 2021, pages 392-393; Italian police accused of racism over viral video of arrests in Milan, Euro News, June 30, 2021, pages 396-397, Racial profiling in Italy: A debate not yet begun, Institute of Race Relations, May 19, 2021, pages 398-399; Exhibit 3, Item 2.4, Italy. World Report 2021: Events of 2020, Human Rights Watch, January 2021.

40 Exhibit 14, Verona fans banned for racist chants after appalling banner, Toronto Star, March 15, 2022, page 391,

41 Exhibit 12, More than half of Italians in poll say racist acts are justifiable, The Guardian, November 12, 2019, page 319.

42 Exhibit 3, Item 13.2, Report of the Working Group of Experts on People of African Descent on its mission to Italy, United Nations Human Right Council, 12 August 2016, A/HRC/33/61/Add. l, page 8 (para. 36)

43 Ibid.

44 Ibid., page 10 (para. 50).

45 Ibid., page 8 (para. 39).

46 Ibid.

47 Exhibit 3, Item 5.3: GREV/O Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/lnf (2019)18, page 9.

48 Exhibit 3, Item 5.3, Ibid., page 6; also Exhibit 14, excerpts of same report, pages 332-349; Item 2.1, Italy­ Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, pages 13- 14; Item 5.1, Italy. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, 7 December 2018, pages 4-5

49 Exhibit 3, Item 5.3, GREVIO Baseline Evaluation Report Italy, pages 6, 11-15, 22-25.

50 Exhibit 3, Item 2.1, Italy- Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, page 14.

51 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, pages 11-12.

52 Exhibit 3, Item 5.1, Italy. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, 7 December 2018, page 5.

53 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, pages 11-12.

54 Exhibit 3, Item 5.3: GREVIO Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/Inf(2019)18; also Exhibit 14, excerpts of same report, pages 332-349.

55 Exhibit 7, News Analysis: Italy’s new domestic violence law fills legislative gaps, without cutting problem at its roots, Xinhuanet, July 20, 2019, Alessandra Cardone, page 2; Exhibit 3, Item 5.3, pages 73-75.

56 Exhibit 3, Item 5.3, page 73, para. 235.

57 Exhibit 3, Item 5.3, page 73, para. 235.

58 Exhibit 3, Item 5.3, page 73 para. 237

59 Exhibit 3, Item 5.3, page 73, para. 237.

60 Exhibit 3, Item 5.3, page 73, para. 237.

61 Exhibit 3, Item 5.3, page 71, para. 228.

62 Exhibit 3, Item 5.3, page 71, para. 228.

63 Exhibit 3, Item 5.3, page 71, para. 228.

64 Exhibit 7, Talpis v. Italy 41237114, European Court of Human Rights, Judgment: March 2, 2017, page 16.

65 Exhibit 12, Enduring a brutal assault by a taxi driver, Canadian woman becomes the face of violence against women in Italy, The Toronto Star, January 18, 2022, Rosie DiManno, pages 301-302.

66 Exhibit 7, Stop using “hurt feelings” to justify men who murder women, Italy’s Prime Minister tells judges,

Independent, March 15, 2019, page 3;

67 Exhibit 7, Ibid., page 3.

68 Exhibit 7, Italian women ‘s groups fear law change will hurt domestic violence victims, The Guardian, September 19, 2018, Angela Guiffride, page 10

69 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, page 12.

70 Exhibit 14, Italian protests over men cleared of rape because woman ‘too masculine’, The Guardian, March 11, 2019, Anglea Guiffride, page 352.

71 Exhibit 12, Italy Survey reveals shocking attitudes towards violence against women, Wanted in Rome, November 25, 2021, page 303; Domestic violence against women escalating in Italy, Independent Australia, June 3, 2021, Francesco Bertolucci, page 308.

72 Ibid., page 12

73 Exhibit 3, Item 5.3: GREV/O Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/lnf (2019)18, paras. 145-148.

74 Exhibit 4, Item 5.3, Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019), Immigration and Refugee Board of Canada., 14 November 2019, NGA 106360.E, p. 13.

75 Exhibit 4, Item 2.1 page 34.

76 Exhibit 4, Item 5.3, pages 12-13.

77 Ibid., pages 14-15.

78 Ibid., p. 8.

79 Ibid., pages 7-8.

80 Ibid., p. 9.

81 Exhibit 4, Item 5.22, Country Profile: FGM in Nigeria, 28 Too Many, October 2016 [listed as November 2017 in the NDP Index], pages 4, 8 and Appendix II; Item 5.3, pp. 11-12.

82 Exhibit 4, Item 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018; Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM)- Version 2.0, United Kingdom Home Office, August 2019.

83 Exhibit 4, Item 5.16, page 37.

84 Exhibit 4, Item 10.8, Availability and effectiveness of state and police response in bath urban and rural areas of southern Nigeria, for people who refuse to participate in ritual practices (2014-October 2016), Immigration and Refugee Board of Canada, 14 November 2016, NGA105659.E, pages 3-4.

85 Exhibit 4, Item 5.16, page 35.

86 Exhibit 4, Item 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018, pages 6 and 8.

87 Exhibit 4, Item 2.1, pages 30-31.

88 Exhibit 4, Item 5.3., pp. 15-16; Item 10.2, Governance, Accountability, and Security in Nigeria, Africa Center for Strategic Studies, Oluwakemi Okenyodo, 21 June 2016.

89 Exhibit 4, Item 10.2

90 Exhibit 6, Screenshots of KO’s messages and attempts to call the principal claimant, under different names and the principal claimant’s blocking of KO on social media and What’s App, pages 86-94.

91 Exhibit 8, Screenshot of friend’s messages about KO’s contact with him; Exhibit 9, Transcribed Voicemail from mutual acquaintance in Nigeria, page 147 [Audio of this voicemail played at the first sitting of this claim]; Exhibit 18, Transcribed Voicemail from other acquaintance in Nigeria, page 108.

92 Exhibit 4, Item 7.2, Nigeria: COI Compilation on Human Trafficking, Austrian Red Cross, Austrian Centre for

Country of Origin and Asylum Research and Documentation, December 20 I 7; Exhibit 7, The Black Axe, Harper’s Magazine, September 1, 2019, pages 59-65; Mississauga man gets 15-year sentence for fraud scheme involving Black Axe organization, The Globe and Mail, October 31, 20 I 9, page 68; Shadowy Black Axe group leaves trail of tattered lives, The Globe and Mail, November 12, 2015, page 69-74; Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018; pages 77-79; Exhibit I 2, The ultra-violent cut that became a global mafia, The BBC World Service, December 13, 2021, pages 264-269; Black-Axe: Leaked documents shine spotlight on secretive Nigerian gang, The BBC World Service, December 13, 2021, pages 270-271.

93 Exhibit 7, Nigerian cults protected by government high level members: Gangsters recruited by candidates to manipulate voting, il Gatto Quotidiano, Mario Portanova, November 17, 2018, page 67.

94 Exhibit 7, Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018, page 78.

95 Exhibit 4, Item 7.2, Nigeria: COI Compilation on Human Trafficking, Austrian Red Cross, Austrian Centre for Country of Origin and Asylum Research and Documentation, December 2017, page 5.

96 Exhibit 12, Italian police arrest alleged Nigerian Black Axe mafia members over trafficking, The Guardian, January 19, 2022, Lorenzo Tondo, page 300.

97 Exhibit 7, Ibid., page 78.

98 Exhibit 7, Italian caps try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018, page 78; Exhibit I 2, Italian police arrest alleged Nigerian Black Axe mafia members over trafficking, The Guardian, January I 9, 2022, Lorenzo Tondo, page 300.

99 Exhibit 4, Item 7.24, pages 6-7.

100 Exhibit 7, Nigerian cults protected by government high level members: Gangsters recruited by candidates to manipulate voting, il Gatto Quotidiano, Mario Portanova, November 17, 2018, page 66.

101 Exhibit 4, Item 5.3, pages 5-6, 15.

Categories
All Countries Bahamas

2021 RLLR 7

Citation: 2021 RLLR 7
Tribunal: Refugee Protection Division
Date of Decision: June 10, 2021
Panel: Kristy Sim
Counsel for the Claimant(s): Johnson Babalola
Country: Bahamas
RPD Number: VC1-03028
Associated RPD Number(s): VC1-03029
ATIP Number: A-2022-00210
ATIP Pages: 000214-000220

DECISION

This transcript constitutes the member’s written reasons for decision.

[1]       MEMBER: This the recording of a reserved decision of the Refugee Protection Division in the claim of XXXX XXXX, the principal claimant, and XXXX XXXX XXXX, the minor claimant, file numbers VCl-03028 and VCl-03029. In assessing this claim, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution and the Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (or the SOGIE Guideline).

[2]       The principal claimant provided a letter of consent from the minor claimant’s father as well as a copy of the minor claimant’s birth certificate, Exhibit 6. The claimants are citizens of the Bahamas are claiming refugee protection pursuant to Section 96 and Subsection 97 (1) of the Immigration and Refugee Protection Act. Their allegations are set out in full in the Basis of Claim forms at Exhibit 2.1, 2.2, and amended BOC narrative in Exhibit 10.

[3]       In summary, the principal claimant is a XXXX XXXX year-old woman who grew up in a Christian family. While she was in school, she found women beautiful but suppressed these feelings out of fear as her family, her religious community, and Bahamian culture is deeply homophobic. She found high school difficult due to her struggles over her own sexuality and her fear of being rejected. The principal claimant came to realize that she was bisexual and had her first romantic relationship with a woman in XXXX 2014. They met at work and kept their relationship secret. ln 2015, she entered a romantic relationship with a man with whom she had a child, the minor claimant, in XXXX XXXX. This relationship ended shortly thereafter. In XXXX 2016, when the claimant started her job at the XXXX XXXX she met XXXX XXXX (ph) whom I will refer to as her ex-partner throughout. They soon began a relationship; she did not discuss her bisexuality with him as she feared how he would react. The principal claimant said she was very much in love and the two of them moved in together along with the minor claimant over whom the principal claimant had full custody.

[4]       The principal claimant eventually learned that her ex-partner was having a relationship with another woman; however, she felt unable to leave him. They eventually worked out their differences and got engaged in XXXX 2017, although she describes this relationship as emotionally abusive and him as obsessive. The principal claimant got a second job in the XXXXof a XXXX where she met XXXX XXXX in XXXX 2018. They quickly formed a close friendship and eventually it became romantic. XXXX XXXX XXXX identifies as a lesbian. The two women professed their love for each other in XXXX 2018 but kept the relationship a secret. A few friends of theirs suspected them of being romantically involved, however, they were careful to socialize in a group usually after work and with other co-workers. The principal claimant is not aware of any safe spaces for members of the lesbian, gay, bisexual, transgender, and intersex (or LGBTI) community.

[5]       The claimant went to Florida in XXXX 2019 with XXXX XXXX XXXX and some other friends. They were secretly intimate with each other on this trip but were not open about it to their friends. The principal claimant’s relationship with her ex-partner was deteriorating primarily due to her desire to be with XXXX XXXX XXXX. In XXXX 2019, her ex-partner went through her phone and saw messages between her and XXXX XXXX XXXX. He asked who it was, and the principal claimant brushed it off and responded that it was a misunderstanding. However, they argued, and the principal claimant left the home to clear her head and also to see XXXX XXXX XXXX. When the principal claimant returned late that evening, her ex-partner confronted her, and she confessed to being in love with XXXX XXXX XXXX. He was enraged and violently assaulted her. The minor claimant witnessed much of the violence including his mother being choked and her ex-partner saying that he would kill her. The principal claimant eventually grabbed a knife from the kitchen to defend herself, but her ex-partner knocked out of her hands and slapped her until she fell to the ground, then he walked away. She ran out of the home with her son and had a friend take her son to his grandmother’s house and her to the police station. The police were nonchalant and told her to first get treatment at the hospital. She went to the hospital and received stitches to her face. She returned to the police station to report the assault the police did not take a report but offered to take her back to the house to get her clothes which she did. There was no discussion of a restraining order or a protection order and the police told the principal claimant to find somewhere to stay that night.

[6]       The principal claimant followed up with the police by telephone, in person, and with emails as she intended to follow through on the assault charges against her ex-partner. However, nothing happened, and the police did not take the matter seriously. The principal claimant immediately moved into her mother’s home, stopped working at the XXXX XXXX and blocked all contact with her ex-partner. He stalked her wanting to know why she was not talking to him and demanding that she return to him and their relationship. He also followed her and XXXX XXXX XXXX as they left work one night until the principal claimant drove into the parking lot of the police station at which point, he left. He repeatedly tried to contact her on Facebook using different identities and demanding that she return to him. The principal claimant took her son to Disneyland with some friends in XXXX 2019 for a short trip. Her ex­ partner intercepted her as she attempted to board the flight as he had access to the XXXX XXXX and to this area of the airport through XXXX XXXX. He grabbed her arm and told her not to run as he would find her and make things bad for her if she continued to avoid him.

[7]       The night the principal claimant returned from Florida her ex-partner went to her mother’s house screaming at her to return to him and insulting XXXX XXXX XXXX, he also vandalized her car. The principal claimant called the police, but they did not come. XXXX XXXX XXXX convinced the principal claimant to go to the police station several days later, on XXXX XXXX XXXX 2019, to report these additional incidents. In explaining what her ex-partner had said and done, the police referred to the principal claimant and XXXX XXXX XXXX in a derogatory way, saying that they did not want to encourage this type of relationship. The principal claimant felt unsafe in Nassau and believed that her ex­ partner would be able to find her if she moved given how small the Bahamas are and his broad community connections through the XXXX XXXX. She also did not want to have to hide and deny her sexuality any longer.

[8]       Feeling like she had no option but to leave the Bahamas, she purchased a flight for her and her son and departed the Bahamas a few days later, on XXXX XXXX XXXX 2019. Her ex-partner accessed her private accounts and sent personal and explicit photographs and videos of her with XXXX XXXX XXXX and a previous same-sex partner to friends and family members including her parents. The principal claimant’s family members reacted with anger and told her that she was a disgrace. She is still estranged from her father and her siblings as a result of their learning about her sexual orientation. While her mother struggled with accepting the principal claimant, they eventually were able to re-establish a relationship. The principal claimant’ s sexual orientation was disseminated more broadly throughout the community as well. She fears that if she returns to the Bahamas she would be assaulted or killed by her ex-partner.

[9]       The principal claimant also fears mistreatment by members of the public on account of her sexual orientation. She fears that the minor claimant will be harmed by her ex-partner either directly or in witnessing her being abused and harmed by him and that her son will also be mistreated due to her sexual orientation. I find that the claimants are Convention refugees as they have a well-founded fear of persecution in the Bahamas. My reasons are as follows.

Identity

[10]     I find that the claimants’ identity as Bahamian nationals is established on a balance of probabilities by the principal claimant’s testimony and a copy of each of their passports in evidence at Exhibit 1.

Credibility

[11]     With respect to the claimant’s sexual orientation, she provided testimony that was candid and direct. She testified in a spontaneous and natural fashion about her sexuality and her same-sex relationships. She explained in detail how she met previous girlfriends, how they were able to be together, and why their relationships ended. I find that this testimony was genuine and consistent. The claimant provided corroborative documentary evidence of her sexual orientation including a letter from XXXX XXXX XXXX attesting to their relationship and how they are currently taking a break but remain in love. As well as messages exchanged between her and XXXX XXXX XXXX, photographs, and videos of the principal claimant and XXXX XXXX XXXX as well the principal claimant with a previous same-sex partner in the Bahamas. Letters of support from close friends of the principal claimant about how and when they learned about her sexual orientation. Messages exchanged between the principal claimant and women she was chatting with within Canada and a screen capture of the principal claimant’s registration with The 519 organization in Toronto and those are found in Exhibits 5, 7, 8, 9, and 10. The principal claimant also provided numerous articles about serious issues faced by the LGBTI community in the Bahamas and those are found at Exhibits 1 and 9.

[12]     With respect to the domestic abuse aspect of the claim, the principal claimant provided a detailed account of her ex-partner’s attack in her BOC narrative as well as in her oral testimony. The principal claimant explained what the minor claimant experienced and witnessed during this attack. She also testified about what she believes would happen if she were to relocate to another area in the Bahamas. The principal claimant’s response to my questions were emotional, genuine, and credible. The principal claimant also provided documentary evidence which corroborated her allegations of abuse including: a police report from XXXX XXXX XXXX 2019; an email sent by her to the police reiterating that she had been in several times with no progress and stating that she wants the matter to proceed, which was dated XXXX XXXX XXXX 2019; a video showing the damage to the principal claimant’s car by her ex-partner on XXXX XXXX XXXX 2019; a letter of support from a friend the night of her attack about having received several missed calls from the principal claimant; letters of support from friends and co-workers saying that the principal claimant never returned to work at the XXXX after the assault and that her ex­ partner was angry about her wanting to be with XXXX XXXX XXXX; messages in which the principal claimant was trying and locate the hospital records from the night of her assault; and photographs and videos of the principal claimant and her ex-partner; as well as a referral for XXXX treatment and support, and a XXXX report detailing the XXXX effects of domestic violence, Exhibits 5,7, and 9.

[13]     There were no material inconsistencies or contradictions within the principal claimant’ s evidence that caused me to question her credibility. I find her testimony was credible and was supported by corroborative documentary evidence as such I accept that the principal claimant is bisexual and that she has experienced domestic violence as a result of her relationship with XXXX XXXX XXXX and that her ex-partner stopped, threatened, and harassed her following his assaulting her in XXXX 2019.

Well-Founded Fear of Persecution

[14]     The principal claimant fears persecution in the Bahamas on account of her identity as a bisexual woman. The principal claimant also fears persecution from her abusive ex-partner. According to the Gender and SOGIE Guidelines, bisexual women and women facing domestic violence both constitute a particular social group. As such, I find that her claim for protection has a Nexus to the refugee convention ground of membership in a particular social group. The principal claimant fears the minor claimant would face persecution in the Bahamas as the son of a bisexual woman. The sexual orientation of a family member in an overtly homophobic country can result in adverse consequences and here I refer to the Federal Court case Corneille which is found at 2014 FC 901. I also find that if the minor claimant returns to the Bahamas, he would be at risk of witnessing his mother’s ex-partner subjecting her to further abuse or even murder. There is a Federal Court authority in the Modeste case at 2013 FC 1262 that children witnessing the abuse of a parent constitutes persecution in itself.

[15]     I find that the minor claimant’s fear of persecution relates to the Convention ground of membership in a particular social group namely children of bisexual women in an overtly homophobic country and children subjected to domestic violence. The objective evidence in the NDP indicates that sexual minorities including bisexual women face serious mistreatment in the Bahamas. Furthermore, I find that the principal claimant’s identity as a bisexual woman intersects with the risks that she faces from her ex­ partner in a way that elevates her overall risk of persecution. While same-sex sexual activity is not criminalized in the Bahamas, individuals who identify as LGBTI face widespread stigmatization and discrimination in the country and l refer here to NDP Items 2.1, 2.3, and 6.3. According to NDP Item 6.1, there is strong anti-gay attitudes in the Bahamas as “homophobia is permeated through cultural attitudes and is expressed in religion, music, and other expressions”. The same source notes that due to the strong stigma against homosexuality. Sexual minorities generally hide their sexual orientation out of fear of ostracism, exclusion, ridicule, and violence.

[16]     The claimants provided recent media reports about homophobia in the Bahamas even against tourists and that’s an Exhibit 5. Discrimination based on sexuality is not prohibited by law, so LGBTI individuals have no mechanism to seek redress from marginalization, systematic discrimination in the areas of employment and housing and that’s NDP 2.3, 6.1, and 6.2. Sexual minorities face discrimination without redress and cannot live openly without facing various forms of mistreatment including violence and I find this amounts to persecution. Moreover, the principal claimant faces an additional risk of persecution from her ex-partner who attacked and threatened to kill after learning that she’s bisexual and in love with a woman. He was infuriated, he continued to stalk and threaten her, and he refused to accept that she wanted to leave him for a woman. I find on a balance of probabilities that the principal claimant’s ex­ partner felt rejected and threatened by her sexuality and that this elevates the risk he poses to her and by extension the minor claimant who is at risk of witnessing the principal claimant being further assaulted or even killed by her partner.

State Protection

[17]     In all refugee claims, the state is presumed to be capable of protecting its citizens unless a claimant presents clear and convincing evidence to the contrary. In this case, I find that this presumption has been rebutted and that the protection would not be forthcoming. NDP Item 6.1 notes that LGBTI people experience difficulties if they turn to the police for protection that they faced smirking, ridicule, and insults if they are open about their sexual orientation which is certainly reflective of the experience of the principal claimant when she went to the police with XXXX XXXX XXXX. This same source reports that “if an LGBTI reports an incident of violence openly to the police, the police will come down against the victim and will say the person got what they deserved.” The US Department of State Report found at NDP Item 2.1 also indicates there is inadequate protection by law enforcement authorities for members of the LGBTI community. Based on this evidence I find that the principal claimant would not have adequate state protection from persecution due to her sexual orientation. I also find that the claimants would not have adequate state protection from the principal claimant’s ex-partner. While there is anti-domestic violence legislation in the Bahamas and some support for women fleeing violence, women’s rights groups there report a hesitancy from law enforcement to intervene in domestic disputes and that’s NDP Items 2.1 and 5.8. In the present case, the principal claimant reported her abuser to the police several times and attempted to follow up and move forward with assault charges. The authorities helped her to return to her home to get her personal effects the night of the attack but did not issue a protective or restraining order or pursued charges against her ex-partner. While she attended the station with XXXX XXXX XXXX, the nonchalance of the police turned to derision. In light of the circumstances, I find that state protection was inadequate. As the principal claimant lacks state protection from her abusive ex-partner, I find that the minor claimant also lacks state protection from the harm she fears namely bearing witness to violence against his mother.

Internal Flight Alternative

[18]     Finally, I’ve considered whether an internal flight alternative available to the claimants. At the start of the hearing, I proposed San Salvador. The first prong of this assessment is to determine whether on a balance of probabilities there’s a risk of persecution, a risk to life, cruel or unusual treatment or punishment, or danger of torture in the proposed internal flight alternative location. According to the objective evidence, the situation for LGBTI individuals is consistent throughout the Bahamas as a result I find there is no location within the Bahamas where the principal claimant would not face a serious possibility of persecution due to her sexual orientation. I also find that the principal claimant’s ex-partner is likely motivated to pursue her throughout the Bahamas. Given the small size of the country, his ability to monitor her movements through his employment at the XXXX XXXX and his strong connections within the community through his membership in the XXXX XXXX XXXX. I find that the ex-partner would also likely have the ability to locate the principal claimant anywhere in the country. As the minor claimant lives with the principal claimant solely, I find that he would also face a possibility of witnessing violence against his mother which I have found amounts to persecution. For these reasons, I do find the claimants have a viable internal flight alternative within the Bahamas.

CONCLUSION

[19]     Having considered the evidence, I find the claimants are Convention refugees under Section 96 of the Act and I accept their claims for protection. This matter is concluded.

(signed)  Kirsty Sim

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2021 RLLR 6

Citation: 2021 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: June 28, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-01443
Associated RPD Number(s): VC1-01444, VC1-01445, VC1-01446, VC1-01447
ATIP Number: A-2022-00210
ATIP Pages: 000202-000213

REASONS FOR DECISION

INTRODUCTION

[1]       This These are the reasons for the decision in the claims of XXXX XXXX XXXX (the “principal claimant”), her spouse XXXX XXXX XXXX (the “associate claimant”), their daughters XXXX XXXX XXXXand XXXX XXXX XXXX (the “minor female claimants”), and their son XXXX XXXX XXXX (the “minor male claimant”), as citizens of Nigeria, who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       XXXX XXXX XXXX was appointed as designated representative for her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX.

[3]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues.

ALLEGATIONS

[4]       The following is a brief synopsis of the allegations out forth by the principal claimant in her Basis of Claim (BOC) form.ii

[5]       The principal claimant fears persecution at the hands of her in-laws in Nigeria for her refusal to have the minor claimants undergo Female Genital Mutilation (FGM).

[6]       The principal claimant is a XXXX XXXXyear-old Yoruba female who was a victim of FGM when she was young. She now fears that her daughters will undergo the same trauma as her father-in-law is adamant on carrying out the procedure on the female minor claimants.

[7]       The principal claimant also fears for her life at the hands of persons convicted of crimes by the courts in Nigeria as she is a bailiff and executes the court verdicts.

[8]       The principal claimant and the minor claimants travelled to Canada on XXXX XXXX XXXX 2018. The associate claimant stayed behind in Nigeria. His father attempted to have him kidnapped, following which he quit his job and escaped to Canada on XXXX XXXX XXXX 2018.

[9]       The claimants filed for refugee protection, fearing for their lives in Nigeria.

DETERMINATIONS

[10]     I find that the principal and the minor female claimants are Convention refugees as they have established a serious possibility of persecution based on their membership in a particular social group upon return to their country. My reasons are as follows.

[11]     I also find that the associate claimant and the minor male claimant have satisfied the burden of establishing, on a balance of probabilities, that they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. My reasons are as follows.

ANALYSIS

Identity

[12]     I find that the claimants’ identities as nationals of Nigeria are established, on a balance of probabilities, based on certified copies of their Nigerian passports on file.iii

Nexus

[13]     For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.

[14]     In this case, the evidence before me is that the principal claimant fears persecution in Nigeria due to her refusal to subject the minor claimants to FGM. I find that she has established a nexus to a Convention ground – membership in a particular social group: namely a woman fearing gender-based persecution. I also find that the minor female claimants have established a nexus to a Convention ground – membership in a particular social group: namely children fearing gender­ based persecution. Accordingly, I have assessed their claims under section 96 of IRPA and not under section 97.

[15]     Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons (Kang, 2005 FC 1128 at para. 10). The associate claimant and the minor male claimant fear persecution in Nigeria due to the threat of kidnapping by the associate claimant’s father and his extended family due to the associate claimant’s refusal to subject the minor female claimants to FGM.

[16]     As victims of crime who fear future criminality which is not connected to one of the five Convention grounds, I find that the associate claimant and the minor male claimant have not established a nexus to one of the Convention grounds. Their claims will therefore be assessed under section 97(1) of the Act, and not section 96.

Credibility

[17]     When a claimant swears to the truthfulness of certain facts there is a presumption that what he or she is saying is true unless there are reasons to doubt it. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities.

[18]     In this case the principal claimant and the associate claimant testified in a straightforward manner and, there were no relevant inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me which have not been satisfactorily explained.

[19]     I canvassed the principal claimant why she did not seek protection earlier, since the threats of FGM by her father-in-law had commenced at the time her eldest daughter was born in XXXX. She explained that at that time they did not take the threats seriously and were able to talk the in­ laws into postponing the consideration of subjecting their eldest daughter to female circumcision. There were discussions on this issue, but the threats never escalated. Following the birth of their second daughter in XXXX, there was more serious talk of revisiting this issue of female circumcision. It is only when the father-in-law and his relatives began demanding that the female minor claimants will have to undergo FGM, did they start to realize the gravity of the matter. Then, when her father-in-law tried to get the associate claimant kidnapped for his refusal to agree with him on the issue of FGM, did they realize that their lives were in danger. I accept the principal claimant’ s explanation for the delay in seeking protection reasonable, as initially, it was just simple talk on the issue of FGM for the eldest minor female claimant. However, with the birth of their younger daughter in XXXX, the situation deteriorated, and the threats worsened with the escalation of those threats to physical harm for the principal claimant, the associate claimant, and the minor male claimant for refusing to honour the family tradition of subjecting the minor female claimants to FGM. I do not draw any negative inference on the issue of delay in seeking refugee protection.

[20]     Apart from their oral testimonies, the principal claimant and the associate claimant have provided corroborating documentary evidence to support their and the minor claimants’ claims. These documents form part of Exhibits 5, 6, 8 and 9. I have no reason to doubt the genuineness of these documents and accept them as genuine. The evidence contains the following:

  • Marriage certificate confirming the principal claimant and the associate claimant are married to each other, along with birth certificates of minor claimants confirming they are their children.
  • Supporting letter from pastor of a church in Nigeria confirming the claimants were facing threats of persecution at the hands of the associate claimant’s father and his extended family on the issue of FGM for the minor female claimants.
  • Medical note from Nigeria showing that the principal claimant was treated for XXXX XXXX XXXX XXXXand XXXX.
  • XXXX assessment report from Canada confirming that the principal claimant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX due to the events she faced in Nigeria.

[21]     Based on the principal claimant’s and the associate claimant’s straightforward testimony and the corroborating documentary evidence discussed above, I find them to be credible witnesses and accept their allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that:

  • The associate claimant’s father and his extended family want the minor female claimants to be subjected to FGM.
  • The principal claimant and the associate claimant were issued threats of harm by the associate claimant’s father.
  • There was an attempt to kidnap the associate claimant at the behest of his father for refusal to have the minor female claimants undergo FGM.
  • The associate claimant’s father has threatened to harm all the claimants for refusing to honour the family practice and tradition of FGM.
  • The principal claimant and the minor female claimants have a subjective fear of returning to Nigeria.

Well-Founded Fear of Persecution and Risk of Harm

[22]     To establish their status as Convention refugees, the principal and the minor female claimants had to show that there was a serious possibility that they would be persecuted if removed to Nigeria.

[23]     I find that the evidence presented in support of their allegations does establish a serious possibility of persecution for the claimants. My reasons are as follows.

[24]     The principal claimant has been threatened with dire consequences by her father-in-law for refusing to subject the minor female claimants to undergo FGM as per the family’s traditions and the Yoruba culture.

[25]     The claimants’ subjective fear is supported by objective evidence.

[26]     The country condition documents for Nigeria corroborate the facts alleged by the principal claimant and the objective basis for her and the minor claimants’ claims. FGM is widespread in Nigeria and the procedure has been performed on 20 million women and girls in the country, with some estimates indicating that 24.8% of all women between 15 and 49 have undergone FGM.iv

[27]     The claimants belong to the Yoruba culture and ethnicity. The objective evidence states that FGM is much more common amongst southern ethnic groups, and studies indicate that between 52-90% of Yoruba women and girls have been subjected to FGM.v

[28]     Although Nigeria has passed legislation to criminalize the FGM as well as the procurement, arrangement, and/or assistance of acts of FGM, the prevalence of this social evil remains concerning and there are no reported instances of any prosecutions brought under federal legislation since its introduction in 2015 in Nigeria.vi

[29]     I also reference the Response to Information Request (RIR) on whether parents can refuse subjecting their children to FGM and the repercussions for doing so.vii The RIR states that the decision to subject a girl to FGM is generally up to her parents and that parents who refuse to let their daughters be mutilated do not face any significant consequences. The principal claimant testified that her in-laws are rooted in rural Yoruba culture and traditions and have subject all their females to FGM. She stated that her father-in-law is adamant that until the minor female claimants are subject to FGM, calamities will befall on the family. She testified that the father-in-law has threatened that he will forcibly take away the minor claimants and do what needs to be done. I agree with the principal claimant’s argument that she and the minor claimants face a serious possibility of persecution as the RIR also states that the decision to refuse FGM without repercussions is dependent on whether the families are urbanites or rural folks, seeped in the traditions and culture. I accept the principal claimant’s assertion that her in-laws, even though urbanites, uphold the rural and family traditions such as FGM.

[30]     Therefore, based on all the evidence before me, I find that the principal claimant and the minor female claimants will face a serious possibility of persecution if forced to return to Nigeria, especially since her father-in-law is motivated and has threatened the principal claimant of dire consequences and of forcibly taking away the minor female claimants to subject them to FGM. I find that their fears are indeed well-founded.

[31]     I now turn my attention to the claims of the associate claimant and the minor male claimant.

[32]     I find, on a balance of probabilities, that both of them face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

[33]     The associate claimant’s father threatened him and his family of harm of he did not agree to uphold the family and Yoruba tradition of subjecting the minor female claimants to FGM. After the principal claimant and the minor claimants left Nigeria, the associate claimant’s father attempted to have him kidnapped, even though the associate claimant had changed his place of residence and moved to another state without informing anyone about it. This is indicative of the agent of persecution’ s motivation and ability to reach the claimants if they are forced to return to Nigeria. These threats of harm continue unabated through the claimants’ relatives in Nigeria.

[34]     Therefore, based on all the evidence before me, I find, on a balance of probabilities, that the associate claimant and the minor male claimant will face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

State Protection

[35]     I find that adequate state protection would not be reasonably forthcoming in this particular case.

[36]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. 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 (Ward [1993] 2 S.C.R. 689).

[37]     The principal claimant stated that she will not be able to seek police protection in Nigeria because the issue of FGM is considered private, in which the police do not intervene.

[38]     Objective evidence states that authorities often do not take complaints about FGM seriously. There are no reported instances of any prosecutions brought under federal anti-FGM legislation since its introduction in 2015. A recent study conducted by UNFPA and UNICEF does not list any arrests, cases, or convictions for FGM in Nigeria.viii

[39]     Objective evidence also states that there are reports which indicate that it remains extremely difficult for women and girls to obtain protection from FGM due to community support for these practices, the attitude of police, and treatment by the police of FGM as a community or family matter.ix

[40]     Finally, I quote the United Kingdom Home Office report, which indicates that the police may be discriminatory in their treatment of victims of ritual practices, including FGM, and that women often do not report such practices to the police due to a lack of trust. Police themselves can be part of the culture and thus fail to treat such practices as criminal.x

[41]     The objective evidence discussed above establishes that FGM is considered a private matter in Nigeria. It is a prevalent practice in the country, thereby influencing the response of the police as not taking such acts seriously and thereby failing to provide protection to victims or potential victims of FGM and gender-based violence. Therefore, I find that the claimants will not be able to access adequate state protection in Nigeria and that the presumption of state protection has been rebutted.

Internal Flight Alternative

[42]     The final issue is whether the claimants have a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, I must assess whether there is any location in Nigeria in which the claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.xi

[43]     The agent of persecution in this case is the associate claimant’s father, who is extremely motivated to pursue the claimants in order to fulfill the long-standing family and Yoruba tradition of subjecting the minor female claimants to FGM. He has demonstrated through the kidnapping attempt of the associate claimant that he has the motivation and the reach to locate them within Nigeria.

[44]     Therefore, for reasons similar to those of state protection and the motivation and ability of the agent of persecution to locate the claimants, I find that they do not have a viable internal flight available in Nigeria.

CONCLUSION

[45]     For the reasons above, I conclude that the principal claimant and the minor female claimants are Convention refugees under section 96 of IRPA. Accordingly, I accept each of their claims.

[46]     For the reasons above, I conclude that the associate claimant and the minor male claimant are persons in need of protection within the meaning of section 97 (1)(a) or (b) of IRPA. Accordingly, I accept each of their claims.

(signed)  Sandeep Chauhan

i Immigration and Refugee Protection Act, S.C. 2001, c. 27.

ii Exhibit 2.

iii Exhibit 1.

iv Exhibit 3, National Documentation Package (NDP), Nigeria, 16 April 2021, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017. NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

v Exhibit 3, NDP, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017.

vi Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

vii Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGAI06183.FE.

viii Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

ix Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGA 106183.FE. NDP, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

x Exhibit 3, National Documentation Package, Nigeria, 16 April 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

xi Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

Categories
All Countries Nigeria

2021 RLLR 5

Citation: 2021 RLLR 5
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2021
Panel: David Jones
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-00847
Associated RPD Number(s): VC1-00848, VC1-00849, VC1-00850
ATIP Number: A-2022-00210
ATIP Pages: 000195-000201

DECISION

This transcript constitutes the member’s written reasons for decision.

[1]       MEMBER: So, we are now on the record. So, this transcript constitutes the Member’s written reasons for decision, as the decision was not given orally at a hearing.

[2]       This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada of the claims of the principal claimant, XX XXXX, her adult son, XX XXXX, her adult daughter, XXXX XXXX, and her minor son, XXXX XXX, who are all citizens of Nigeria seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The principal claimant was appointed as a designated representative for her minor son. I have also reviewed and applied the chairperson’s guideline on women refugee claimants fearing gender-related persecution and the chairperson’s guideline on child refugee claimants’ procedural and evidentiary issues.

Allegations

[3]       The claimants fear risk to their lives from the principal claimant’s husband’s former business partner, namely a XXXXXXXX (ph), if they were to return to Nigeria. During the hearing, the principal claimant also testified that she feared that her husband’s family would harm her if she returned because they believe that she is responsible for his disappearance. The female claimants also raised fears of being — of persecution because of their gender if they were to return.

[4]       Details of the claimants’ allegations can be found in the principal claimant’s Basis of Claim form and attached narrative, including the amendments which are found at Exhibit 7 and 8. The following is a summary of their allegations and testimony. The principal claimant and her husband were married in 2002 and they had five children together. Three of the children are part of this claim. The principal claimant’s husband had his own business XXX and XXXX XXXXX XXXX. In XXX 2017, the principal claimant’s husband received a large contract and he needed to borrow XXXXXX naira from his associate XXXXXXXXX to in order to pay for the XXXXX. Around XXX 2017 the principal claimant’s husband came home and said that the man he was to buy the XXXXX from had collected payment and had now disappeared, and that he was afraid of XXXXXXXX. In XXX 2017, XXXXXXXXX and some thugs came to the claimants’ home and demanded money. The principal claimant’s husband was beaten up and asked them for two months to pay back the money. After the men left, the principal claimant’s husband went to the police but they just accused the husband of trying to steal the money. A month later, the principal claimant’s husband and their oldest son were beaten up by some thugs on their way home. They were told that if XXXXXXXXX did not get his money soon they would both be killed. The principal claimant’s husband was scared and he and the eldest son left a few days later. The principal claimant has only received one call — phone call from them, which occurred a few days after they left, and her husband apologized for leaving her and the other children. The principal claimant started receiving threatening phone calls at home after her husband left, saying that her husband should pay or else.

[5]       In XXXXX 2017, XXXXXXXX and some thugs appeared at the claimants’ house asking for the husband. When the principal claimant said that he no longer lives there, they became angry and the claimants were all blindfolded and put into a van. They were taken to an abandoned warehouse. The principal claimant was told they would be released if her husband turned himself in or repaid the debt. The claimants were only fed one meal a day. On the third day, the principal claimant was taken away from where her children were held and she was raped by three men. The claimants were beaten daily. On the sixth day the principal claimant’s youngest child XXXX was crying and he would not stop. One of the men started beating XXXX, and XXXX became quiet and stopped moving. The man told the principal claimant that XXXX was dead, and they took him away. On the 10th day, the claimants were alone in the warehouse when they heard a noise outside. They started shouting and some hunters broke down the door and untied them. The hunters took them — oh, sorry, told them where to go to the police station, and they went there and made a report. Afterwards, the claimants went to a chemist for treatment and then they went to the church for help. The claimants stayed at their church until they left Nigeria. A few days later, the principal claimant heard from her neighbour that some men, including XXXXXXXXXX, had come to their house with the police looking for the claimants and saying that they had stolen some money. The principal claimant called the police, and they said there is no report on file and that they had probably made the whole thing up. The claimants already had a valid US visa from a planned holiday in 2016 that never happened, and with the help of their neighbour, who retrieved their passports, and their church, who arranged for the plane tickets, the claimants left Nigeria on XXXXXXX, 2017. On XXXXXXX, 2017 the claimants arrived in the US, and three days later they made their way to Canada. In XXXX 2018, the claimants applied for refugee protection.

Determination

[6]       I find that the claimants are persons in need of protection.

Analysis

Identity

[7]       The claimants’ identities as citizens of Nigeria have been established on a balance of probabilities by their Nigerian passports, located at Exhibit 1.

[8]       The allegations likely support a nexus to a Convention ground for the claimants, including, for the female claimants, a nexus to their membership in a particular social group based on their gender, but given my determination, I find it unnecessary to assess this claim under s. 96.

S. 97 Analysis

[9]       I find that the claimants are persons in need of protection, as their removal to Nigeria would subject them personally to a risk to their lives, to cruel — or to a risk of cruel and [inaudible] punishment under subsection l(b) of the IRPA.

Credibility

[10]     For the reasons below, I find that the adult claimants are credible witnesses. In making that finding, I am relying on the principle that a claimant who affirms to tell the truth creates the presumption of truthfulness unless there are reasons to doubt their truthfulness. In this regard, the principal claimant provided the vast majority of the testimony, as the other adult claimants were minors at the time of the incidents. The claimants all had some difficulties with details, including dates, during their testimony. As said, I do not make a negative credibility finding, given the personal characteristics of the claimants. The principal claimant never completed primary school. She is illiterate, and there is a XXXXXX report at Exhibit 5 that describes the principal claimant as suffering from XXXX that creates cognitive problems for her, including inability — an inability to retrieve specific details of her past, including dates. The other adult claimants, as mentioned before, were minors during the events that occurred. Given the claimants’ particular circumstances and Jack of sophistication, I make no negative credibility findings based on their difficulties with some of the details, including dates. While the adult claimants who testified had some difficulties, as noted above, in the end, their testimony was consistent with their Basis of Claim forms, supporting documents, and each other.  The claimants were able to clearly describe their fears for returning. to Nigeria. The principal claimant described details of how they escaped the warehouse and their travel back to the church. She also described the people she has been in contact with since leaving Nigeria, who have told her about how her agent of harm is continuing to pursue them. The claimants were all able to directly respond to questions asked.  There were no relevant inconsistencies in the claimants’ testimony or contradictions between their testimony and the other evidence. I find that the claimants who testified were credible witnesses.

[11]     The claimants also provided documents to support their claim. These documents can be found in Exhibits 5 through 2.11. They include, at Exhibit 5, photographs of the claimant’s family including XXXX. Exhibit 7 contains documents such as a birth certificate for XXXX. I have no reason to doubt the genuineness of these documents and since they relate to significant part of the claimants’ allegations, the unfortunate loss of their son, I put significant weight on these documents to support their allegations and overall claim. The claimants also provided some letters of support from different people in Canada. During the hearing, I asked the principal claimant why she did not provide letters of support from anyone in Nigeria, such as her neighbour. The principal claimant testified that she had asked people to provide letters and had expected them to come. She had also followed up with them when they didn’t arrive, and she was told that they had been mailed. These letters never arrived in time for the hearing. I accept the claimants explanation, as the documents are outside of her control, and she has made reasonable efforts to try and obtain them. As such, I make no negative credibility finding as a result.

[12]     I also find the claimants have a subjective fear of returning to Nigeria even though they first went to the US before coming to Canada and make a claim. The principal claimant testified that her son had found a video showing Nigerian claimants coming to Canada, and given the Trump administration at the time, they decided to come to Canada to claim protection. I accept this explanation, especially given the claimants only spent three days in the US prior to coming to Canada, and I find that the claimants have a subjective fear of returning to Nigeria.

Country Condition Evidence

[13]     I find that the country condition documents support the claimants’ fears of returning to Nigeria. As background, the 2020 US Department of State report in item 2.1, the national documentation package for Nigeria found in Exhibit 3, describes numerous human rights concerns in the country, including unlawful and arbitrary killings by both governments and non-state actors, forced disappearances by government, terrorists, and criminal groups, torture in cases of cruel, inhumane, or degrading treatment or punishment, arbitrary detention by government and non-state actors, serious acts of corruption, trafficking in persons, and inadequate investigation and accountability for violence against women. A 2020 report on Nigeria’s security situation found at item 7.7 indicates that organized criminal forces in the southern and middle parts of the country committed abuses such as kidnappings, that while the level of violence declined in 2009, it had been — it has been rising since then. A 2020 crime and safety report found at item 7.28, while directed at a US audience, states that, and I quote, “Crime is prevalent throughout Nigeria. Most crime directed towards US travellers and private security entities in the southern Nigeria seeks financial gain. US visitors and residents have been victims of a wide range of violent crime, including armed robbery, assault, burglary, carjacking, rape, kidnapping, and extortion. The most commonly reported crimes are armed robbery, kidnap for ransom, and fraud,” end quote. Other reports in the NDP, for example, item 7.37, also describe the prevalence of financially motivated kidnappings throughout Nigeria. The claimants also provided three articles, found in Exhibit 4, that describe the risk — sorry, the rising risk of kidnappings throughout Nigeria.

[14]     Numerous reports in the national documentation package also indicate that discrimination and violence against women is prevalent in Nigeria. See, for example, items 1.4, 1.8, 2.1, 2.9, 5.1, and 5.3. For example, a 2019 OECD report found at item 5.1 describes how Nigeria has taken steps to reduce gender­ based violence. However, the report states that, and I quote, “Despite these national efforts, violence against women is endemic in Nigeria,” end quote. This is also indicated in the Australian Department of Foreign Affairs reported in item 1.8, that states that, and I quote, “Women and girls frequently experience gender-based discrimination and violence in Nigeria. Nigeria remains a highly patriarchal society and cultural traditions, including forced child marriage, female genital mutilation, and so-called widowhood practices,” end quote.

[15]     I find on a balance of probabilities that the agent of harm has targeted the claimant as a result of a debt incurred by the principal claimant’s husband. I further find on a final balance of probabilities that the debt has not been repaid, and as such, it has created a risk for the claimants that is not faced generally by others Nigeria. Finally, given that the debt is still unpaid and the principal claimant’s testimony that she has been advised by people including her former neighbour in Nigeria that XXXXXXX is continuing to look for the claimants, I find that the claimants face an ongoing risk if they were to return to Nigeria. As such, I find on a balance of probabilities that claimants face a personalized risk to their lives that is not faced generally by others in Nigeria.

State Protection

[16]     With respect to state protection, a state is presumed capable of protecting its citizens, and a claimant must establish on a balance of probabilities, through clear and convincing evidence, that a country’s protection is inadequate. Simply asserting a subjective belief that state protection is not available is not enough to rebut the presumption. The more democratic a state’s institutions, the more a claimant must do to exhaust the options available to them. As discussed below, I find that the claimants have rebutted this presumption.

[17]     The objective evidence indicates that while the Nigerian government has taken steps to legislate protection, there remains no adequate state protection available for women fleeing gender-based violence. For example, a 2020 US Department of State report found at item 2.1 states that, and I quote, “Police often refuse to intervene in domestic disputes or blame the victim for provoking the abuse,” end quote. That report lists one of the significant human rights issues in Nigeria as the inadequate investigation and accountability for violence against women. In addition, the 2018 DFAT report at item 1.8 indicates that while Nigeria passed the Violence against Persons Act that criminalized sexual violence and provided support for domestic violence victims, that the government’s shelters are poorly equipped and do not provide adequate protection. Finally, a 2017 corruption report found at item 7.11 indicates that corruption is pervasive throughout all institutions in Nigeria. The report indicates the judicial system is perceived as corrupt and bribes to obtain favourable judgments is common, that almost — the report also indicates that almost all Nigerians believe that the police are corrupt, and the police are also considered very unreliable in enforcing the law, and that police officers continue to operate with impunity. This lack of adequate state protection can be found elsewhere in the national documentation package, including at the items noted previously. [inaudible] in the response — sorry, this is also shown in the response that the principal claimant received from the police when she tried to follow up on the two reports she made in person and they denied having any reports [inaudible]. Based on the evidence, I find on a balance of probabilities that there is no operationally effective state protection available to the claimants in their circumstances.

Internal Flight Alternative

[18]     The test for internal flight alternative is well-established. I must be satisfied that one, the claimant would not face a serious risk of — sorry, face a serious possibility of persecution or be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual punishment in the proposed internal flight alternative, and two, that conditions in that part of the country are such that it would be objectively reasonable in all the circumstances, including those particular to the claimants, for them to seek refuge there. For the reasons below, I find that the claimants do not have an internal flight alternative.

[19]     The issue of whether Abuja would be a viable internal flight alternative for the claimants was identified at the start of this hearing. The principal claimant testified that she would be at risk in Abuja because of Boko Haram, being unable to obtain employment as a single mother, and that XXXXXXX was able to locate the claimants — or would be able to locate the claimants through his connections with the police. XXXX also described fearing Boko Haram because he is a practicing Christian and described how he would be unable to find work or accommodations. Finally, XXXXX described her fears based on how women are treated in Nigeria

[20]     The country condition documents support the claimants’ belief that it would not be reasonable for them to relocate to another part of Nigeria, including Abuja. For example, a 2019 response to information report at item 5.9 indicates that single women may encounter difficulties, including with respect to education, employment, and housing.  With respect to housing, the report indicates that Nigeria has a lack of adequate housing, that prejudice exists against women, that landlords reject — that causes landlords to reject their applications. With respect to housing in Abuja, the report indicates that there is a deficit of 600,000 houses, and the report quotes a source who states that, and I quote, “The majority of women without support from male counterparts or family members have to engage in commercial sex work in order to pay for their rent,” end quote.  The report also indicates that women, particularly unmarried women, experience discrimination with respect to economic opportunities, wages, and conditions of work. It quotes two sources who indicate that female heads of household will be subject to sexual exploitation. Further, the report indicates concerns with the ability of women from out of state accessing public services, and that women not from the state would have to be married or reside in state for over 10 years to be eligible to access government welfare services. [inaudible] also states that the Nigerian government has no general support for women in need. Finally, the claimants are Christian, and a response to information request found at item 12.5 indicates that violence against Christians from Boko Haram occurs in Abuja and that Boko Haram has attacked churches, masques, and public spaces in Abuja. The claimants also provided, at Exhibit 4, a Human Rights Watch report that indicates the challenges faced by people trying to relocate to cities where they are not originally from, including the discrimination they face when it comes to education and employment.  As noted previously, the principal claimant did not complete primary school. The other adult claimants have not completed high school. None of the claimants have significant work experience. The principal claimant has worked as a XXXX before leaving Nigeria, and XXXX has started working at an XXX XXXXX, but his experience is minimal. Given the country conditions noted above, I find that it would be objectively unreasonable in their particular circumstances for the claimants to relocate to Abuja or elsewhere in Nigeria. Given my finding under the section — second prong of the test, I find it unnecessary to consider the first prong. Accordingly, the claimants do not have a viable internal flight alternative available to them.

Conclusion

[21]     For the reasons above, I find that the claimants are persons in need of protection within the meaning of s. 97(1)(b) of the Immigration and Refugee Protection Act, and accordingly the Board accepts their claim.

(signed)    David Jones

– – – – – – – – – – REASONS CONCLUDED – – – – – – – – – –

Categories
All Countries Zimbabwe

2021 RLLR 4

Citation: 2021 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: May 5, 2021
Panel: Meredith Rose
Counsel for the Claimant(s): Johnson Babalola
Country: Zimbabwe
RPD Number: TB9-15167
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000133-000135

DECISION

[1]       MEMBER: All right. So, this is the decision for XXXX XXXX XXXX. The file number is TB9-15167. Now, I have considered your testimony, and the other evidence in the case, and I am ready to render my decision orally.

[2]       Now, you are claiming to be a citizen of Zimbabwe, and claiming refugee protection pursuant to s. 96 and 97 of the Immigration and Refugee Protection Act, and today, I do find that you are a Convention refugee for the following reasons.

[3]       Now, the full allegations in your claim are set out in the Basis of Claim form, as well as the amendments. To summarize those, you allege a fear of persecution as a result of, first of all, your perceived political opinions as a member of the opposition, and, you know, those are your actual political opinions as well, as you have now joined the MDC, and, in your testimony, you have also alleged that you have supported the MDC. You allege that there is no state protection for you, or any internal flight alternative.

[4]       Now, your personal identity as a citizen of Zimbabwe has been established by the testimony, as well as the supporting documents, primarily, the certified copy of your passport, found in Exhibit 1. So, I do find on a balance of probabilities that identity and country of reference have been established.

[5]       Now, your testimony today was generally credible. There were no significant inconsistencies or discrepancies in your testimony today, and your testimony about the MDC is consistent with the documentary evidence. You testified in some detail about the history, and the current status of the MDC, you spoke quite knowledgably about the current government, and you also testified about your activities here in Canada, and you were able to elaborate on the information in your Basis of Claim form. While you have previously maintained a very low profile in terms of your political activities, I do accept your testimony about what you knew to be the risks about being a vocal supporter of the political opposition, and so, that did limit your participation when you were in Zimbabwe. So, I do accept that you were genuinely a supporter of the MDC, and your family also has links to the MDC, as your uncle was quite high-profile within the party. I also have a sample of your activities on social media, and that includes the post on Twitter that was commented on by the leader of the MDC party, Nelson Chamisa. This does demonstrate an ongoing engagement on social media, where you are clearly expressing your opposition to the regime in Zimbabwe.

[6]       In addition, there is also supporting documents, which include your MDC membership card and support letter from the MDC here in Canada, as well as a medical report, and affidavits, which are consistent with, and corroborate, your allegations in your Basis of Claim form. So, I did find your testimony was very straightforward, and you did not elaborate, or try to embellish your claim in any way. So, I accept what you have alleged in your testimony, and in your Basis of Claim form, and I find you have a subjective fear of return to Zimbabwe.

[7]       I do find that there is a link between what you fear and one of the five Convention grounds, specifically, your political opinions, and so this claim has been assessed under s. 96.

[8]       Now, looking at the country condition documents, the information in there indicates that the ZANU-PF government does continue to crack clown on dissenting voices. Authorities routinely suppress the right to freedom of association and peaceful assembly using lethal and excessive force to disperse peaceful demonstrations. Civil society space is continuing to shrink as a consequence. State security agents continue to use excessive force in dispersing protests and assemblies, opening fire on protesters. So, the information in the NDP also corroborates your allegations about what occurred to you in XXXX of 2019, so, during nation-wide protests in XXXX XXXX XXXX of 2019, following the announcement of the fuel price increase, security forces responded with lethal force, killing at least 17 people, shooting and injuring 81 people, and arresting over 1,000 suspected protesters during door-to-door raids. Following the protests, security forces rounded up and detained hundreds of people, many of whom brought before courts on charges of public violence and criminal nuisance.

[9]       With respect to your social media activities, the information in the NDP also confirms that the government is intolerant of critical online commentary and activism, often invoking vaguely written laws to arrest users. Numerous individuals were arrested for their activities online, and self-censorship remains common among Zimbabweans. The arrest of human rights defenders and opposition figures over their online activism, as well as the government’s threatening statements about posting critical content, increased fear, and inhibited expression, according to local observers. So, the documentary evidence therefore does clearly establish in Zimbabwe, political opponents face serious, sustained, and systemic human rights abuses, as well as threats to free political expression, that cumulatively amount to persecution. So, I do find that you have established a well-founded prospective risk of being subject to a serious risk of persecution if you return to Zimbabwe.

[10]     Looking at the issue of state protection, or internal flight alternative, as the agent of persecution in your particular case is essentially the state, or the supporters of the ruling regime, I do not find that state protection would be reasonably available to you, and, as the government of Zimbabwe does remain in control of its territory, there is nowhere else in Zimbabwe you could safely reside. So, there is no internal flight alternative available for you.

[11]     So, based on all of this evidence, I do find you to be a Convention refugee, and your claim is therefore accepted.

[12]     Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries South Africa

2020 RLLR 3

Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068

REASONS FOR DECISION

INTRODUCTION

[1]       The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The principal claimant acted as the designated representative for the two minor claimants.

[3]       Throughout the proceeding and in the decision-making process, the Panel applied the

Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.

DETERMINATION

[4]       The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.

[5]       The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.

ALLEGATIONS

[6]       The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.

[7]       In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.

[8]       The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.

[9]       The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.

[l 0]  The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.

[11]     The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.

[12]     The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.

ANALYSIS

Identity

[13]     The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3

Nexus

[14]     The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.

Credibility

[15]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4

[16]     The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5

[17]     The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.

[18]     The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.

[19]     According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.

[20]     Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7

[21]     Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.

State Protection and Internal Flight Alternative

[22]     The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:

“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8

[23]     Tab 5.7 of the NDP further reports that police do not take GBV seriously:

“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9

[24]     The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:

“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10

[25]     Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.

[26]     Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.

CONCLUSION

[27]     Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.

DECISION

[28]     The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.

            Nalong Manivong      

            18 January 2021         

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).

2 Document 2.1 – Basis of Claim Form.

3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;

4 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.).

5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.

6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.

9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

Categories
All Countries Uganda

2021 RLLR 2

Citation: 2021 RLLR 2
Tribunal: Refugee Protection Division
Date of Decision: May 12, 2021
Panel: Suraj Balakrishnan
Counsel for the Claimant(s): Johnson Babalola
Country: Uganda
RPD Number: TB9-27084
Associated RPD Number(s): N/A
ATIP Pages: 000045-000052

REASONS FOR DECISION

[1]       The claimant, XXXX XXXX alleges that he is a citizen of Uganda, and is claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

DETERMINATION

[2]       Having considered all of the evidence, the panel finds, on a balance of probabilities, that the claimant has established that he would face a serious possibility of persecution in Uganda because of his religion.

ALLEGATIONS

[3]       The specifics of the claim are set out in the narrative of the claimant’s Basis of Claim Form, as amended.1 The following is a summary of the claimant’ s allegations.

[4]       The claimant alleges to be a citizen of Uganda. He fears being persecuted by the Tabliq, a fundamentalist faction of Ugandan Muslims, because of his Christian proselytization efforts.

IDENTITY

[5]       The claimant’s personal identity and nationality have been established, on a balance of probabilities, through his testimony, as well as documentation filed; namely, a certified true copy of his Ugandan passport.2

NEXUS

[6]       The panel finds that there is a nexus between the harms that the claimant fears and his religious views and practices. The claim will therefore be assessed pursuant to section 96 of IRPA. The test under section 96 is whether there is a serious possibility of persecution should the claimant return to Uganda and the panel has found that the claimant has met that test.

CREDIBILITY

Identity as a Christian

[7]       When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. The claimant testified in a detailed manner consistent with his BOC about growing up as a Christian and becoming more interested in Christianity during his university days in the United Kingdom. The claimant testified that he became more interested in Christianity in the UK because he would encounter Muslims proselytizing, and he wanted to learn more about Christianity so that he would be able to defend his faith in these discussions.

[8]       The claimant was asked basic questions about Christianity, including the most recent church service he attended, the contents of the sermon, his favorite story from the Bible, and Easter. The claimant’s responses were very detailed. The claimant also provided a copy of his Certificate of Baptism from XXXX XXXX XXXX3, as well as a supporting letter form XXXX XXXX XXXX XXXX in Canada.4 The panel finds, on a balance of probabilities, that the claimant is a genuine practicing Christian.

Proselytism and Incidents

[9]       When the claimant returned to Kampala, Uganda, he went to a park on three occasions with a friend during May of 2019 where Muslims were proselytizing. On the first visit to the park, the claimant shared his views of Christianity with two of the Muslim proselytizers who were old friends of the claimant’s friend. The claimant did not sense any hostility from the two Muslim proselytizers; they shared a ride back to their respective homes as they had to go in the same direction. On his subsequent visit to the park, the claimant, in his efforts to defend and spread Christianity to the same two Muslim proselytizers, criticized, among other things, the Prophet Muhammad. In response, the Muslim proselytizers became angry and threatened to kill the claimant for insulting the honor of the Prophet Muhammad. The claimant and his friend left the park and decided to visit the park on another day so that they could preach to different Muslim proselytizers. On a third visit to the park, five or six Muslim proselytizers were expressing angry comments and threatening the claimant.

[10]     After his last effort to proselytize, the claimant testified that several incidents took place. First, his security guard informed him of two people behaving suspiciously near the claimant’s home. While the claimant was briefly away in Nigeria to attend a Christian service that he believed would bless him for his personal safety, his mother informed him of an acid attack near her home that she believed, after speaking to others in the area, was an attack intended for the claimant and carried out by the Tabliq. The claimant returned to Uganda and hid in his mother’s home, whereafter there were two additional incidents, including finding a padlock at his mother’s home tampered with and hearing some commotion outside his mother’s home along with Islamic chants. His friend later informed him that these were attempts made by the Tabliq.

[11]     The claimant’s testimony about his proselytization efforts was detailed, consistent with his BOC, and his responses to matters not set forth in his BOC was candid. In particular, the claimant was very detailed in testifying about what he said in his efforts to proselytize. The claimant’ s testimony about the incidents that followed was consistent with his BOC and somewhat detailed, and the claimant was emotionally expressive in his testimony.

[12]     The claimant provided supporting documentation to corroborate his proselytization efforts and the incidents that ensued, including an affidavit from his mother,5 attesting to the incidents that occurred near her home, as well as an original physical copy of a newspaper article in the newspaper titled XXXX XXXX,6 which contains the claimant’s photo and states, apparently based on information provided by the claimant’ s relatives, that the claimant insulted the Prophet Muhammad and has fled Uganda in fear of retaliation from the Tabliq. The claimant testified that the newspaper is circulated nationally, and that the author of the article likely found out about his situation through his mother. The panel finds, on a balance of probabilities, that these documents help corroborate the claimant’s allegations regarding his proselytization efforts and the incidents that followed.

[13]     Specifically, the panel finds, on a balance of probabilities, that the claimant engaged in proselytization efforts; that in the course of proselytizing, he expressed views critical of Islam and the Prophet Muhammad; and that he faced retaliation from the Tabliq.

[14]     Given the credible testimony by the claimant, as well as the corroborating documentation cited above, the panel finds the claimant to be a credible witness. Therefore, the panel believes what the claimant has alleged in support of his claim and finds that his subjective fear of persecution due to his religion is established, on a balance of probabilities.

OBJECTIVE BASIS

[15]     The objective documentary evidence in the national documentation package is limited and mixed as it relates to problems faced by Christians in Uganda in connection with Islamic religious extremism. One article describes the Tabliq as a fundamentalist faction of Ugandan Muslims, but notes that “[d]ifferent religions do not only coexist but even cooperate” in Uganda.7 Another article, however, notes that Uganda ranks “just outside the top 50 countries in which Christians are persecuted”8 and reports that “Christian groups living in areas affected by the presence of Islamic extremists face persecution.”9 The article documents several instances of Muslim who convert to Christianity being attacked.10 While the claimant himself is not a convert from Islam to Christianity, he was trying to convert Muslims to Christianity.

[16]     The claimant provided numerous news articles documenting attacks by Islamic religious extremists against Christians, including for expressing views that are offensive to some Muslims and for Christian proselytization.11 These articles document attacks from various regions in Uganda. The claimant also provided an article from the Africa Center for Strategic Studies, which describes the Tabliq as being religiously fundamentalist and having connections to terrorism.12

[17]     The panel finds, on a balance of probabilities, that while ordinary Christians do not face persecution in Uganda, there is an objective basis to the claimant’s fear of returning to Uganda. This is because (i) the country conditions documents indicate that there are Islamic religious extremists in Uganda who attack Christians who express views offensive to Islam and for Christian proselytization, (ii) the claimant was involved in proselytizing to Islamic religious extremists and the nature of his proselytization involved expressing views that could be construed as offensive or blasphemous to Islamic religious extremists, and (iii) the claimant’s identity and story have been publicized in a widely circulated newspaper. Accordingly, the claimant has a well-founded fear of persecution in Uganda.

STATE PROTECTION

[18]     In general, there is a presumption that state protection is available to the claimant and this presumption must be rebutted with clear and convincing evidence. Here, the claimant testified to going to the police after his security guard informed him of two people behaving suspiciously near his home. The claimant testified that the police requested a bribe and suggested that the claimant brought this upon himself by disturbing Muslims.

[19]     The claimant submitted country conditions news articles indicating that the police in Uganda are generally viewed as being very corrupt, including due to bribery.13 In the national documentation package, the Uganda 2020 Crime & Safety Report by the Overseas Security Advisory Council notes that “[d]espite efforts to professionalize and modernize the force, the UPF still struggles with a lack of resources, corruption, and regular reports of human rights violations.”14 Freedom House provides Uganda with a score of 1 out of 4 in each of the subcategories under Rule of Law, including whether due process prevails.15 The United States Department of State notes numerous issues with policing in Uganda, including bribery.16

[20]     The panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection in Uganda. This is because the claimant testified in a detailed and candid manner about trying to obtain state protection and being asked for a bribe, and the country conditions cited above indicate that such corruption is a serious issue in Uganda.

INTERNAL FLIGHT ALTERNATIVE

[21]     The panel considered whether a viable internal flight alternative exists for the claimant, particularly in Mbarara, a large city located approximately 270 kilometers away from Kampala, where the claimant engaged in proselytization and faced retaliation.

[22]     The claimant testified that proselytization of the kind of he engaged in is an important part of his religious practice that he would continue to engage in if he were returned to Uganda. Given the claimant’s previous proselytization efforts and his very detailed and expressive testimony about his previous proselytization efforts, the panel finds, on a balance of probabilities, that the claimant would continue to proselytize in the manner he did in the past if returned to Uganda. The claimant further testified that he is active on social media, which was supported by a copy of his Facebook activity log.17 According to the claimant, this could make it easier for those pursuing him to track him down. The claimant also testified, in a manner consistent with his BOC, that his mother has received threats directed toward the claimant.

[23]     The panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution throughout Uganda. This is because (i) the country conditions documents indicate that attacks by Islamic religious extremists on Christians, including for Christian proselytization, occur in various regions across the country; (ii) the claimant testified that proselytization of the kind he engaged in is important to his religious practice, which suggests that the claimant could draw adverse attention to himself from Islamic religious extremists, including those who are already pursuing him; (iii) the claimant is active on social media, which could make it easier for him to be tracked down; (iv) the claimant’s identity and story, including the allegation that he insulted Prophet Muhammad, have been publicized in a newspaper; and (v) the Tabliq group appears to remain interested in the claimant. These factors indicate that the religious extremists would have the means and motivation to pursue the claimant.

CONCLUSION

[24]     Having considered all of the evidence, the panel finds that there is a serious possibility of persecution for the claimant in Uganda if the claimant returns to Uganda. The panel finds the claimant to be a Convention refugee and accepts his claim.

(signed) Suraj Balakrishnan  

May 12, 2021 

1 Exhibits 2 and 9.

2 Exhibit 1.

3 Exhibit 7.

4 Id.

5 Id.

6 Exhibit 13.

7 Exhibit 3, NDP 30 September 2020, Item 1.4, BTI 2020 Country Report – Uganda. Bertelsmann Stiftung. 2020. 22 September 2020.

8 Exhibit 3, NDP 30 September 2020, Item 12.2, UGA106318.E. Immigration and Refugee Board of Canada. 17 July 2019.

9 Id.

10 Id.

11 Exhibit 7.

12 Exhibit 13.

13 Exhibit 7.

14 Exhibit 3, NDP 30 September 2020, Item 7.2, Uganda. 2020 Crime and Safety Report. United States. Overseas

Security Advisory Council. 22 April 2020.

15 Exhibit 3, NDP 30 September 2020, Item 2.4, Uganda. Freedom in the World 2020. Freedom House. 2020.

16 Exhibit 3, NDP 30 September 2020, Item 2.1, Uganda. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

17 Exhibit 11.

Categories
All Countries Pakistan

2021 RLLR 1

Citation: 2021 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: June 15, 2021
Panel: Rodrick Flynn
Counsel for the Claimant(s): Miranda Lim
Country: Pakistan
RPD Number: TB9-17419
Associated RPD Number(s): TB9-17487
ATIP Number: A-2022-00210
ATIP Pages: 000035-000044

REASONS FOR DECISION

[1]       XXXX XXXX (“the principal claimant”) and his wife, XXXX XXXX (“the female claimant”) (collectively “the claimants”) are citizens of Pakistan and are seeking refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.1

ALLEGATIONS

[2]       The specifics of the claimants’ allegations are set out in the common narrative2 attached to each of the Basis of Claim forms.3 In summary, the claimants indicate that they are bath members of the Ahmadi Muslim faith4 and fear persecution in Pakistan on the grounds of their religion5. The principal claimant was a resident of Italy from XXXX 20056 to XXXX 20197 and was issued an EC Long-Term Residence Permit (“the Permit”) in late 20188 before the claimants carne to Canada on XXXX, 2019.9 After growing up in Pakistan, the female claimant lived in Germany on a student visa from XXXX 2015 to XXXX 2019 on a series of term student visas.10

DETERMINATION

[3]       The panel finds the claimants to be Convention refugees under section 96 of the IRPA, based upon their Ahmadi religion.

ANALYSIS

Identity

[4]       The claimants’ respective identities as citizens of Pakistan are established by the various documents on file11, including a copy of their respective Pakistani passports12 which were submitted into evidence at the hearing.

[5]       The claimants’ religious identities as members of the Ahmadi faith are established, on a balance of probabilities by their credible oral evidence concerning the nature and history of their faith and their participation in religious activities; as well as various documents entered into evidence. These records include:

  • Canadian Ahmadi Certificates13;
  • Ahmadi identity cards;14
  • Ahmadi donation receipts from Canada;15
  • Ahmadi donation receipts from Pakistan;16
  • Ahmadi donation receipts from Italy and Germany;17 and
  • various other confirmations of their participation and recognition in the Ahmadi faith.18

Credibility

[6]       Both of the claimants gave oral evidence at the hearing. Generally, the panel finds them both to be credible witnesses, particularly with respect to their official marital status in Europe; their status in Italy and the EU and the Permit; and the most significant elements of their claims, including the reasons why they had left both Pakistan and Europe and came to Canada.

Well-founded fear of Persecution

[7]       As the panel has accepted the claimants’ respective religious identities as members of the Ahmadi faith, and in view of the clear and consistent objective evidence from the National Documentation Package for Pakistan19 that Ahmadis face persecution on religious grounds throughout Pakistan from both state and non-state actors without adequate state protection, the panel finds that there is a serious possibility of persecution for the claimants should they return to Pakistan.

[8]       The claimants have persuasively testified that they fear persecution and violence in Pakistan from various sources including the Pakistani government and religious extremists. This subjective fear is confirmed pervasively in the objective evidence.

[9]       As summarized by the UNCHR in Item 1.8 of the NDP for Pakistan, at p.46, Ahmadis in Pakistan face systemic discrimination and persecution both state-sponsored and from numerous private actors (including religious extremists as raised in the claimants’ oral evidence).20

“Repressive and discriminatory legislation coupled with State-sanctioned discriminatory practices have reportedly fostered a culture of religious intolerance and impunity. Consequently, members of the Ahmadi community are reportedly left vulnerable to abuse, violence including killings, harassment and intimidation at the hands of members of the community.”

[10]     The British Home Office Report on Ahmadi Muslims21 documents that in 1974, the Pakistani Constitution was amended to declare Ahmadis to be “Non-Muslims“.22 This was followed by a 1984 Amendment to Pakistani Penal Code, which are ” … commonly referred to as the anti-Ahmadi laws“.23

[11]     The objective evidence also records that the systemic state-sanctioned discrimination against Ahmadis is not palliated by correspondingly adequate internal protection. As noted in the aforementioned British Home Office Report at para. 2.5.4:

“The perpetrators of violence against religious and sectarian minorities are rarely apprehended and sentenced. There is a pattern of appeasement amongst the police of, and in some cases collusion with, religious extremists pursuing hate campaigns against the [Ahmadi] community.”24

[12]     Beyond police, the NDP also documents that despite the ostensible goal for the judiciary to be “… the last resort for a persecuted individual” to benefit from the rule of law25, the reality of like in Pakistan is that ” …the judiciary itself sometimes promotes tyranny“.26

[13]     The panel is persuaded, based upon the objective evidence from the NDP, that as members of the Ahmadi faith, the claimants face a serious possibility of persecution on this ground, throughout Pakistan, without adequate state protection.

Exclusion – Article 1E

[14]     The Minister has intervened in this matter in writing. In its “Notice of Intent to Intervene

-Exclusion 1E,”27 the Minister has taken the position that because the principal claimant obtained the Permit in Italy in 2018,28 he is a permanent resident of Italy, who, along with the female claimant, “…enjoy basic rights substantially similar to those of [Italy’s] nationals….”29

[15]     According to the Minister, because of the Permit, the principal claimant has permanent status in Italy and rights substantially similar to nationals so as to warrant their exclusion under 1E. With respect to the female claimant, the Minister has offered that “more likely than not, [the female claimant] already has permanent resident status and/or has access to permanent resident status as she is the spouse of a permanent resident“.30

[16]     According to the Minister, because the claimants both have this status in Italy, the claimants are excluded from refugee protection under the IRPA by operation of s.98 of the IRPA and Article IE of the Convention which read as follows:

“A person referred to in section E or F of Article 1 of the Refugee Convention31 is not a Convention Refugee or a person in need of protection”.32

Article 1E reads:

“This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”.33

[17]     The potential exclusion of the claimants was the principal focus of the hearing. The leading case on exclusion under Article 1E is the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Zeng34 which has been applied by the panel.

Current Status of the Claimants in Italy

[18]     The Minister contends that because the claimants have status in Italy – the principal claimant by the Permit and the female claimant by marriage to the principal claimant- they have rights in Italy which are substantially similar to nationals of that country.

[19]     This determination for each claimant must be made on the evidence.

Current Status of the Principal Claimant in Italy

[20]     The panel is satisfied, on a balance of probabilities, on the evidence before it, that the principal claimant was granted the Permit during 2018. However, the objective evidence of the NDP for Italy35 shows that the status and rights accorded under the permit are lost by a person spending more than 12 consecutive months outside of the European Union.36 Two Response to Information Requests in the NDP for Italy confirm that a Permit is “… voided if the person is absent from Europe for 12 consecutive months”.37 This objective evidence further stipulates that status accorded under the Permit can be revoked if the resident no longer meets the requirements38, such as an annual income requirement.39

[21]     The evidence before the panel is that the claimants have been in Canada (without leaving) since XXXX 2019. Accordingly, based upon this objective evidence, the panel finds, on a balance of probabilities that, at the time of the hearing, having remained out of Italy for over 12 months, the principal claimant’ s status in Italy will have expired.

Status of the Female Claimant

[22]     The Minister’s position is the female claimant acquired status in Italy under the Permit by marriage to the principal claimant. As noted in the Minister’ s Brief:

” … the Minister is of the opinion that the [female claimant] has permanent resident status in Italy via spousal sponsorship”.40

[23]     However, in the panel’s view, this conclusion is not supported, on a balance of probabilities, by the evidence before it. Both the principal claimant and female claimant credibly testified that despite their religious marriage by proxy (from Italy and Germany respectively through the Whatsapp application) in XXXX 2016,41 attempts by the previously-married principal claimant to obtain proof from the Pakistani Consulate in Milan Italy (in the form of a “No Objection Certificate”) that he was free to enter into a civil marriage with the female claimant were refused.42 Similar efforts by the female claimant to register the marriage in Germany were also unsuccessful.

[24]     The evidence before the panel is that the claimants’ marriage has not been officially registered with any European authority, including in Italy. Accordingly, the panel has no evidence before it to demonstrate, on a balance of probabilities, that any benefit would be extended to the female claimant as a spouse; or that there is any overt sponsorship or sponsorship of the female claimant under the Permit by operation of law.

[25]     Accordingly, the panel is not satisfied, on a balance of probabilities, that the female claimant has permanent resident status in Italy or Europe or rights under the Permit.

Previous Status in Italy/EU – Principal Claimant

[26]     The objective evidence from the NDP for Italy43 shows that the Permit, while conveying a wealth of substantive rights44, confers status which is vulnerable to being lost or taken away from individuals such as the principal claimant on a variety of listed grounds.45

[27]     As noted by the Federal Court in Shamlou v. Canada (Minister of Citizenship and Immigration),46 (quoting with approval Lorne Waldman, Immigration Law and Practice) at para. 35:

“If the applicant has some sort of temporary status which must be renewed, and which could be cancelled, or if the applicant does not have the right to return to the country of residence, clearly the applicant should not be excluded under Art. 1E.” [emphasis added].

[28]     In the panel’s view, the objective evidence clearly indicates that the principal claimant’s Permit could be cancelled on a number of grounds,47 including that ” … the bearer no longer fulfills the requirements for its issue”48 including a stipulated income requirement. 49 In the panel’s view, the principal claimant has provided credible evidence of chronic income instability during most of his time in Italy. The panel is satisfied, on a balance of probabilities, that the principal claimant is credible in his testimony s that because of the precarious status of his employment in Italy (comprised mostly by a series of contracts with various enterprises), aside from the issue of his absence (as noted above), he is vulnerable to having the Permit revoked on the grounds that he has not met the requisite income threshold.

[29]     Per Shamlou50, on the totality of evidence, because the Permit is vulnerable to being cancelled on multiple grounds, the panel finds on a balance of probabilities, that the principal claimant did not have status in Italy substantially similar to that of an Italian/EU national.

[30]     Further, as the panel has no evidence before it to indicate that the female claimant was conferred any rights, transitory or otherwise, under the Permit, it finds that she does not have status substantially similar to that of an Italian or EU national.

[31]     Accordingly, the panel finds that the claimants should not be excluded under Article 1E of s.98 of the IRPA.

CONCLUSION

[32]     For the reasons as above noted, the panel finds the claimants to be Convention refugees and accept their claims.

(signed) Roderick Flynn        

June 15, 2021 

1  Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended (hereinafter “the IRPA”).

2 Exhibit 2.1 and 2.2, “XXXX XXXX XXXX XXXX XXXX XXXX, (hereinafter “the

Narrative”)

3  Exhibit 2.1 and Exhibit 2.2.

4 Narrative, para. 1.

5  Ibid., para. 48.

6 Ibid., para. 14.

7 Ibid, para. 46.

8 Ibid, para. 16.

9 Ibid, para. 46.

10 Ibid., para. 35, para. 43-46.

11 Exhibit 4 includes multiple identity documents for both claimants, both photographic and non-photographic, including their National Identity Cards starting at p.66.

12 Exhibit 1.

13 Exhibit 4, p.1.-2.

14 Ibid, p.3.

15 Ibid., p.5-6.

16 Ibid., p.16.

17 Ibid, p.20-31.

18 Ibid, p.37-60.

19 Exhibit 3.1, NDP for Pakistan.

20 Ibid.

21 Ibid, “Country Policy and Information Note. Pakistan: Ahmadi Muslims.

22 Ibid, para. 3.1.6.

23 Ibid, para. 5.1.1.

24 Ibid, para. 2.5.4.

25 Ibid, para. 8.4.11.

26 Ibid.

27 Exhibit 7 (hereinafter “the Brief’ or “the Minister’s Brief’).

28 Narrative, para. 16; Minister’s Brief, para. 4.

29 Minister’s Brief, para. 17.

30 Ibid, para. 20 and 26.

31 Schedule to the IRPA, United Nations Convention on the Status ofRefugees.

32 IRPA, s.98.

33 Ibid.

34 2010 FCA 118 (“Zeng”).

35 Exhibit 3.2, National Documentation Package for Italy

36 Ibid, Item 3.7 “Response to Information Request (March 6, 2015). Italy: The permesso di soggiorno illimitata including its physical characteristics, requirements and procedures to obtain and renew the document, rights of holders of the document”, p.4. See also “Response to Information Request (28 February 2019). Italy: Grounds for revocation of the European Union (EU) residence permit for long-term residents (perrnesso di soggiomo UE per soggiomanti di lungo period also called perrnesso di soggiomo illimitata whether an individual who has lost their permit can apply to have it reinstated.”

37 Ibid, p.4.

38 Ibid.

39 Ibid., p.2.

40 Minister’s Brief, para. 26.

41 Narrative, para. 35.

42 Ibid, para. 37.

43 Supra, note 35.

44 Ibid., p.5.

45 Ibid., Item 3.7, p.4

46 (1995), 32 Imm. L.R. (2d) 135 (F.C.).

47 Supra, Note 44.

48 Ibid, p.5, bull et 3.

49 Ibid, p.2, para. 3.

50 Supra, note 46.