Category: All Countries

Categories
All Countries Mexico

2020 RLLR 165

Citation: 2020 RLLR 165
Tribunal: Refugee Protection Division
Date of Decision: September 17, 2020
Panel: Elise Escaravage
Counsel for the Claimant(s): Robert J Hughes
Country: Mexico
RPD Number: VB9-07141
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000191-000194

DECISION

[1]       MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX XXXX XXXXakaXXXX XXXX or the claimant, a citizen of Mexico who is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act the IRPA.

[2]       In rendering my reasons, I have considered and applied the Chairpersons Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution as well as the Chairperson’s Guideline 9 proceedings before the IRB involving SOGIE throughout the hearing and in my decision.

[3]       This claim was heard as part of the remote hearing pilot project via video conference on a secured platform called Microsoft Teams. Ali of the parties present, the claimant, the interpreter, counsel, and myself confirmed that we were alone in our respective location and that we could see and hear the parties clearly.

Allegations

[4]       The claimant detailed her allegations in her basis of claim form which can be summarized as follows. The claimant alleges fear of persecution at the hands of state authorities in Mexico on account of her membership in a particular social group as a transgender woman.

Decision

[5]       I find that the claimant is a Convention refugee pursuant to Section 96 of the IRPA as she has established facing a serious possibility of persecution on account of her gender identity as a transgender woman if she returns to Mexico.

ANALYSIS

Identity

[6]       I find that the claimant’s identity as a national of Mexico has been established by her testimony and the supporting documents provided. Notably a certified copy of her passport at Exhibit 1.

Credibility

[7]       I find the claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. She did not embellish or exaggerate her claim and was forthcoming when answering my questions even if it did not benefit her claim. She admitted for example that she had not been victim of persecution herself as a transgender woman so she could only speak to what she had learned on the media about the treatment of other transgender women in Mexico. Moreover, I find that the series of photographs she submitted along with support letters and a medical report from her doctor in Canada to corroborate her allegations.

Well-Founded Fear of Persecution

[8]       The claimant testified that she did not feel as a boy for as long as she can remember. At the age of XXXX she was sent away to Tampico, Tamaulipas to go to school. She believes that her parents sent her three hours away from home because they did not agree of her feminine ways and different behavior. To this day her family still refuses to acknowledge her gender, her mother continues to refer to her as him or he and uses her name as at birth XXXX. The claimant has suffered significant hardship throughout her life, including bullying, intimidation, sexual abuse as a child and discrimination in the workplace as an adult. She began her journey to transition at the end of 2018, she was working at the time as an XXXXat XXXX, external to XXXX in Monterrey, Nuevo León. When her boss received her doctor’s note explaining her leave of absence, he spread the news around the company about her gender transition. The claimant suffered severe repercussions, including bullying and intimidation by co-workers and her boss for transitioning to become her real self. Although the claimant started to use the pronouns, she/her only three months ago after starting hormonal treatments in Canada, she has always felt as a woman. The claimant fears to be humiliated, discriminated against, assaulted, or even killed if she return to Mexico as a transgender woman.

[9]       According to the objective evidence that counsel submitted at Exhibit 4, Mexico is said to be the deadliest country in the world after Brazil for transgender persons. Perpetrators of violence, torture, and murder of transgender persons in Mexico benefit from great impunity as most murders go unsolved and are unpunished. As corroborated in the Human Rights Watch report Item 2.3 of the NDP and the SOGIE compilation Item 6.1, the agents of persecution include state authorities and the judiciary system that uses vague legislations to incriminate transgender persons. Transgender women in particular are painted as-, by politicians and policymakers as paedophiles or as a danger to public order. In sum, the objective evidence overwhelmingly points to systemic persecution against transgender persons in Mexico, particularly transgender women which manifests itself in ail spears of society and is perpetrated with impunity by civilians, state authorities, political figures who incentivize hate against transgender persons and members of the judiciary system who manipulate the law to incriminate them. For these reasons I find that the claimant has established an objectively well-founded fear of persecution if she returns to Mexico.

State Protection

[10]     I find that it would be objectively unreasonable for the claimant to seek the protection of the State in this particular case. There is ample objective evidence painting to state authorities, politicians, and policymakers as well as judges and members of the judiciary system as being part of the agent of persecution who persecute, incriminate, torture, and kill transgender persons in Mexico. As such I find that there is clear and convincing evidence that the State is part of the agents of persecution along with civilians who benefit from great impunity. It would not be reasonably forthcoming for the claimant to seek state protection where the State is the agent of persecution. For this reason, I find that the presumption of adequate state protection has been rebutted.

Internal Flight Alternative or IFA

[11]     I have examined whether a viable IFA exists for the claimant. As mentioned above, I find that the State is part of the agents of persecution in this case. The State has effective control throughout the country and there have been accounts of judges using their legislation to incriminate transgender persons as indicated at Item 6.1 of the NDP. As the IFA test fails on the first prong of the test, I find that there is no viable IFA available to the claimant. Consequently, I find that the claimant faces a serious possibility of persecution throughout Mexico.

CONCLUSION

[12]     In light of the proceeding, I conclude that the claimant is a Convention refugee pursuant to Section 96 of the IRPA; accordingly, I accept her claim.

———- REASONS CONCLUDED ———-

Categories
All Countries South Korea

2020 RLLR 164

Citation: 2020 RLLR 164
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: Becky Chan
Counsel for the Claimant(s): (no information available)
Country: South Korea
RPD Number: VB9-05340
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000186-000190

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER:  This is the decision of the Refugee Protection Division in the claim for refugee protection of XXXX XXXX XXXX a citizen of South Korea who claims refugee protection pursuant to Sections 96 and 97 [1] of the Immigration and Refugee Protection Act.

[2]       I have considered the evidence in this case and I am ready to render my decision orally. Written reasons will be sent to you and your Counsel and the written version will be a transcript of what I am saying now.

[3]       I have considered and applied the Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression. I find that you are a Convention refugee as you have a well-founded fear of persecution in South Korea.

[4]       I will summarize your allegations as follows. You fear persecution in South Korea based on your sexual orientation and your gender identity as a bi-sexual transmasculine person. Your assigned gender at birth was female. You are non-binary and you express yourself as masculine. You are attracted to both males and females.

[5]       You disclosed your sexual orientation to your mother at age XXXXorXXXX XXXX. She attempted to kill you and herself first with a kitchen knife and later by jumping off a building you lived in. Both of your parents have rejected you by reason of your sexual orientation and gender identity.  You spent a great deal of time outside of South Korea while you were growing up. You studied in Thailand and the United States. You completed your university studies in Chicago. You travelled to and remained in South Korea during your breaks from school.

[6]       Beginning in 2012 you started hormone replacement therapy and you have been taking testosterone injections since. You physical appearance changed over time and became more masculine as the hormone replacement therapy progressed. You have had romantic and sexual relationships with males and females. You have been in a common-law relationship with a person who identifies herself as pansexual named XXXX (phonetic) for seven years. You lived together in the United States. She is a citizen of Bhutan.

[7]       You face discrimination in employment in South Korea because you are transgender. You physical appearance does not match your assigned gender on your identity document which states that you are female. You encountered sexual harassment and discrimination at work. You also encountered ridicule from medical staff when you sought health care in South Korea.

[8]       You fear that you will continue to endure such a significant level of discrimination that you will not be able to secure employment, access to health care services and to be able to live openly as a transmasculine bi-sexual in South Korea with a basic level of dignity.  You lived for a number of years in the United States on a student visa. When your student visa expired you came to Canada on XXXX XXXX XXXX 2019 and made a refugee claim in XXXX 2019.

[9]       I find that you have established your identity as a citizen of Korea through copies of two of your passports in Exhibit 1. I find that you have provided a significant amount of evidence to establish your gender identity and sexual orientation as a transmasculine bi-sexual. Your passport indicates that your assigned gender if female. A West Coast medical imagining has provided a copy of your pelvic ultrasound in Exhibit 4 at page 1. This corroborates your assigned gender and the documented West Coast medical imagining further corroborates that you are on testosterone therapy.

[10]     You provided numerous letters from many different people you have known through different stages of your transition corroborating your gender identity and your sexual orientation, in Exhibit 4. Many of the authors of these letters identify themselves as sexual minorities. You have corroborated your relationship with XXXX (phonetic) through her letter and her sister’s letter as well as a lease showing that you lived together in Chicago. These documents are in Exhibit 4.

[11]     You provided evidence of your connections with transgender friends in Vancouver and other places. As well as your involvement in the LGBTQ community in Vancouver you have been involved in Rainbow Refugee in Vancouver and the I Belong group an LGBTQ group that is part of a mosaic, a local organization that supports immigrants.  You have also been involved in the local organization called Pride and Art society which organizes the queer arts festival and other events.     I find that you have established that you are transmasculine bi-sexual.

[12]     I find that the fear you face sorry — I find that your fear of societal discrimination and harassment is corroborated by the country condition documents.      Documents in your disclosure in Exhibits 4 and 5 as well as documents in the National Documentation Package demonstrate that transgender persons face a serious level of discrimination in employment, access to health care and various facets of life in South Korea.

[13]     One of the significant hurdle faced by a transgender persons is Korea is the difficulty in legally changing your assigned gender on your national identity documents. The Response to Information Request on the treatment of transgender people, NDP Item 6.2 as well as the Kaleidoscope report NDP Item 6.2 talk about this. While it is possible to change one’s gender legally the requirements have been described by the report of the Kaleidoscope Human Rights Foundation NDP Item 6.1, as being incredibly complex discriminatory and restrictive.

[14]     In 2006 Supreme Court decision gave transgender persons in South Korea the right to be recognized according to their preferred gender. However the Supreme Court drafted a number of restrictive guidelines on when legal change of gender can occur. A transgender person could be recognized according to their preferred gender if the following conditions exist.    The person is an unmarried Korean citizen over 19 years of age with no minor children; has suffered from continued gender diaspora and has the sense of belongingness to the opposite due to being transsexual; after having undergone psychiatric treatment or hormone therapy still wish to receive surgical treatment and alter his or her physical appearance including external genitalia through sexual reassignment surgery; has become sterile as a result of sexual reassignment surgery with zero or extremely remote possibility that they will return to their former gender; does not show indications that he or she filed the application for the purpose of committing a crime or abating the law; and has parental consent. The Response to Information Request also states that sources say that recognition of gender reassignment is only possible after gender reassignment surgeries and sterilization.

[15]     You have indicated that you do not wish to have surgery due to the invasive nature of the procedure and the many risks associated with the procedure. Another impediment you face in having your gender legally reassigned is that you would not be able to secure parental consent. Neither of your parents would be supportive of your petition for gender reassignment. You have no contact with your father at all. You have contact with your mother but she does not accept your sexual orientation or gender identity. You would not likely be able to change your gender assigned legally in South Korea. The test outlined by the court is highly onerous as it requires you to undergo medical procedures against you will including sexual reassignment surgery. I find that this requirement is in itself persecutory.

[16]     Individuals who cannot obtain a legal change of gender are by extension unable to change their gender on their identity documents. In South Korea all persons are issued a national identity card which is essential for securing employment, shelter and various governmental services. Each persons’ national identity number reveals their date of birth and their gender. The identity number is an all purpose lifetime number. It prevents transgender person who do wish to — it prevents persons who do not wish to reveal their gender identity from using legal documents in most areas of society including the labour market, medical institutions and financial institutions.

[17]     I find that you will face a significant level of stigmas in South Korea as you have in the past if you are identified as a female on your identity documents but you present as a male. You have documented the discrimination you face in securing and maintaining employment in South Korea in your Basis of Claim form and the sources in the country condition documents corroborate that the transgender person experience discrimination related to employment in the similar manner that you have.

[18]     According to the Kaleidoscope Foundation report, the LGBTI community continues to suffer significant degree of stigma, abuse, harassment and discrimination.  Marriage of same sex couples remains illegal. The same report states that transgender persons experience physical harassment and assault including rape.

[19]     I find that your fear of persecution has a nexus to a Convention ground of membership in a particular social group as a transmasculine bi-sexual. I find that the level of discrimination you would face in employment, accessing health care and other services as well as the threat of harassment and violence is sufficiently serious to be persecution. You cannot live openly as a transmasculine bi-sexual in Korea without facing a serious possibility of persecution.

[20]     I find that the presumption of state protection has been rebutted by clear and convincing evidence. There is very little legal recognition and protection of the rights of sexual minorities in general in Korea.

[21]     According to the US Department of State report, NDP Item 2.1, no law specify punishment for persons found to discriminate against lesbians, gay, bi-sexual, transgender or intersex persons or provide remedies to victims of discrimination or violence based on sexual orientation. I note also that the military criminal act criminalizes consensual sex between men in the military with up to two years of imprisonment.

[22]     According to the Kaleidoscope Foundation document there is an absence of any anti- discrimination laws to protect LGBTI persons resulting in a failure to protect against widespread discrimination in a range of areas such as employment and health care. The government has failed to provide access and acceptable processes for individuals to legally choose their gender without discrimination or violation of their human rights. The government does not recognize same sex relationships. There is also lack of protection for same sex couples with respect to domestic violence and a lack of equal protection for sexual minorities with respect to sexual assault.

[23]     I find that state protection is not available to you in South Korea.

[24]     I also find that there is no viable internal flight alternative for you in South Korea. There is no objective evidence that a particular part of South Korea would be more safe for you as a transmasculine bi-sexual. I find that you would face a serious possibility of persecution throughout the country.

[25]     For the foregoing reasons I find that you are a Convention refugee and I therefore accept your claim.

— PROCEEDINGS CONCLUDED

Categories
All Countries Colombia

2020 RLLR 163

Citation: 2020 RLLR 163
Tribunal: Refugee Protection Division
Date of Decision: January 4, 2020
Panel: Doug Armstrong
Counsel for the Claimant(s): (no information available)
Country: Colombia
RPD Number: VB9-04639
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000178-000185

— DECISION AND REASONS BY THE MEMBER

PRESIDING MEMBER:

Reasons for decision

Introduction

[1]       I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. A written form of these reasons will be sent to you and your counsel. It will be a transcript of what I am saying now.  The written reasons may be edited for generally readability and references to the applicable case law and the documentary evidence may also be included.

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

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

Allegations

[4]       You allege that you are a transgender female, where you were born with male sex organs but you identify since 2014 as a woman and you face persecution in Colombia for this reason.

[5]       In 2014, you along with other trans women in Bogota were pressured to smuggle items into prisons and you were beaten when you refused.

[6]       You moved to Tulua and you experienced discrimination there. You were fired from your job in XXXX 2014 when you went to work dressed as a woman.

[7]       In XXXX 2015 you were insulted, beaten and injured in Bogota when you were dressed as a woman and you often experienced verbal abuse.

[8]       You believe there is little effort by the government to protect trans people from discrimination and persecution. You fear persecution if you return to Colombia.

Determination

[9]       I find that you are a Convention refugee as you have established that you face a serious possibility of persecution for reason of your being a transgender woman.

Analysis

Identity

[10]     I find that your identity as a national of Colombia is established by your testimony and the supporting documentation filed, including certified copies of your passport and identity card in Exhibit 1.

[11]     You testified that you prefer to be known as XXXX although you have no identity documents in that name.

Credibility

[12]     I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[13]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness and the reference there is to Maldonado.

[14]     I find that you have established on a balance of probabilities that you are a transgender woman.

Objective basis of future risk

[15]     Based on your credible allegations in testimony and the documentary evidence set out below, as well as the country condition evidence, I find that you have established that you face a serious possibility of persecution by reason of your being transgender if you were to return to Colombia by both state and non-state actors.

[16]     You testified that you have always been attracted to women and you started feeling like a woman yourself in 2013 or 2014. You felt like and lived as a woman from 2014 until you left to come to Canada in 2018, except that the last six months you lived as a man in Colombia in order to be able to work and make money. You saved the money to come to Canada.

[17]     You explained that you prefer to live as a woman and you plan to make a physical transition from male to female, although you have not started that physical transition yet.

[18]     You’ve explained that it was complicated to live as a trans woman in Colombia. You lived for about a year with a group of seven other trans woman in Bogota who operated a XXXX XXXX but they also smuggled items into the prisons and they pressured you to do the same. You refused to do that and they beat you up.

[19]     You got a job in your profession of XXXX XXXX in XXXX 2014 and in XXXX 2014 you began going to work dressed as a woman. You testified that your boss began to treat you strangely and make new demands that he would not normally require. You were fired from the job within a month of starting to dress as a woman. You believe that you were fired from this job because you’re transgender and you attempted to live as a woman openly.

[20]     You moved to Tulua in XXXXorXXXX XXXX 2015 but you were not able to find work in your civil engineering profession. You moved back to Bogota in XXXXor XXXX 2016.

[21]     You also testified that you have experienced verbal aggression, name-calling and you’ve been physically assaulted and injured in Colombia all because you are living as a trans woman.

[22]     You think the safest place to be able to live in Colombia is Bogota but you don’t believe you can live safely even there because of the fear of aggression, assault and not being able to work as a woman.

[23]     You testified that Colombia has a closed culture in terms of opinion and sexual orientation.

[24]     Your fears relating to the risks you face if you live openly as a transgender woman in Colombia are corroborated by documents in the NDP, that’s the National Documentation Package for Colombia, the March 29th, 2019 version.

[25]     I’ve considered the documentary evidence on the treatment of sexual minorities in Colombia. The legal framework for the protection of rights of sexual minorities is relatively progressive; however, in practice SOGIE individuals face significant discrimination in many facets of life and violence from society at large.

[26]     The legal protections that exist for sexual minorities are outlined in a Response to Information Request, or RIR, on the treatment of sexual minorities, which is NDP item 6.3.

[27]     NDP item 2.1 from the US Department of State says in part:

“Transgender individuals cited barriers to public services when health care providers or police officers refused to accept their government-issued identification. Some transgender individuals stated it was difficult to change the gender designation on national identity documents —

INTERPRETER: Sorry, can you repeat again after what you said about health service providers?

PRESIDING MEMBER: Or police officers.

INTERPRETER: Pardon me. Thank: you.

PRESIDING MEMBER: Okay.

“Some transgender individuals stated it was difficult to change the gender designation on national identity documents and that transgender individuals whose identity cards listed them as male were still required to show proof they had performed mandatory military service or obtained the necessary waivers from that service.”

[28]     NGOs or non-governmental organizations claimed discrimination and violence in prisons against persons due to their sexual orientation and gender identity remained a problem.

[29]     Despite government measures to increase the rights and protections of lesbian, gay, bisexual, transgender and intersex, or LGBTI persons, there were reports of societal abuse and discrimination as well as sexual assault. NGOs claimed transgender individuals, particularly transgender men, were often sexually assaulted in so-called corrective rape.

[30]     The constitutional court pronounced in 2016 that transgender persons faced discrimination and social rejection within the LGBTI community and recommended measures to increase respect for transgender identities in the classrooms. That report also says that NGOs reported several cases of threats against LGBTI human rights defenders as well as a high level of impunity for crimes against LGBTI persons. Such organizations partially attributed impunity levels to the failure of the Attorney General’s Office to distinguish and effectively pursue crimes against LGBTI persons.

[31]     NDP item 1.7, the UNHCR Eligibility Guidelines also refers to some serious levels of discrimination against SOGIE individuals:

“Individuals of diverse sexual orientations and/or gender identities, SOGIE, are victims of discrimination. Social movements demanding the recognition of the rights of gay men and lesbians have progressively made important though insufficient progress, including the recognition of the inheritance rights of same-sex couples, same-sex marriage and adoption by couples of the same sex.

Paradoxically, simultaneously with the advancement in terms of recognition of the rights of these individuals, violent incidents seem to have increased. Persons of diverse sexual orientations  and/or gender identities  have reportedly been exposed to torture in detention and to police violence. Furthermore, authorities often do not initiate investigations into cases of homicide and sexual violence against persons of diverse sexual orientations and/or gender identities.

A SOGIE rights organization in Colombia, Colombia Diversa, has recorded and verified 550 cases of homicide related to sexual orientation and/or gender identity in the period 2009 to 2014, including among the victims at least 86 transgender women and at least 18 SOGIE rights defenders.”

[32]     That report also says that particularly with respect to armed groups:

“NGOs have said that armed groups have imposed on persons of diverse SOGIE widely accepted gender roles by threatening to use violence as a punishment for not conforming. Some NGOs have also reported that the punishments perpetrated by guerilla groups, members of paramilitary groups including inter alia threats, assassinations, forced disappearances, grave physical and psychological harm and, above all, forced displacement of lesbian, gay and transgender persons.”

[33]     The Colombia LGBTI Report at NDP item 6.4 states at page nine that:

“Violence against LGBTI Colombians is pernicious and widespread. While there is no official government data that captures it, activists and individual accounts suggest a reality in which violence against LGBTI people permeates every sector of society: schools and universities, public places and city streets, families and communities.”

Nexus and nature of the harm

[34]     I find that your fear of persecution has a nexus to the Convention ground as a member of a particular social group as a transgender person.

[35]     The harm that you fear is serious.  The documentary evidence as well as your testimony indicates that violence against SOGIE persons in particular and transgender people is quite widespread and conducted with impunity.

[36]     As well, the level of discrimination by society at large is severe, particularly with respect to people who are transgender.

[37]     I find based on all of the evidence before me that you face a serious possibility of persecution for reason of being a transgender woman if you return to Colombia.

State protection

[38]     I have also considered whether state protection is available to you in Colombia. I find that adequate state protection would not be reasonably forthcoming in this particular case. You testified that you did not seek help from the police after the assaults and aggression that you experienced because you’ve been told that many trans women are mistreated by the police. You have not been mistreated by the police yourself but you know of other trans women who have been mistreated.

[39]     I find that the documentary evidence on the treatment of sexual minorities indicates that crimes against SOGIE people is done with impunity. The US Department of State Report, item 2.1 in the NDP says that:

“As of September 18th, the Attorney General’s office was investigating at least two alleged homicides of LGBTI individuals. Investigations into crimes committed by the security forces did not appear in the Attorney General’s office system. NGO Colombia Diversa reported six cases involving eight victims of police abuse of persons due to their sexual orientation or gender identity with the majority of complaints coming from transgender individuals.”

[40]     So, there is evidence that the authorities themselves are responsible for the abuse of persons for their sexual orientation or gender identity.

[41]     The UNHCR Guidelines at item 1.7 in the NDP states that state authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientation and gender identity. This document also notes at page 51:

State authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientations and/or gender identities. In its report for the Committee Against Torture, Colombia Diversa recorded 212 incidents of police violence in the period 2008 to 2014. Moreover, police reportedly often failed to acknowledge the existence of prejudice as the primary cause of violent incidents against person of diverse sexual orientations and/or gender identities. In some cases such incidents are reportedly classified as personal violence having been caused by the behaivour of the victim. Individuals of diverse SOGIE are not included among the profiles identified by the government as specifically at risk of violence or harm and therefore are not eligible for special protection.”

[42]     I find that the level of protection provided by the state in Colombia falls far short of being adequate given the impunity with which crimes against SOGIE individuals are treated and as well as recurring reports of police being involved in the abuse of these groups.

Internal flight alternative

[43]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Colombia. I find that as a Colombian national who is transgender there is nowhere you could reasonably live safely in Colombia. The discrimination against someone like you would be severe and you face a serious possibility of persecution throughout the country.

Conclusion

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

[45]     Thank you for attending today and I wish you good luck.

—PROCEEDINGS CONCLUDED

Categories
All Countries Kenya

2020 RLLR 162

Citation: 2020 RLLR 162
Tribunal: Refugee Protection Division
Date of Decision: November 12, 2020
Panel: Laura Lunasky
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB9-30268
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000152-000155

DECISION

[1]       MEMBER: This is the decision for XXXX XXXX XXXX, file number TB9-30268. I’ve considered your testimony and the other evidence in your case and I’m ready to render a decision orally. You claim to be a citizen of Kenya. You are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

Determination

[2]       For the reasons that follow, I find that you are a Convention refugee on the grounds of membership in a particular social group as a bisexual man.

Guidelines

[3]       In deciding this claim, I have considered and applied the chairperson’s sexual orientation and gender identity expression guidelines.

Allegations

[4]       Your allegations are found in your Basis of Claim form at Exhibit 2. To summarize, you allege that you face persecution at the hands of the state due to your sexual orientation.

Identity

[5]       I find that your identity has been established on a balance of probabilities by your testimony and the certified copy of your Kenyan passport at Exhibit 1.

Nexus

[6]       I find that there is a clear nexus between your fear and the Convention ground of membership in a particular social group as a bisexual man. I find that the test under s. 96, whether there was serious possibility of persecution should you return to Kenya, is met.

Credibility

[7]       I find that you were a credible witness and I, therefore, accept your testimony and the statements you’ve made in your Basis of Claim. Your testimony was straightforward, very detailed, spontaneous, and mostly consistent with your Basis of Claim. I accept your explanation for the inconsistency in your testimony about the co-workers who saw you with another man in a party and outed you at work. I accept that you may have confused who said what at your two different workplaces. I accept that when asked about work, you focused on your later workplace and the co-worker who outed you there, as that was a more significant experience for you as you lost that job.

[8]       You were able to provide detailed and credible testimony about your relationship with your current same­ sex partner, XXXX (ph), without any attempt to embellish. You were able to provide details about him and his life. You were able to provide details about your life as a bisexual man in Kenya, including the LGBTQ networks there and the negative experiences you had when you were outed at work.

[9]       I also accept your explanation for the delay in leaving Kenya, that you’ve had a career there and you wanted to make it work. I accept your explanation for your delay in claiming, that you were originally planning to ask for permanent resident status on a spousal sponsorship before that relationship broke down and how you learned about refugee protection from your friend, XXXX (ph), just before you claimed. I note that you made a claim soon after learning of this option and within two months of separating from your former spouse.

[10]     You testified credibly about your fear should you return to Kenya, that you would be detained or harassed by police or even killed. I, therefore, find it credible that you face a serious possibility of persecution from the Kenyan State. You’ve also provided several documents in support of your claim, including several detailed letters of support from your friends, former same-sex partner, XXXX (ph), and family members in Kenya, and a letter from your current partner.

[11]     Since you have provided credible testimony as well as the corroborating documentation, I find that you have established on a balance of probability that you are bisexual. Accordingly, I find that you have established a subjective fear of persecution on a balance of probabilities.

Objective Basis

[12]     I find that your fear of persecution has an objective basis. Items 2.3 and 6.1 of the National Documentation Package for Kenya state that sexual acts between people of the same sex are illegal and may be punished with imprisonment of up to 14 years under the laws of Kenya. The penal code criminalizes carnal knowledge against the order of nature, which was interpreted to prohibit consensual same-sex sexual activity and specifies a maximum penalty of 14 years imprisonment if convicted. Item 2.1 further stipulates that a separate statute specifically criminalizes sex between men and specifies a maximum penalty of 21 years imprisonment if convicted.

[13]     The Freedom House report at Item 2.3 states that members of the LGBT community continue to face discrimination, abuse and violent attacks. The UN Committee of Economic, Social and Cultural Rights at Item 2.4 of the National Documentation Package has noted that lesbian, gay, bisexual, transgender, and intersex persons are stigmatized and socially excluded, as well as discriminated in gaining access to social services, particularly healthcare services.

[14]     Since I have found you have — you to have a subjective fear and an objective basis for that fear, I find that you have established that you have a well-founded fear of persecution.

State Protection

[15]     I find that you have established that there’s inadequate state protection available to you in Kenya as same-sex sexual acts are considered criminal and that the state authorities are the agents of persecution. I therefore find that you have provided clear and convincing evidence that the Kenyan state is unwilling and unable to provide adequate state protection.

Internal Flight Alternative

[16]     I have also considered whether there is a viable internal flight alternative available to you. I find that you face a serious possibility of persecution throughout the country given that same-sex relations are illegal.

[17]     Based on the totality of the evidence, I find that you have established a well-founded fear of persecution in Kenya because of your membership in a particular social group being a bisexual man. Accordingly, I find you are a Convention refugee.

[18]     Your claim is accepted. Thank you.

CLAIMANT: Thank you so much.

COUNSEL: Thank you.

MEMBER: All right, so that concludes our hearing for today and I will go off the record.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Nigeria

2020 RLLR 161

Citation: 2020 RLLR 161
Tribunal: Refugee Protection Division
Date of Decision: December 17, 2020
Panel: Zhanna Perhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: TB9-25939
Associated RPD Number(s): TB9-26027, TB9-25982, TB-26025, TB9-26026, TB9-26024
ATIP Number: A-2022-00210
ATIP Pages: 000147-000151

DECISION

[1]       MEMBER:    This is a decision for XXXX XXXX XXXX, file number TB9-25939, the principal claimant, his wife, the associate claimant, and their children the minor claimants.

[2]       I’ve had an opportunity to consider your testimony, examine the evidence before me, and I’m ready to render my decision orally. The claims were heard jointly in accordance with Rule 55. The principal claimant was appointed designated representative for the minor claimants.

[3]       You claim to be citizens of Nigeria save your daughter XXXX, the minor claimant, who is claiming to be a citizen of the U.S. You’re claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       I find that all the claimants but the minor XXXX XXXX who is the U.S. citizen, are Convention refugees, as you have established that you face a serious possibility of persecution based on a Convention ground. For the principal claimant it is religion and for the associated minor claimants it is a particular social group as family members. With respect to your United States born daughter XXXX, however, there were no allegations raised with respect to persecution in the United States. I find that she is not a Convention refugee nor a person in need of protection. The reasons are as follows.

[5]       The allegations of your claim can be found in the principal claimant’s original and updated basis of claim forms in Exhibit 2 and 8. In summary, you, the principal claimant, allege persecution on the grounds of religion who as a Christian is unwilling to adhere to the traditionalist approaches of Ogboni Tubalasai (phonetic) cult which your family on your father’s side has practiced for many generations. You as the eldest son were first persuaded and then threatened and attacked alongside your family members to take up the chieftaincy title and continue the family tradition. The associated minor claimants, save the youngest U.S. born one, fear your family and the Ogboni cult as well, as they were threatened and attacked along with you as your family members. Your daughter who has a U.S. citizenship will be safe in the United States as no allegations were raised against it.

[6]       I find that your identities as nationals of Nigeria and for the minor claimant XXXX as a citizen of the U.S. have been established on a balance of probabilities through your testimony and through the supporting documents found in Exhibit 1. I find no reason to doubt the authenticity of those documents.

[7]       In terms of your general credibility, the principal and associate claimant you both testified today, I have found you to be credible witnesses. There were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. I also find that there were no embellishments made within your testimony. All the minor inconsistencies were explained either by you or in the submissions by your counsel. Therefore, I accept what you have alleged in support of your claim, including the following.

[8]       The principal claimant you were born to a family of an Ogboni chief. The traditionalist religion was a part of your father’s family for generations. Your mother and your siblings were not supporting the secretive traditionalist cult and you all were practicing Christianity. At his death bed back in 2013 your father confided in you and warned you against joining the Ogboni Tubalasai cult. You, the principal claimant, disobeyed the other Ogboni members and buried your father at your family’s burial plot which made the Ogboni very angry. In addition, during the meeting following your father’s death where you and your siblings were summoned you were given instructions on joining the cult to continue your father’s work as a chief. You declined, and although you were threatened you were given a year to consider, prepare, and respond positively.

[9]       At the one year anniversary of your after’s death you and your family returned to the village and (inaudible) the eiders of the Ogboni cult. You did not seeing their demands were still up but they met you with hostility and at night attacked you and your family at your father’s house. They wanted to force you to swear the oath but you were saved by your friends. You left the village right away, travelled back to Lagos, and the following day went to report the attack to the police, who did not provide any protection as it was called a family issue. In addition, you had to seek medical attention for one of your children as he was injured during the attack.

[10]     During 2014-2017 the position was to be filled. You were threatened regularly as the position of the XXXX XXXX was to be filled only by you, the principal claimant. The Ogboni members were looking for you for all these years. They called you regularly. They threatened you regularly. They were able to locate you in XXXX 2017 as they came to your residence in Lagos and tried to persuade you to take up the chieftaincy. Because you refused you feared that you could be attacked again.

[11]     You took your family to your mother’s house in Ogun State but you couldn’t stay there long. For the safety of your wife and children you moved them to your wife’s sister’s house in Lagos where they stayed until you were ready to leave Nigeria. You left Nigeria in XXXX 2018 with your family and you stayed in the U.S. until XXXX XXXX2019, came to Canada in XXXX 2019 to claim asylum here.

[12]     In support of your claim you provided documents in Exhibits 6 through 11, including affidavits from your friends, mother, sister, your wife’s sister, a letter from Ogboni chief which dates back to 2013, death certificates of your father and your elder brother, and other documents. I was notable to give some of these documents full weight as there were some issues on the face of the document, in particular the affidavits from your mother and your sister, which did not coincide with the information in the NDP, in particular Item 9.2. In his submissions your counsel spoke on the issues with the documents that I had. The counsel turned my attention to the cultural differences between Canada and Nigeria. In addition, he presented new evidence that apparently is not yet present in the NDP about the Nigerian Bar Association. In particular, he gave the decision of the Supreme Court of Nigeria from 2015 which says that not having the MBA does not necessarily invalidate the document.

[13]     Having considered all the facts and submissions of your counsel, I was able to give full weight to all the documents before me, as they corroborate your written and oral testimony. I find on a balance of probabilities that you are credible witnesses. I am therefore satisfied that you have established your subjective fear.

[14]     The overall objective evidence supports your claims for Convention refugee protection. The national documentation package for Nigeria November 30th 2020 found in Exhibit 3 and the country conditions evidence submitted by your counsel in particular in Exhibits 6, 7, and 8, the NDP characterizes the Ogboni cult as a secret society or secret cult or even a criminal organization. It operates predominately in the Yoruba communities in the southwest according to the NDP Item 1.3. Although it is considered to be in decline the organization still has the capacity to locate former members anywhere in the country. According to the NDP membership though is generally voluntarily but not always especially for individuals with a close history of or personal knowledge about the cult. This is Item 1.13. Revealing information on Ogboni rituals can put individuals’ life at risk in the same item.

[15]     The principal claimant’s experiences with the cult are consistent with this evidence. Although, principal claimant, you were nota member of the cult, I find that you were closely connected to the cult through your late father and that you knew enough about their rituals and they were seeking to make you a XXXX XXXX of the cult and you refused to become a chief and that put your life at risk.

[16]     In addition to this information in the NDP, you also submitted some articles to the RPD in Exhibit 6 about incidents involving the Ogboni cult in Lagos State in particular where Ogboni threatened and killed those who refused the ritual. In his submissions your counsel also pointed out to the same Exhibit 6 and turned my attention that there is evidence that Ogboni operates not only inside but outside Nigeria and they have presence all over Africa.

[17]     Overall the objective country condition evidence supports the conclusion that you the principal and the associate claimant and your children, save your daughter the U.S. citizen, have an objective basis for your claim.

[18]     In order to establish that you are Convention refugees you must also prove that you do not have state protection and you cannot be adequately protected by the Nigerian police if you return to Nigeria. Based on both your evidence and on the evidence in the NDP I find that you will not have adequate state protection in Nigeria.

[19]     Principal claimant, you stated in your narrative and in your testimony that you tried to turn to police for protection but you did not receive any. The police did not want to interfere into what they believed was a family matter. The NDP addresses this issue of police protection for people who refuse to participate in ritual practices, in particular Item 10.8. It states that although protection ought to be available according to the constitution of Nigeria and legislation these laws are not always implemented in practice and that people who refuse ritual practices cannot necessarily rely on police to protect them. Officers are often part of the committee practicing the traditions and sympathetic to those communities and bribes may be required to secure some level of protection.

[20]     Taking all of this evidence into account I find there is clear and convincing evidence before me that you the claimants would not have adequate state protection against your agents of persecution in Nigeria.

[21]     With regards to possible viable internal flight alternative in Nigeria, there is evidence, which I already quoted, in the NDP that if the Ogboni cult desires to and is able to locate people it targets them anywhere in Nigeria. Given the attacks and the threats that you the principal claimant have already faced in Nigeria I find that you and your family are a target of this cult.

[22]     You testified that anywhere you and your family relocate in Nigeria you will have to restart your business to provide financially for your family. For that purpose you will need to advertise, you will need social media, telephone. Given that Ogboni presence is evident in Nigeria they will be able to locate you through media, through advertising, on a balance of probabilities. I also find it is more likely than not that the Ogboni have access to mobile phones, to the internet, and they can use these tools to find people throughout the country.

[23]     Ali of these evidence and argument, including the NDP evidence about the cult, the articles submitted in Exhibit 6, the argument about the advertising, use of social media to locate people, and the NDP evidence about the prevalence of use of mobile phone in Nigeria as also submitted in Exhibit 6, leads me to conclude that you, the claimants, do not have an IFA in Nigeria and you face a serious possibility of persecution anywhere you go in Nigeria.

[24]     So having considered all of the evidence, I find there is a serious possibility that you, the principal and associate claimant, and your children, the minor claimants, would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act so I find you to be Convention refugees. Your claims are therefore accepted.

[25]     As to your daughter XXXX XXXX the U.S. citizen and the minor claimant, her claim is denied for Section 96 and 97.

———- REASONS CONCLUDED ———-

Categories
All Countries Hong Kong

2020 RLLR 160

Citation: 2020 RLLR 160
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2020
Panel: Roman Kotovych
Counsel for the Claimant(s): Ashley Erin Fisch
Country: Hong Kong
RPD Number: TB9-23881
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000144-000146

DECISION

[1]       MEMBER: XXXX XXXX, also known legally on her passport as XXXX XXXX requests refugee protection under Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The Claimant’s allegations are set out in her Basis of Claim form.

[2]       In summary she is alleged to be a male born, Hong Kong transgendered woman who seeks protection in Canada on the basis of her transgender identity. The claim also touched on elements of political opposition within Hong Kong which was on file which I did not address in my hearing and does not form a part of these reasons.

[3]       At the outset I noted the application of the SOGI guidelines to this claim. I also took steps to ensure that the Claimant’s transgender identity was respected to the best of my abilities.

[4]       I find, Ma’am, that you are a “Convention Refugee” and my [inaudible]. First on the issue [inaudible] on a balance of probabilities from the documents on file your persona) identity both in terms of your birth identity, your transition as well as your citizenship I am satisfied on a balance of probabilities that you maintain the status you do within Hong Kong.

[5]       You do not appear to have any permanent or citizenship status elsewhere including the United Kingdom. I find on this evidence that you have established your identity, your citizenship as well as your transition which was well documented on the file.

[6]       I find there to be a nexus of particular social group under Section 96.

[7]       I found you to be credible in your testimony as well as in the documentation. You testified in a straightforward manner. There were no relative inconsistencies or contradictions in your testimony.

[8]       As outlined at the beginning of the hearing my main issue in this case was the issue of discrimination and harassment stigma etc. rising to the level of persecution. There is documentary evidence as to the challenges faced by sexual and gender minorities in Hong Kong as well as the allegations outlined in your claim. My main concern — not concern.

[9]       My main legal issue to resolve and factual issue was, does the treatment in Hong Kong amount to persecution or is it harassment in society, discrimination in society. I find in your circumstances, particular circumstances that I am satisfied on a balance of probabilities that, yes, it does and that you would face a serious possibility of persecution in a forward-looking capacity returning to Hong Kong.

[10]     You outlined some of your fears of returning to Hong Kong and you testified as to your fears. I find cumulatively the challenges you would face in Hong Kong would amount cumulatively to persecution. They are likely to be repetitive. If you were to return, they could potentially escalate so it’s not simply one issue that you would face as a transgendered woman. It is the whole of what you have told me.

[11]     In particular I have found particularly compelling the issue of your marriage where you are married and your marriage would be at risk returning to Hong Kong on the basis of your transition which I find adds to that analysis I found compelling.

[12]     Your testimony as to denial of health; the potential denial of health care in Hong Kong which is not a Section 97 denial of shortcomings. It would be denial of health care applied in a persecutory manner based on your identity as a trans woman. It would also add to that persecutory element. Added to that you’ve testified as to your fear of potential physical harm or mistreatment both from authorities and from society as a whole.

[13]     I find all of these factors taken together rise to the level of possible persecution. Rise to the level of categorizing your claim as persecution and on a balance of probabilities rise to the level of you facing a serious possibility of harm returning to Hong Kong based on your identity as a transgendered woman.

[14]     This is backed up by the extensive documentation you provided, both persona) and country docs as well as some of the evidence in the Hong Kong and in NDP.

[15]     Now on the issue of state protection, I find there would be inadequate state protection for you in Hong Kong as it is in part the authorities that you fear in that country. I also note that the country is in a state of flux at the moment given its situation of protests and its relationship with China which while not potentially directly relevant certainly adds to the analysis of the adequate state protection in that country at the moment.

[16]     Similarly, the issue of internal flight alternative I can point to a situation in Hong Kong, both geographically and in terms of the control of Hong Kong where you could relocate withing Hong Kong to seek safety within Hong Kong and therefore I find that you would not have a viable internal flight alternative there.

[17]     So, for all the above reasons, I find you to have a well-founded fear of persecution under Section 96. For these reasons I find you to be a “Convention Refugee” under the Immigration and Refugee Protection Act I therefore accept your claim.

[18]     Congratulations and I wish you the very best of luck. Alright. Thank you all for your participation today. If there is nothing else, I wish you all a good afternoon. Stay safe and we are adjourned.

———- REASONS CONCLUDED ———-

Categories
All Countries India

2020 RLLR 159

Citation: 2020 RLLR 159
Tribunal: Refugee Protection Division
Date of Decision: February 4, 2020
Panel: Jack Davis
Counsel for the Claimant(s): Packialuxmi Vasan
Country: India
RPD Number: TB9-19705
Associated RPD Number(s): TB9-19057
ATIP Number: A-2022-00210
ATIP Pages: 000136-000143

REASONS FOR DECISION

Introduction

[1]       These are the reasons for the decision in the claims for refugee protection made by XXXX XXXX XXXXand XXXX XXXX XXXX. The claimants are both citizens of India and are living together in Canada as a same-sex common law couple.

[2]       The claimants testified in a straightforward manner, without any contradictions or inconsistencies when their testimony is compared to the written narratives contained in their Basis of Claim (BOC) forms. There were also no implausibilities.

[3]       Most significant, however, was the demeanour of the claimants at this hearing. Both claimants exhibited their love for each other in a physical manner that was quite evidently spontaneous and genuine. Their displays of emotion during the hearing occurred at points in the evidence where it was reasonable to expect same and again these displays were transparently honest.

[4]       Such being the case, I have no hesitation in accepting the claimants’ evidence as being most credible and trustworthy. They have provided, in their BOC narratives, quite a litany of difficulties that they experienced in India due to their sexual orientation, and I accept same as being the truth.

[5]       It is also worth noting that the claimants were able to submit various documents corroborating various aspects of their claim.1

[6]     The question before me, then, is whether or not, as a gay couple, the claimants face a serious possibility of persecution if returned to India.

Objective Basis

[7]       The documentary evidence that is before me indicates the following:

Human rights issues included reports of arbitrary killings; forced disappearance; torture; rape in police custody; arbitrary arrest and detention … Violence and discrimination based on religious affiliation, sexual orientation, gender identity, and caste or tribe, including indigenous persons, also occurred.2

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence … Some police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.3

Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow.4

[8]       The above documentary evidence would appear to indicate that a same-sex couple such as the claimants would indeed face more than a mere possibility of persecution if returned to India.

[9]       In September 2018, the Supreme Court of India struck down a provision that criminalized gay sex. Does this mean that now the claimants would not face a serious possibility of persecution if returned to India? The documentary evidence indicates the following:

LGBT groups in cities across the country have been celebrating the ruling as the “beginning of a new era”. But the reality for members of the LGBT community in rural India is different. They believe it will take a long time to change regressive attitudes towards them.5

LGBT activists say that despite the Supreme Court decriminalising homosexuality in 2018, members of the community still face discrimination. Speaking to the New Indian Express, C Moulee, founder of Queer Chennai Chronicles, said, Every queer person faces harassment. Section 377 may have been struck down, but it remains a judgment. It has not changed people’s mentality or out everyday lives.6

Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. Changing a law is one thing – changing deeply held mind-sets another … Many Indians are extremely socially conservative, going to great lengths to arrange marriages with the right families, of the right castes. Loved ones who try to rebel are often ostracized. Countless gays have been shunned by their parents and persecuted by society.7

On Thursday, conservative Christians, Muslims and Hindus, who often find themselves at odds with one another, blasted the ruling as shameful and vowed to fight it. “We are giving credibility and legitimacy to mentally sick people,” said Swami Chakrapani, president of All India Hindu Mahasabha, a conservative group.8

On September 6, the Supreme Court decriminalized same-sex relations in a unanimous verdict. Activists welcomed the verdict but stated it was too early to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.9

In September 2018, the Supreme Court ruled that the use of Section 377 of the Indian Penal Code to ban homosexual intercourse was unconstitutional. However, discrimination continues against LGBT (lesbian, gay, bisexual, and transgender) individuals, including violence and harassment in some cases.10

The Indian press agency Press Trust of India (PTI) reported in April 2019 that the Supreme Court dismissed a review plea seeking various civil rights for the LGBTQ community: The plea had sought civil rights of the [LGBTQ] community as part of the basic human rights and said that these rights were not addressed in the apex court’s judgement on Section 377 of the [penal code] which had criminalised consensual gay sex. It had sought recognition of their rights to same-sex marriages, adoption, surrogacy, IVF [in vitro fertilization] and directions so that the community can serve openly in the army, navy and air force. (PTI 16 Apr. 2019)11

Since the decriminalization [of same-sex sexual relations], there has been a surge of pro­ LGBT events and campaigns across India… Despite … small steps, there’s “still a need for acceptance” … “Many people still have the mentality that homosexuality is wrong,”

…. The change in law does mean “many lesbian and gay people are starting to disclose their sexuality to their parents … [b]ut there’s a double standard. Some people will accept having LGBT friends but they won’t accept their relatives who come out.12

… activists stated that it was “too early [after decriminalization of same-sex sexual relations] to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions” (US 13 Mar.

2019, 48). Similarly, Human Rights Watch states that “[t]he decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India … 13

ILGA’s 2019 report indicates that there is no protection for sexual minorities in India, either in the constitution, in terms of broad protection, in employment, against hate crimes, or against incitement…14

The attitude and behavior of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ about the violence, abuse and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons owing to bias or stereotypes… [q]ueer people’s trust in the police is further eroded by the frequency of their negative interactions with police, for instance, when attempting to register complaints regarding violence and other crimes against them at the hands of private individuals. The police’s refusal to file such complaints has a seriously detrimental impact on queer persons’ access to justice and redress.15

[10]       The foregoing evidence makes it clear that, while the striking down of Section 377 of the Indian Penal Code is clearly a step in the right direction, much remains to be done. The ruling does not, of and by itself, change the attitude of large segments of the Indian population. Regressive attitudes, shunning, violence, and harassment persist notwithstanding this Supreme Court ruling.

[11]     I therefore find that it is premature to find that the repeal of Section 377 constitutes a durable change in conditions in India such that a same-sex couple such as the claimant would not face more than a mere possibility of persecution. It is simply too early to make that determination. I am guided by the following jurisprudence:

[25]    I have concluded that the Board erred in law by not applying the proper test for a consideration of changing country conditions. I have also concluded that the Board, in finding that the changes in circumstances were of an enduring nature, made a finding which it could not possibly have made based on the evidence before it. In other words, this finding was made without consideration of the material before it.

[26]    In so concluding, I have adopted as the proper test of changing country conditions the one proposed by James Hathaway in The Law of Refugee Status, Butterworths, Toronto, 1991, at pages 200-203. Hathaway writes as follows:

First, the change must be of substantial political significance, in the sense that the power structure under which persecution was deemed a real possibility no longer exists. The collapse of the persecutory regime, coupled with the holding of genuinely free and democratic elections, the assumption of power by a government committed to human rights, and a guarantee of fair treatment for enemies of the predecessor regime by way of amnesty or otherwise, is the appropriate indicator of a meaningful change of circumstances. It would, in contrast, be premature to consider cessation simply because relative calm has been restored in a country still governed by an oppressive political structure. Similarly, the mere fact that a democratic and safe local or regional government has been established is insufficient insofar as the national government still poses a risk to the refugee.

Secondly, there must be reason to believe that the substantial political change is truly effective. Because, as noted in a dissenting opinion in Ruiz Angel Jesus Gonzales, “…there is often a long distance between the pledging and the doing…”, it ought not to be assumed that formal change will necessarily be immediately effective:

… there were free elections [in Uruguay] on March 1, 1985 that put an end to 12 years of military government. According to [the U.S. Country Reports], the reestablishment of democracy is complete. I may be permitted to express doubts that in a period of one or two years it would be possible to recover completely from the abuses of a military dictatorship. Good intentions may have existed, of course, but I refuse to believe that there were no chance mishaps.

The formal political shift must be implemented in fact, and result in a genuine ability and willingness to protect the refugee. Cessation is not warranted where, for example, de facto executive authority remains in the hands of the former oppressors:

The facts that there were “above board” elections in Peru in 1980-81, which sent members of various parties and factions to the parliament, does not prove that the applicant does not have a well-founded fear of returning to his country, which is still, as far as executive authority is concerned, a military dictatorship which tolerates no opposition. It is just another case of old wine in new bottles.

Nor can it be said that there has truly been a fundamental change of circumstances where the police or military establishments have yet fully to comply with the dictates of democracy and respect for human rights:

It was argued that the applicant need no longer be afraid of returning to his homeland as there has been a change in the government since he left. The applicant, however, adduced evidence to show that although the government has changed, members of the Peruvian police and armed forces are still violating human rights and as yet do not appear to be under control by the new government.

In other words, the refugee’s right to protection ought not to be compromised simply because progress is being made toward real respect for human rights, even where international scrutiny of that transition is possible. Two mid-1989 judgments of the Immigration and Refugee Board, relating to Poland and Sri Lanka respectively, demonstrate an appropriate concern to see evidence of the real impact of a formal transition of power:

…Solidarity calculates that the Communist Party directly or indirectly controls about 900,000 appointments…the nomenklatura casts its own shadow. In other words, changing the government does not [necessarily] change much. The panel is of the view that the claimant’s fear that the changes in Poland are still too uncertain is supported by the documentary evidence.

Although it is alleged that the scale of military confrontation between the Indian Peacekeeping Force and the Tigers has diminished in recent months, there is still an intense rivalry between the Tamil militant groups for the control of the territory and the population. We agree with the points made by counsel, that the normalization process has not yet achieved political stability and peace for Sri Lanka.

Third, the change of circumstances must be shown to be durable. Cessation is not a decision to be taken lightly on the basis of transitory shifts in the political landscape, but should rather be reserved for situations in which there is reason to believe that the positive conversion of the power structure is likely to last. This condition is in keeping with the forward-looking nature of the refugee definition, and avoids the disruption of protection in circumstances where safety may be only a momentary aberration.16 [emphasis added]

[12]     In view of all of the foregoing, I find that there is a failure of state protection in India for a same-sex couple such as the claimants,17 that they do face a serious possibility of persecution if returned to India, and that there is not viable internal flight alternative available to them.

Subjective Fear

[13]     It is almost foolhardy in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear.18

CONCLUSION

[14]     In consideration of the foregoing, I find that XXXX XXXX XXXXand XXXX XXXX XXXX are Convention refugees and their claims are accepted.

(signed)           Jack Davis

1 Exhibits 5, 6, 7; and Exhibit 8, pp. 1 to 34.

2 Exhibit 3, National Documentation Package: India, 31 May 2019, item 2.1, “Country Reports on Human Rights Practices for 2018”, United States Department of State, 13 March 2019, Executive Summary.

3 Ibid., section 6.

4 Ibid., item 6.6, “India: Sexual Orientation and Gender Expression”, United Kingdom Home Office, October 2018, paragraph 2.4.14.

5 Exhibit 4, “What it Means to be Gay in Rural India”, BBC, 6 September 2018, p. 8.

6 Ibid., “Not My Fault I Was Born Gay: 19-Year-Old Commits Suicide Over Homophobia”, India Today, 9 July 2019, p. 15.

7 Exhibit 4, “India Gay Sex Ban is Struck Down. ‘Indefensible’, Court Says”, The New York Times, 6 September 2018, p. 18.

8 Ibid., p. 19.

9 Exhibit 3, National Documentation Package: India, 31 May 2019, item 2.1, “Country Reports on Human Rights Practices for 2018”, United States Department of State, 13 March 2019, section 6.

10 Ibid., item 2.6, “Freedom in the World 2019”, Freedom House, 2019, section F4

11 Ibid., item 6.1, Response to Information Request IND106287, 9 May 2019, section 1.1.

12 Ibid., section 2.1.

13 Exhibit 3, section 2.1.

14 Ibid., section 3.1.

15 Ibid., section 3.2.

16 Mahmoud v. Canada (Minister of Employment and Immigration), [1993] F.C.J. no. 1442, at paragraphs 25 and 26.

17 Supra., footnotes 3 and 15

18 Shanmugarajah v. Canada (Minister of Citizenship and Immigration), [1992] F. C. J., no. 583, at paragraph 3.

Categories
All Countries Colombia

2020 RLLR 158

Citation: 2020 RLLR 158
Tribunal: Refugee Protection Division
Date of Decision: January 23, 2020
Panel: Kim Bugby
Counsel for the Claimant(s): Victoria A Bruyn
Country: Colombia
RPD Number: TB9-00965
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000123-000126

DECISION

[1]       MEMBER: So, this is the decision for the claimant XXXX XXXX XXXX XXXX. The claimant is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I’ve considered the testimony and the other evidence in this case and I am ready to render a decision orally.

[2]       I find that the claimant is a Convention refugee as defined under Section 96 of the Act and I accept the claim. The allegations are set out in the Basis of Claim form. In summary the claimant was targeted by the AGC, the Black Eagles, and the Revolutionary Forces of the People, as a result of his work for XXXX XXXX, an organization focused upon promoting the rights of LGBT persons in Columbia.

[3]       The Nexus is political opinion as expressed through his work as a XXXX XXXX XXXX for the LGBT community and membership in a particular social group, as a gay man XXXX as XXXX XXXX.

[4]       The claimant on a balance of probabilities has established his identity through testimony and submission of his Columbian passport and other identity documents.

[5]       Based upon the claimants’ credible testimony and as substantiated by the documents submitted into evidence, I accept the following facts. The claimant was employed by the XXXX XXXX XXXX from 2010 to 2018. During his time with the organization, the claimant was responsible among other duties for the investigation of human rights abuses against LGBT persons and the collection and publication of related data. In XXXX 2017, the organization published and publicly presented a report which highlighted abuses of LGBT persons in education, employment, society, and by public officials. Shortly after publication of the report the claimant began to receive threats of harm by phone and text from various para-military groups.

[6]       Death threats were also received at the XXXX XXXX offices. The written threats included reference to social cleansing of clients’ of XXXX XXXX but also those who worked for and supported them. The organization was unable to provide any protection to its employees or its clients’ and took the position that such threats had always been a known possibility. The claimant reported the threats received at the offices of XXXX XXXX and the threats he personally received by phone and by text to both the ombudsman’s office and the prosecutor’s office seeking protection. Reports were taken but no protection was ordered. The claimant went into hiding at a friends home and disconnected his cell phone. However, his family continued to receive threatening calls at the claimant’s home number. The claimant fled Columbia in XXXX of 2018.

[7]       The objective country documents are consistent with the claimant’ s evidence. At Tab 1.7 the NDP speaks to the high-risk profiles of social leaders and human rights defenders. At Tab 2.9 of the NDP, the documents indicate a constant level of violence against social leaders and the human rights activists, perpetrated by the Bacrim. Based upon the claimant’s personal circumstances and the objective evidence I find that the claimant has established on a balance of probabilities a well-founded fear of persecution.

[8]       With regard to state protection the claimant reported the threats to government authorities but was not granted protection. The claimant’s evidence is consistent with the objective country reports at Tab 7.3, which indicate that the claimant does not fit the profile of those eligible for protection. At Tab 7.23 the NDP indicates that protection measures for victims are very limited and the measures in place do not yet meet the needs on the ground. Further, at Tab 2.6 the reports indicate that the political culture views human rights defenders as obstacles rather than guarantees for the rule of law in a democratic system with correspondingly high levels of impunity in Columbia, related to aggressions against human rights defenders. Reporting an impunity rate close to 90% in cases of a tax, a tax against defenders.

[9]       Based on the claimant’s personal circumstances and the objective country documentations, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence. Adequate state protection is not available to the claimant.

[10]     With respect to internal flight alternative, on a balance of probabilities I find that there is no viable internal flight alternative that would be safe for the claimant. The claimant was responsible for investigation of cases of abuse against LGBT persons and for assisting those same people when they proceeded with legal action against the perpetrators of the abuse. Those accused of the abuse include both police and criminal groups. The publication of data regarding this persecution on a balance of probabilities, led to the threats against the claimant and would remain a motivating factor for the armed groups to seek out the claimant.

[11]     The principal claimant has been declared a military objective. The country conditions indicate at Tab 7.2 that the, sorry, at 7.21 the country conditions indicate that when a person is declared a military objective it means that their life, physical integrity, and freedom are endangered, and that this threat also extends to their family. Essentially being declared a military objective is being issued a threat to be killed.

[12]     The claimant has been targeted due to his XXXX XXXX work and the country conditions are consistent with the claimants’ evidence that XXXX activists are at risk throughout the country. At Tab 2.2 the report indicate that XXXX XXXX defenders continue to be one of the main victims of the ongoing armed conflict. At Tab 2.9 the reports indicate that there are historically high levels of impunity in Columbia related to aggressions against XXXX XXXX defenders and this has been one of the structural causes for the repetition of these serious crimes, and again the reports indicate an impunity rate of 90% in cases of attacks against defenders.

[13]     Lastly, the claimant identifies as a gay man XXXX with XXXX XXXX. The objective country reports indicate instances of police violence against LGBT persons, societal abuse and discrimination, and further that criminal groups target homosexual and transgender individuals. Well the claimant has not been open

about his sexuality in Columbia, he would face further risk were his personal circumstances to come to light in Columbia.

[14]     Considering the claimant’s XXXX XXXX work, his profile as a gay man XXXX with XXXX XXXX XXXX and the objective country conditions, I find that there is no viable internal flight alternative that would be safe as the claimant faces a risk of persecution in all parts of the country.

[15]     Based on the totality of the evidence, I find the claimant to be a Convention refugee and I accept the claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Uganda

2020 RLLR 157

Citation: 2020 RLLR 157
Tribunal: Refugee Protection Division
Date of Decision: November 20, 2020
Panel: Sarah Acker
Counsel for the Claimant(s): Kingsley I Jesuorobo
Country: Uganda
RPD Number: TB8-31855
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000118-000122

DECISION

[1]       MEMBER: This is the decision for the following claimant, XXXX XXXX, who claims to be a citizen of Uganda and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act, the file number is TB8-31855. I’ve considered your testimony and the other evidence in the case and I’m ready to render my decision orally.

[2]       I find that you are a Convention refugee on the grounds of your membership in a particular social group as civil society activist, specially a member of Sexual Minority’s Uganda SMUG, pursuant to s. 96 of the IRPA. The details of your claim are set out in your Basis of Claim form and are supplemented by your testimony at today’s hearing.

[3]       In summary, you fear persecution in Uganda at the hands of the Ugandan government, state authorities and broader community due to your work as a XXXX XXXX XXXX for SMUG. You also allege that there is no state protection or internal flight alternative available to you in Uganda.

[4]       Your country of reference and personal identity as a citizen of Uganda has been established on a balance of probabilities by your testimony and the following supporting document filed in Exhibit 1, namely a certified true copy of your Ugandan passport that was submitted to the Minister.

[5]       I find that there’s a nexus between what you fear in Uganda and one of the five grounds enumerated in s. 96 of the IRPA, that is your membership in a particular social group, civil society activist, specifically an activist for Sexual Minorities in Uganda. Therefore, your claim is assessed under s. 96 of the IRPA and there is no need to conduct as. 97(1) analysis.

[6]       In terms of your general credibility, I found you to be a credible witness with regard to the material issues in your claim. There were no significant inconsistencies or omissions between your BOC, testimony and the other evidence before me.

[7]       Okay. You testified today that you were raised in a religious protestant environment and as a teenager, you heard your church leader speaking negatively about members of the gay community. You did not agree with their perspectives and stated that, “We are all human beings no matter our different beliefs”. When you were old enough, you left you childhood church and joined a church that was a place of worship and did not speak negatively about the LGBT, lesbian, gay, bisexual, transgender community.

[8]       At your church, you met a man named WK who you befriended. After some time, WK revealed his sexual orientation to you as a gay man and told you about his involvement in a gay rights organization called SMUG. You joined SMUG as a straight ally and participated in discussions about how you could assist the LGBT community in Uganda.

[9]       I asked you to tell me about that in greater detail. You testified that creating a safe network for the LGBT community was one strategy you helped SMUG work on. You explained that because being gay is illegal in Uganda, gay people need to be able to talk to trusted people who can help connect them with other trusted members of their network. You helped assist with this strategy.

[10]     You also testified about you and SMUG members focused on trying to change societal perceptions of the gay community by encouraging participation of gay members in local communities, gaining the trust of people and civic organizations and then slowly their diverse SOGIE to individuals who have grown to accept them as human beings.

[11]     You testified credibly and with knowledge about SMUG’s activities and your involvement in them. You also submitted a supported document from a safety and protection officer at SMUG in support of your claim. This letter contains SMUG’s contact information and logo in its letterhead. It describes your involvement in SMUG and the persecution you faced because of that involvement. I find this letter to be credible.

[12]     You testified that members of SMUG have been targeted for their advocacy in the past, including a XXXX for the organization named XXXX XXXX (ph) who was murdered in 2011. You also mentioned receiving threats because of your involvement in SMUG. After attending a meeting at the XXXX Hotel, you started receiving threatening phone calls and text messages warning you to stop your association with the LGBT community. You were also approached near your home by a man, who identified himself as XXXX XXXX XXXX, claiming to be a father of a colleague of yours from SMUG. When you asked your SMUG colleagues if any of them knew XXXX XXXX XXXX, they said they did not. XXXX XXXX XXXX threatened to kill you “for spoiling his son” and promoting homosexuality. These details are confirmed by the SMUG letter that I mentioned earlier that can be found in Exhibit 6 of the consolidated list of documents.

[13]     I, therefore, find on a balance of probabilities that you are involved as a straight ally in a gay rights organization in Uganda, called Sexual Minorities Uganda, and that you were threatened because of this affiliation. I also find on a balance of probabilities that you fear persecution because of your involvement with SMUG.

[14]     While I have credibility concerns about other parts of your evidence, those concerns did not outweigh the allegations that were proven on a balance of probabilities. Given that you have credibly made out key allegations and established a subjective fear of persecution, the other concerns that I had are not determinative. I, therefore, find on a balance of probabilities that you have a subjective fear of persecution in Uganda because of your civil society activism, particularly your membership in SMUG.

[15]     As a result, and it’s mentioned previously, this claim is being assessed under s. 96 of the IRPA and I find that you have established a nexus to a Convention ground, namely your membership in a particular social group, civil society activist for Sexual Minorities in Uganda.

[16]     In addition, to your credible testimony and the other evidence before me today, the objective evidence in this case supports your claim. Same sex acts are criminalized in Uganda. Section 145 of Ugandan Penal Code Act criminalizes, “Carnal knowledge against the order of nature”, the sentence is life imprisonment. NDP Item 6.1 explains that this section of the penal code is often used to prosecute men for same sex activities and also criminalizes activities in support of sexual minority rights.

[17]     NDP Item 2.9 reinforces that advocating on behalf of the LGBT community in Uganda is considered, “Promoting or committing a hate crime — or, pardon me, a crime”. Gay rights activists face a myriad of threats, physical, verbal, digital and are under constant surveillance. Instances of documented threats and violence against gay rights activists include NDP Item 2.9 in Bunamwaya July of 2018, a staff member of a human rights organization for transgender people was attacked outside of his office. In December of 2010, as you’ve mentioned, David Keto, a gay rights activist who was outed as a gay man in a Kampala (ph) tabloid was murdered.

[18]     NDP Item 6.1 provides examples of SMUG activities being unlawfully detained and tortured by Ugandan state authorities because of their work. This is the organization that you worked for. The NDP states, “In July of 2008, an activist with the organization Sexual Minorities Uganda alleged that police tortured and humiliated him during an illegal detention.” In 2009, SMUG reported further police harassment of its members. Two activists, FW and BM were arrested on April 5th, 2019 and charged with, “Homosexual conduct” on April 17th of that year. The men were remanded to Maluke (ph) prison, where they were detained for several weeks until released on bail.

[19]     NDP Item 2.9 discusses the effect of this targeting on gay rights advocates in Uganda. The NDP states that with offices broken into and people assaulted, this causes an environment of fear and uneasiness that can affect human rights defenders’ mental health, provide them anxiety, depression, feelings of isolation and post-traumatic stress disorder. NDP Item 4.4 states that the human rights awareness and promotion forum, a group that promote minority rights in Uganda, suffered its second break-in on February 9th of 2018. Overall, 30 non-governmental organizations have had their offices broken into since 2012. NDP 4.6 details other types of government attacks on gay rights activists. For example, on April of 2014, the LGBT community in Uganda was reportedly targeted by Zeuz (ph) Malware, a spyware often used to steal banking information through techniques including keystroke logging and form grabbing. Human rights defenders routinely report theft of servers and other computer material and hacking of websites.

[20]     In summary, the National Documentation Package cites numerous acts and threats of physical and cyber violence against gay rights activists in Uganda. I, therefore, find on a balance of probabilities that your subjective fear of persecution on account of your political activism with SMUG in Uganda has an objective basis and is well-founded. I am satisfied that you face a serious possibility of persecution if you were to return to Uganda.

[21]     While states are presumed to be capable of protecting their nationals, it is open to a claimant to rebut the presumption of protection with clear and convincing evidence. In this case, one of the agents of persecution is the state because of board facing persecution that you would face in Uganda is at the hands of state authorities, given that your conduct is considered to be promoting a crime. Under personal circumstances as well as the objective country documentation, I find on a balance of probabilities that you have rebutted the presumption of state protection with clear and convincing evidence, and that there is no state protection available to you.

[22]     Given that the state is the agent of persecution and there is no objective evidence that shows the state does not have control over the entire country of Uganda, I find on a balance of probabilities that you would face a serious possibility of persecution throughout Uganda, and therefore, a viable internal flight alternative does not exist for you.

[23]     Having considered your testimony, the documentary evidence presented and the objective evidence before me, I find that there is a serious possibility persecution in Uganda at the hands of the Uganda government and its security forces, as well as the broader Ugandan community if you return there.  For the aforementioned reasons, I conclude that you are a Convention refugee pursuant to s. 96 of the IRPA and I accept your claim.

[24]     So, XXXX XXXX XXXX, that concludes my decision and that concludes today’s hearing. Thank you for your participation in your hearing today, and thank you to Counsel for your assistance, and I wish you all the best. Stay healthy.

CLAIMANT: Thank you so much, Madam Member.

COUNSEL: Thank you.

MEMBER: My pleasure, be well.

COUNSEL: Thanks.

MEMBER: Bye, bye.

COUNSEL: Bye, bye.

CLAIMANT: Bye.

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

Categories
All Countries Nigeria

2020 RLLR 155

Citation: 2020 RLLR 155
Tribunal: Refugee Protection Division
Date of Decision: December 23, 2020
Panel: Sudabeh Mashkuri
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: TB8-02740
Associated RPD Number(s): TB8-02782
ATIP Number: A-2022-00210
ATIP Pages: 000109-000113

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in the case. I’m going to render my decision orally right now. When you do get the transcript of these reasons they will not be edited for spelling, syntax, and grammar, but I want to reassure you that I have considered and taken into my findings all the applicable case law, the documentary evidence, and all the other references that were before me.

[2]       The claimants XXXX XXXX XXXX XXXX and minor claimant XXXX XXXX XXXX, you claim … the principal claimant claims to be a citizen of Nigeria and the minor claimant is a citizen of the United States, and they are both claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have appointed you as the designated representative to the minor claimant XXXX XXXX XXXX, and your claims have been joined under Rule 50 of the Immigration and Refugee Protection Act regulations.

[4]       This is going to be a split decision. In deciding your claims I have considered the guidelines on women refugee claimants fearing gender related persecution and this is my determination.

[5]       I am first going to deal with the minor claimant. After considering all the evidence before me I find that the minor claimant, although she has … she has established that she is a US citizen, I find that she’s neither a Convention refugee nor a person in need of protection. No evidence was put forward on behalf of the minor claimant with regards to persecution in United States.

[6]       I do find that identity of the minor claimant has been established based on the principal claimant’s testimony. The minor claimant has a US passport, as well as a birth certificate. She also has a Nigerian passport based on her parent’s citizenship. However, I do find that since she’s also a citizen of United States and no claim was advanced with regard to the claimant against the US, I … that … that would suggest that as a citizen of the US she would not be able to obtain State protection in the US.

[7]       I do find that her claim has failed, that she’s neither a Convention refugee nor a person in need of protection, and therefore her claim is denied. However, this is my second determination.

[8]       I find that the principal claimant is a Convention refugee based on her membership in a particular social group. I do find that there’s an intersection between two grounds. One is a membership in a particular social group as a family member of … of a child who is XXXX, and I also find that there is an intersection of the principal claimant’s immutable being as … as a woman and therefore I find that there is a gender aspect. She is a mother and a woman who’s deemed to be responsible, either as a XXXX, which is based on her gender, for her child having … having been XXXX with XXXX.

[9]       As far as the analysis of this case is concerned, as I stated previously, as far as identity’s concerned I find that the principal claimant has established that she is a citizen of Nigeria based on her testimony and her passport, and the minor claimant is a citizen of Nigeria as well as United States.

[10]     Credibility is an issue in every claim. I found that the claimant was … the principal claimant was credible witness with regards to what she has alleged in support of her claim with regards to her daughter.

[11]     And I want to just go a little bit with regards to the allegations of this claim. The allegations were set out in three Basis of Claim Forms about the fear of the claimant on being persecuted by her in-laws because of her mother-in-law dying in 2016, in XXXX 2016. However, I have taken into consideration that her fear materialized at that point for being perceived as a XXXX, responsible for the death of her mother-in-law, but however, that was almost four and a half years ago. A lot has happened since then.

[12]     And I’ve looked at the documentary evidence provided and I find that this is basically a sur place claim in that the claimant’s daughter, although assessed in the United States in 2017 with developmental delay, was not diagnosed with XXXXandXXXX XXXX until 2019, when the claimants were in Canada.

[13]     I’ve looked at … I have found the claimant’s oral testimony with regards to how she would be treated if she is to return presently to Nigeria to be credible, as well as the objective documentary evidence concerning the perception of the persecutors for a woman, a mother of an XXXX child. The minor claimant is only XXXX years old and she would be returning to Nigeria with her mother, although she’s American citizen.

[14]     I have looked at the past behaviour of the claimant’s in-laws as agents of persecution with regards to what they believed, what they call ju-ju or cultural milieu of a woman blamed for misfortunes falling on a family, and I do find that, on a balance of probability, she would be persecuted based on the recent diagnosis of XXXX for the minor claimant in Canada.

[15]     As I stated, as far as credibility is concerned, I find that the fear for the claimant basically materialized once she was in Canada with regards to the diagnosis of XXXX for her child.

[16]     The claimant fears her in-laws, society, community, and the discrimination that she fears in … my finding will cumulate to persecution. Taking into account the objective documentary evidence of those who are … who have XXXX or parents of XXXX children are treated in Nigeria.

[17]     I have vast amount of documentary evidence. The fear is forward-looking and therefore I do find that there’s a reasonable chance of persecution of the principal claimant as a mother of an XXXX child if she’s to return to Nigeria presently.

[18]     I just wanted to put into the record some of the objective documentary evidence that was provided to me in Exhibit Number 8, for example, with regards to exorcisms as a common treatment for those who have XXXX. Mothers are blamed for their children’s XXXX in Nigeria.

[19]     Persons with XXXX and disabilities are perceived as possessed and evil. And although minor claimant is an American citizen and not at risk if her mother is deemed to be the person who’s responsible for XXXX XXXX the principal claimant also would be at risk.

[20]     XXXX is deemed, as I stated, seems to be connected to witchcraft and diabolic activities. There’s a … there is a fear of social stigma also for the principal claimant and her daughter. The extended family whose in Nigeria also would be part of the agents of persecution.

[21]     As stated in the documentary evidence, in Nigeria there is a lot of mysticism around disabilities and people who don’t often know what to attribute to the disability of a child and the Nigerian culture.

[22]     I … I have some documentary evidence with regards to the Yoruba culture. Blames diseases and disabilities, like XXXX XXXX often to mothers and on witchcraft and spirits and hereditary causes or just bad parenting, as stated in the basis of … objective documentary evidence.

[23]     There’s also a lack of community and family support and social support, and as I stated, shame and stigma with regards to those who are deemed to be parents of XXXX children.

[24]     I do have documentary evidence that those who are deemed to be possessed are sometimes killed, tied up, and generally mistreated very badly in Nigeria.

[25]     As far as State protection is concerned, there’s ample documentary evidence with regards to the police corruption in Nigeria.

[26]     Recently in the news there has been reports of protest against SARS which is a special Nigerian police force department. There’s also ample documentary evidence with regards to lack of protection for those who are fleeing anything to do with family problems.

[27]     Furthermore, the claimant’s in-laws are well-known politicians. They are well connected with the police, and there are … therefore I find that there’s inadequate State protection available to the claimants, specifically in this particular case to the principal claimant for someone who’s deemed to be a XXXX or responsible for her daughter’s XXXX.

[28]     As far as internal flight alternative is concerned, I’ve taken into consideration the two-prong test given tome by the Federal Court of Appeal. I have also taken into account the gender guidelines. I find that the first prong that the reach and means and the influence of the extended in-law’s family is very wide.

[29]     They do have the motivation. They seem to be steeped in cultural background of belief of mysticism.

[30]     And I do find that the documentary evidence provided with regards to the agent of persecution, there were some media reports with regards to the principal claimant’s in-laws being very influential and holding high office in Nigeria. And as I stated, the State protection is extremely inadequate presently in … in Nigeria.

[31]     There’s also the issue of whether it’s reasonable during pandemic for the claimants to go and live in a different place, the second prong of the IFA. I’ve taken into consideration again particular circumstances of the principal claimant of being a mother of an XXXX child. There is a lack of programs for the minor claimant.

[32]     Again, I do note it is a fictional, legal fictional programs for the minor claimants. Again, I do note it is a fictional, legal fictional premises that we have the minor claimant would not be going back with her mother. She’s XXXX years old. Obviously, she would not be going back to the United States. She would going with her mother.

[33]     And an XXXX child with absolutely no programs available to her in Port Harcourt, as well as the principal claimant who has been getting XXXXand XXXX assistance in Canada. I do not find that there would be any … anything like that available to her in Port Harcourt. She would living as a single mother since her husband would continue to live in Lagos, so that her in-laws would not be able to find her.

[34]     There’s stigma. There’s a lack of opportunities for employment for single mothers, and presently since the fear is forward-looking, I find that there’s no viable or reasonable internal flight alternative available to the principal claimant.

[35]     Therefore, based on the foregoing analysis, I find that the principal claimant is a Convention refugee and I reject the minor claimant’s claim with regards to United States. Thank you.

COUNSEL: Thank you so much, Madam Member. Well, appreciated. Thank you.

MEMBER: Thank you.

———- REASONS CONCLUDED ———-