Category: All Countries

2022 RLLR 61

Citation: 2022 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: December 9, 2022
Panel: M. Bourassa
Counsel for the Claimant(s): Pierre-Luc Bouchard
Country: Sierra Leone
RPD Number: TC2-22296
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] The claimant, XXXX claims to be a citizen of Sierra Leone and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (‘IRPA”).

[2] In coming to its decision, the panel considered post-hearing written submissions received from counsel on December 9, 2022.

[3] The panel has considered and applied the Chairperson’s Guideline 9: Proceedings Involving Sexual Orientation, Gender Identity Expression, and Sex Characteristics.

DETERMINATION

[4] Having considered the totality of the evidence, the panel finds the claimant to be a Convention refugee under s. 96 of IRPA as he has established a serious possibility of persecution should he retum to Sierra Leone based on his membership in a particular social group based on his sexual orientation as a gay man.

ALLEGATIONS

[5] The claimant’ s allegations are set out in his Basis of Claim (BOC) form[1] and narrative, as amended.[2] In short, he alleges a fear of persecution in Sierra Leone due to his sexual orientation as a gay man.

[6] The claimant alleges a fear of persecution from his father who assaulted him with a knife, authorities in Sierra Leone and the community. The claimant alleges that there is no available protection in Sierra Leone. Same sex relations are criminalized in Sierra Leone and are disapproved of in society. He alleges that he could not live safely anywhere in Sierra Leone.

ANALYSIS

Identity

[7] The panel finds that the claimant’s personal identity and as a citizen of Sierra Leone have been established on a balance of probabilities through the claimant’s testimony and the supporting documents on file that include his passport, a certified true copy of which was provided to the Board by CBSA/IRCC.[3]

Nexus

[8] The panel finds that there is a link: between what the claimant fears and one of the five Convention grounds, membership in a particular social group, based on his sexual orientation. Therefore, his claim has been assessed under s. 96 of IRPA.

Credibility

[9] Overall, the panel finds the claimant is a credible witness.

[10] The panel finds, on a balance of probabilities, that the claimant has established his sexual orientation as a gay man through a combination of his testimony and supporting documentation.

[11] The claimant testified credibly that he did odd day jobs for an individual that he referred to as the “white man” who started to pay him for sexual favours. Intime, he asked the claimant to bring a friend. He testified that he brought a friend, XXXX and that they fell into a relationship as same-sex partners after the white man left in 2015. He described himself as the woman in their relationship. He testified that he was aware that consensual same-sex sexual activity is criminalized in Sierra Leone and of the prevailing cultural norms and attitudes.

[12] The claimant testified credibly about his same-sex relationship with XXXX that extended over several years, including what he liked about him and what they liked to do together. He added that no one was suspicious of their relationship. They were viewed as good friends. In support of his claim, the claimant submitted several photos[4] of himself and his partner explaining when each was taken. The panel finds the photos to be credible and trustworthy and gives them weight.

[13] The claimant testified credibly that he and his partner went clubbing on XXXX 2019, to celebrate XXXX. They stayed out late and returned to the claimant’s house. Uncharacteristically, they slept late. He testified that a step-sister came into his room which also acted as a storeroom, in order to get a bag of rice, and caught them having sex. She left immediately. He then locked the door after she left, adding that they may have forgotten to lock the door. His step-mother then knocked on the door and asked to come in and get the rice and then left. He overheard her asking the step-sister what she had seen and was told that she had seen them having sex.

[14] The claimant testified credibly that he and his partner went to sit outside waiting for his step-mother to finish cooking the rice. They were then approached by four men who identified themselves as Community Service Volunteers who told him that his step-mother had reported that he was gay and caught having sex. They also witnessed the claimant and his partner sharing a kiss. Two of the men proceeded to hit the claimant with batons and beat him. He was dragged to the front of the house where his father stabbed him with a knife in XXXX, vowing to kill him. The claimant managed to escape and made his way to his sister XXXX’s house. His partner who had tried to intervene, was beaten and apparently died.

[15] The claimant testified that he disclosed what had happened to his brother-in-law and to his sister XXXX who arrived home later. His brother-in-law told him that he would be killed if he returned home. His sister accompanied him to a clinic for medical attention. He left for Ghana

XXXX days later, and then travelled to Ecuador and eventually to the United States. The claimant testified that he has remained in regular contact with his sister XXXX, who informs him that his father remains angry and upset and has threatened to kill him.

[16] The claimant testified credibly that he was detained in California for attempting to enter the United States (US) illegally. He was able to leave detention after XXXX months with the assistance of an organization that advocates for LGBTQ persons in US Immigration detention. In support of his claim, the claimant provided a letter of support[5] from XXXX of the XXXX who confirm that they paid the claimant’s XXXX immigration bond in coordination with XXXX and XXXX who provided temporary housing to the claimant and organized his transportation from detention to his sponsor. Mr. XXXX also states that the claimant has remained in touch with him and individuals that he worked with at XXXX and shared the danger he fears in Sierra Leone because of his sexual orientation. It is also noted that the claimant facilitated the retum of the-

bond to his organization. The panel finds the letter to be credible and trustworthy and gives it weight.

[17] The claimant testified credibly that since being in Canada, he has participated in some support programs and social activities with AGIR, a non-profit organization for migrants who self-identify as sexual and/or gender minorities. In support of his claim, he submitted a letter6 from AGIR confirming that that the claimant approached the organization and self-identified as a gay man and shared the danger he fears because ofhis sexual orientation from Sierra Leone, and has participated in 4 AGIR support groups and social events for LGBTQ+ migrants. The panel finds the letter to be credible and trustworthy and gives it weight.

[18] The claimant testified that he is currently involved in a same-sex relationship with a man called hat he was acquainted with in Sierra Leone and with whom he reconnected with

5 Exhibit 5, item P-8.

6 Exhibit 6.

while living in the US in different cities. He was able to provide information about his partner who remains in the US and details of their relationship. However, his partner did not appear at the hearing as a witness. When asked why his partner did not appear as a witness at the hearing, he responded that he did not know he could. His partner had provided a letter7 of support and proof of his identity. The panel noted that the letter is not signed and inquired whether the second page was missing. Counsel confirmed that the one page was all that he had received. The panel gives little way to the unsigned letter and notes that it is unfortunate that his partner did not attend the hearing to testify in support of his same-sex partner’ s claim, as one might reasonably have expected him to be available.

[19] The claimant also submitted a letter of support from hom he described as the husband of his stepsister, l his father’s daughter from another relationship. The claimant stated that his brother-in-law witnessed the incident at his father’s house. The panel noted some inconsistencies between his written and oral testimony and the letter. For instance, the claimant testified that he was stabbed in 1

and managed to escape, running uphill to eventually make his way to his sister house and later fled to Ghana. The brother-in-law states in his letter that the claimant was stabbed in the

and dragged unconsciously to a nearby drainage. He also refers to the claimant fleeing to Guinea, Conakry and having contributed to his travel. The claimant explained that his brother-in law may not have written it well and made a mistake about Guinea. He added that he had pretended not to get up in order to flee. The panel does not find his explanations to be reasonable. One might reasonably have expected someone who had allegedly witnessed the attack to recall basic facts. Furthermore, it is not clear from the letter that he witnessed the incident at the claimant’s father’s house given that he appears to reside in a different community. For these reasons, the panel does not find the letter to be credible and trustworthy and gives it no weight. However, there is other credible and trustworthy evidence before the panel.

[20] The panel finds, based on a balance of probabilities, the claimant has established his sexual orientation as a gay man and whose sexual orientation is known in Sierra Leone. The panel finds that the claimant has established a subjective fear of returning to Malawi.

7 Exhibit 5, item P-9.

Objective Basis

[21] The Board finds that the claimant’ s allegations are supported by the documentary evidence, namely the national documentation package for Sierra Leone8 and that the claimant would face a serious possibility of persecution should he return to Sierra Leone based on his membership in a particular social group, based on his sexual orientation as a gay man.

[22] The documentary evidence9 indicates that the law criminalizes same-sex sexual activity between men under the Offences Against the Person Act, carrying a maximum penalty of life imprisonment. The law is not enforced.10

[23] The constitution does not offer protection from discrimination based on sexual orientation.11 No hate crime law covers bias-motivated violence against LGBTI+ persons.12 Although LGBTQI+ advocacy groups noted that police discrimination against LGBTQI+ individuals had not disappeared, they reported that police were increasingly treating LGBTQI+ persons with understanding.13

[24] The panel notes that Guideline 9 at Section 8.5.6.1 indicates that even where laws are not enforced in a country against same-sex relationships, they may create a climate of impunity for perpetrators of violence and contribute to discrimination against SOGIESC individuals as they may reinforce negative societal attitudes against this population as well. According to one source, even though the anti-buggery law is not actively enforced, it contributes significantly to the stigma and discrimination of people on the basis of their sexual orientation. 14

[25] There is significant societal discrimination based on sexual orientation in Sierra Leone in nearly every facet of life.

8 Exhibit 8, National Documentary Packager for Sierra Leone, 31 March 2020 version.

9 Exhibit 3, items 2.1 and 2.2.

10 Exhibit 3, item 2.1.

11 Exhibit 3.

12 Exhibit 3.

13 Exhibit 3.

14 Exhibit 3, item 6.1.

[26] LGBTQI+ advocates reported the community faced challenges ranging from violence, stigma, discrimination, blackmailing, and public attack to denial of public services such as healthcare and justice. According to one source,15 in 2019, two men were reported to the police by their family members after being caught having sex in their house. The couple was able to escape and managed to leave the country before they were arrested.

[27] Discrimination occurs in housing, in healthcare, also in employment in Sierra Leone and that there is a failure of the State to investigate or punish public entities and private persons complicit in abuses against LGBTQI+ persons.16

[28] It is difficult for LGBTQI+ individuals to receive health services; many chose not to seek medical testing or treatment due to fear their right to confidentiality would be ignored and their sexual identity would be compromised. According to a study, healthcare professionals have refused treatment or abused LGBT patients after discovering their identities.

[29] Obtaining secure housing was also a problem for LGBTQI+ persons. Families frequently shunned their LGBTQI+ children, leading some to tum to commercial sexto survive. Adults risked having their leases terminated if their LGBTQI+ status became public.

[30] The panel finds that the discrimination that LGBTQI+ persons including gay men face in Sierra Leone rises to the level of persecution. In making this finding, the Board has made reference to the UNHCR Handbook. The UNHCR Handbook indicates the discrimination rises to the level of persecution, where there are a number of discriminatory acts which are substantially prejudicial to the person concemed, that take place in a general atmosphere of insecurity, and which result in feelings of apprehension and insecurity with regard to the future existence of that person.17

15 Exhibit 4, item 6.2.

16 Exhibit 4, item 6.2.

17 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status ofRefugees of the United Nations High Commission for Refugees, at paras. 54-55.

[31] The Federal Court has noted that the Board must take into account the cumulative nature ofvarious acts ofharassment and attacks to determine whether they amount to persecution.18 Based on the objective evidence regarding Sierra Leone, the Board finds that this does amount to persecution in the claimant’s particular circumstances.

[32] Considering all of the evidence including the documentary evidence as well as the credible evidence of the claimant, the panel finds that the claimant would face a serious possibility of persecution in Sierra Leone as a gay man. The country conditions documentation supports the claimant’s allegations.

State Protection

[33] Based on the claimant’s persona! circumstances as well as the country documentation referred to above, the panel finds on a balance of probabilities that the claimant has rebutted the presumption of state protection with clear and convincing evidence. Adequate state protection is not available as same-sex activity is criminalized in Sierra Leone.

Internai Flight Alternative (IFA)

[34] Based on the objective documentary evidence as set out above, the panel finds that there is a serious possibility of persecution throughout Sierra Leone for the claimant as same-sex activity is criminalized throughout Sierra Leone and as such there is no viable IFA.

CONCLUSION

[35] Having considered the totality of the evidence, the panel finds the claimant to be a Convention refugee under s. 96 of IRPA as he has established a serious possibility of persecution should he retum to Sierra Leone based on his membership in a particular social group based on his sexual orientation as a gay man.

18 Mete v. Canada (MC/), 2005 FC 840 (CanLII), at paras. 5, 6; Canada (MC/) v. Munderere, 2008 FCA 84 (CanLII),

at para. 41.

[36] The panel finds the claimant to be a Convention refugee and accepts his claim.

(signed) Christine Tam

December 20, 2022

[1] Exhibit 2.0.

[2] Exhibit 2(a).

[3] Exhibit 1.

[4] Exhibit 5, item P-7.

[5] Exhibit 5, item P-8.

All Countries Jamaica

2022 RLLR 60

Citation: 2022 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2022
Panel: Christine Tam
Counsel for the Claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TC2-09401
Associated RPD Number(s): TC2-09403, TC2-09406, TC2-09407, TC2-09408
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision in the claim for refugee protection of XXXX (principal claimant or PC), XXXX (associate claimant 1 or AC1), XXXX and XXXX (associate claimant 2 or AC2) (collectively, the claimants). The claimants claim to be citizens of Jamaica and seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)[i].

[2] The claims were heard jointly pursuant to Rule 55(1) of the Refugee Protection Division Rules. The Refugee Protection Division appointed AC1 to be the Designated Representative for his two minor children XXXX and XXXX, the minor associate claimants in this claim.

ALLEGATIONS

[3] The allegations of the claim are found in the Basis of Claim form (BOC)[ii]. The adult claimants each filed their own BOC narratives, on which the minor associate claimants rely. Only the adult claimants testified at the hearing. In summary, AC1 alleges a fear of persecution at the hands of the Jamaican society at large because of his sexual orientation as a bisexual man. PC, AC2 and the minor associate claimants, being the wife and children of AC1, allege a fear of persecution at the hands of the Jamaican society at large because of their association with AC1. If returned to Jamaica, they fear that they would face harassment or would be beaten or killed.

DETERMINATION

[4] The panel finds that AC1 is not excluded under Article 1F(a) of the Refugee Convention. The panel further finds that the claimants have established a serious possibility of persecution if returned to Jamaica and therefore they are Convention refugees pursuant to section 96 of the IRPA. In rendering this decision, the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).

NOT EXCLUDED UNDER ARTICLE 1F(a)

[5] Pursuant to Rule 26 of the Refugee Protection Division Rules, the panel notified the Minister in writing of possible exclusion under Article 1F(a) of the Refugee Convention. Upon review of the file, the Minister indicated that it did not intend to intervene at the hearing[iii].

[6] For the following reasons, the panel finds that the principal claimant is not excluded under Article 1F(a) of the Refugee Convention. His testimony in this regard was straightforward and unembellished. The panel finds him a credible witness.

[7] AC1 was a XXXX with the XXXX 2001 to XXXX 2009. According to a table entitled “Details of XXXX”[iv], AC1 declared that this duties included XXX. He testified that, during his service, he was a XXXX and at certain periods, XXXX attached to the XXXX. His duties included XXXX and XXXX. When curfews were enforced, the police would be brought into joint operations with the Jamaica Defence Force to check citizens’ identification cards and maintain law and order. He further testified that he had neither committed a crime against peace, a war crime or a crime against humanity. There is insufficient evidence to establish that the actions of AC1, as a XXXX (including when he was engaged in operations with the XXXX),

led to any of the proscribed acts. Further, AC1 did not hold a high rank within the XXXX and his duties and activities do not demonstrate a link with any of the proscribed acts. Therefore, in consideration of AC1 ‘s credible testimony, the panel finds that there is insufficient evidence to establish that there are serious reasons for considering that he had made a knowing, significant and voluntary contribution or was complicit to a crime against humanity. As such, the panel finds that AC1 is not excluded under Article 1F(a) of the Refugee Convention.

ANALYSIS

Identity

[8] The panel finds, on a balance of probabilities, that the claimants’ personal and national identities have been established by their Jamaican passports, Elector Registration Identification Cards, birth certificates[v] and testimonies.

Nexus

[9] The panel finds that AC1 has established a nexus to section 96 of the IRPA by reason of his membership in a particular social group based on his sexual orientation as a bisexual man. The panel finds that PC, AC2 and the minor associate claimants have also established a nexus to section 96 of the IRPA by reason of their membership in a particular social group because of their familial relationship with AC1 (i.e. as the immediate family members of a bisexual man in Jamaica who have also been harassed and threatened).

Credibility

[10] The panel finds the adult claimants credible. Their testimonies were spontaneous, responsive, consistent with each other and in keeping with their BOC narratives and supporting documents. For the following reasons, the panel finds that AC1 has credibly established his sexual orientation as a bisexual man.

[11] AC1 provided detailed and specific testimony of his experiences in Jamaica as a bisexual man, including when and how he discovered his sexual orientation; how he feels when he is around the same sex as opposed to the opposite sex; how he had tried to keep his sexual orientation from his family and the community for fear of reprisal; and how he has intimacy issues with the opposite sex, including his former girlfriend and PC. His provided a realistically detailed account of the mistreatment and harassment he received from those who had suspicions about his sexual orientation, including staring and finger pointing, rumours, verbal abuse, segregation and death threats. He testified that he ended his service with the XXXX because fellow officers taunted him by saying that he was in breach of the buggery law. PC and AC2 also provided detailed and specific testimony about the difficulties of having a family member who is bisexual and how they and the minor associate claimants were stigmatized, bullied and threatened by the community because of their association with AC1. In particular, AC2 told the panel that she and the minor associate claimants have had to miss school due to the bullying and threats. The adult claimants were able to provide the kind and level of details one would expect from someone telling their own story. In support of their testimony, the claimants provided letters of support from family members and relatives and AC1 ‘s registration with the XXXX in Canada[vi]. The panel finds no valid reason to doubt the authenticity of these documents and affords them full weight. The letter of support from AC1’s mother is particularly compelling, considering how difficult it must have been for her to acknowledge and confirm her son’s sexual orientation. On a balance of probabilities, the panel finds that the persuasive testimonies of the adult claimants, coupled with their credible supporting documents, established that AC1 is a bisexual man and that the claimants were harassed and mistreated by the Jamaican society due to his sexual orientation.

[12] AC1 testified that he did not have any intimate same-sex relationships in Jamaica. He did, however, have a same-sex highschool friend, PS, whom he finds sexually attractive and wishes to be intimate with. AC1 explained that, given that the Jamaican society was homophobic, he had never engaged in any same-sex relationships because he feared for his life. In light of the objective evidence that members of the LGBTQ+ community in Jamaica face arrest, detention and prosecution for their sexuality under the law[vii], the panel finds this explanation reasonable. When asked why he did not have any letter of support from or photos or text messages with PS, AC1 explained that although he has PS’ telephone number, they do not speak often and PS does not know that he is currently in Canada. Given the homophobic climate of Jamaica and that AC1 had been concealing his sexual orientation for the most part of his life, the panel finds that it is not unreasonable for him not to have any corroborative evidence about his attractions towards PS and therefore no negative credibility inference is drawn against AC1 in this regard. On a balance of probabilities, the panel finds that AC1 has established that he is attracted to his same-sex friend, PS, which further supports his credible testimony that he is a bisexual man.

[13] AC1 also testified that he did not have any same-sex relationships in Canada. When asked why this is the case, AC1 explained that he is working on trying to suppress his same-sex urges so that he is able to build a connection with PC, given that she loves him and has been very patient with him throughout the years. The panel accepts this explanation, noting from Guideline 9 that a panel should not assume that (a) SOGIESC individuals would not have had heterosexual sexual experiences or relations or would not voluntarily enter a heterosexual marriage or have children; or (b) SOGIESC individuals would necessarily act upon their attractions by engaging in same-sex activity. The panel therefore finds the fact that AC1 chooses to maintain a relationship with PC instead of having a same-sex relationship does not detract from the credibility of his sexual orientation as a bisexual man. The panel accepts that departures from one’s true sexual orientation are not necessarily indicative of a lack of credibility and therefore no negative credibility inference is drawn against AC1 in this regard.

[14] Having considered the adult claimants’ testimonies and their supporting documents, the panel finds, on a balance of probabilities, that AC1 has credibly established his sexual orientation as a bisexual man. Correspondingly, the panel finds that PC, AC2 and the minor associate claimants are the immediate family members of a bisexual man and are at risk of persecution because family members of LGBTQ+ persons are targeted in Jamaica.

[15] The panel notes that PC and AC1 had made multiple trips to the US and returned to Jamaica thereafter. PC explained that his trips were predominantly work-related and AC1 explained that she had made several trips to visit and help her friend who had just given birth to a newborn. Both testified that they did not know about the asylum process in the US and had returned to Jamaica because they still had their family and children there. The panel accepts these explanations because both PC and AC1 were raised in a society in which same-sex relationships are illegal and considered a taboo. This is not something that they would openly discuss and make inquiries about. Under such circumstances, it is not for PC and AC1 not to have claimed asylum in the US on the ground of AC1’s sexual orientation. It is also not unreasonable for a parent to return to their children, despite the dangers that exist in their country of reference.

[16] The claimants delayed leaving Jamaica and left at different time periods between 2020 and 2021. While PC and AC1 obtained their Canadian visas in XXXX 2019, AC2 and the minor associate claimants did not obtain theirs until XXXX 2019. It is understandable that a parent would delay leaving their country of reference until their children also secured valid Canadian visas. PC (who was pregnant at the time) and her youngest child (XXXX) left in XXXX 2020, followed by AC1 in XXXX 2020 and AC2 and XXXX in 2021. The COVID pandemic also contributed to their delay. In the light of the above circumstances and the uncertainties caused by the COVID pandemic, the panel does not draw any negative inference from the claimants’ delay in leaving.

[17] The claimants also delayed making a refugee claim until the entire family was reunited in Canada. They submitted their claims in February 2022. It is understandable for the claimants not to have made a claim until AC2 and XXXX arrived in XXXX 2021 because they are a family unit. In any event, the panel notes that delay is not determinative of a claim. Given that the panel finds that AC1 has credibly established that he is a bisexual man and that PC, AC2 and the minor associate claimants are the immediate family members of a bisexual man, the delay in claiming does not impact their forward-looking subjective fear of persecution based on their membership in a particular social group, namely bisexual men and family members of a bisexual man in Jamaica respectively.

[18] The claimants’ subjective fear is supported by the objective evidence in the National Documentation Package for Jamaica and the country documentation that they submitted to support their claims.[viii] According to the objective evidence, same-sex acts between men are criminalised in Jamaica. Therefore, members of the LGBTQ+ community face arrest, detention and prosecution for their sexuality under the law[ix]. Physical and sexual violence, including severe beatings and even murder, are part of the lived reality of SOGIESC individuals in Jamaica. The level of brutality leads many to fear what could happen if their sexual orientation or gender identity is disclosed[x]. Sources indicates that homophobia is widespread in Jamaica and is considered to be a “cultural norm”. As a result, members of the LGBTQ+ community “face both general societal discrimination as well as discrimination in access to services, including healthcare, housing, and employment”[xi].

[19] The U.S. Department of State’s most recent report on human rights in Jamaica states that the law does not extend anti-discrimination protection to SOGIESC persons, and the law “legitimizes violence toward LGBTI persons”[xii]. Harassment and violence against SOGIESC individuals are frequently ignored by the police and discrimination is pervasive[xiii]. The objective evidence also indicates that that family members of individuals with diverse SOGIESC are affected by stigma in Jamaica. According to a 2019 LGBT Community Experience and Needs Assessment Survey Report, 11% of respondents experienced blackmail and threats of exposure to family[xiv]. An official at J-FLAG, a prominent LGBT NGO, withdrew his petition against Jamaica’s buggery law due to threats against himself and his family[xv]. The above is in line with PC and AC2′ s testimonies of their experience of being stigmatized, bullied and threatened due to their association with AC1, a bisexual man.

[20] Based on the objective evidence which shows the persecution of SOGIESC individuals and their family members in Jamaica, the panel finds, on a balance of probabilities, that there is an objective basis for the claimants’ subjective fear by reason of AC1 ‘s sexual orientation as a bisexual man and their association with him. The panel therefore finds that the claimants have established a well-founded fear of persecution in Jamaica based on their membership in a social group, namely bisexual men and family members of a bisexual man in Jamaica respectively.

STATE PROTECTION

[21] There is a presumption that states are capable of protection their citizens unless it is in a state of complete breakdown[xvi]. The claimants bear the burden of rebutting that presumption.

[22] Sources report that “harassment of and violence against LGBT+ people remains a major concern and is frequently ignored by the police”[xvii]. Human Rights Watch provides that police officers have continued to respond to reports of homophobic violence with derogatory comments and inaction[xviii]. The above supports AC1 ‘s testimony that he would be taunted by his fellow XXXX which was why he XXXX.

[23] In spite of procedures that the Jamaican government has put in place, it has so far failed to prevent and protect against violence and discrimination, or to punish the perpetrators of crimes

against LGBT persons. In some cases, rogue police officers themselves are perpetrators of violence and extortion against LGBT people. There remains a prevalence of homophobic attitudes within the police force and some police protection remains inadequate. Consequently, there is continuing evidence that LGBT people are not provided with adequate protection and that the authorities fail to punish those responsible for such human rights abuses[xix].

[24] Paragraph 8.6.4 of Guideline 9 also provides that “[t]he existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate. Even if irregularly enforced, the criminalization of the existence or behaviours of SOGIESC individuals may create a climate of impunity for perpetrators of violence and normalize acts of blackmail, sexual abuse, violence, and extortion by state and non-state actors”.

[25] The panel is persuaded by the objective documentary evidence that it would be unreasonable to expect the claimants to seek protection from the Jamaican police and authorities as, in some cases, they may be the agents of persecution. The claimants have therefore rebutted the presumption of state protection. Accordingly, the panel finds that there is no adequate state protection available to the claimants in their circumstances.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[26] Jamaica is a small island country. It is clear from country documentation that LGBT individuals face persecution throughout Jamaica. If returned to Jamaica, AC1 would be forced to conceal his sexual orientation, which he has been doing for the most part of his life. Paragraph

8.7.1 of Guideline 9 states that it is well-established in law that an IFAis not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location. As such, AC1 cannot be expected to conceal his sexual orientation as a way to avoid persecution. Further, the homophobic climate and oppressive treatment towards the families of LGBT individuals are supported by objective evidence cited above. It would not be safe for PC, AC2 and the minor claimants to relocate within Jamaica, given their familial association with a bisexual man. The panel therefore finds that there is a serious possibility of persecution for the claimants throughout Jamaica and therefore they do not have a viable IFA.

CONCLUSION

[27] The panel finds that the AC1 has demonstrated that he faces a serious possibility of persecution in Jamaica on the basis of his sexual orientation as a bisexual man. The panel further finds that PC, AC2 and the minor associate claimants have demonstrated that they face a serious possibility of persecution in Jamaica on the basis of their familial association with a bisexual man. The panel finds that they are Convention refugees pursuant to section 96 of the IRPA. Their claims for protection are accepted.

(signed) Christine Tam

December 20, 2022

[i] Immigration and Refugee Protection Act, S. C. 200 I, c. 27.

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

[iii] Exhibit 10.

[iv] Exhibit 1.

[v] Exhibit 4.

[vi] Exhibits 5, 8, and 9.

[vii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.7.

[viii] Exhibits 5 and 6.

[ix] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.7.

[x] Ibid.

[xi] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.1.

[xii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 2.1.

[xiii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 2.3.

[xiv] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.2.

[xv] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.6.

[xvi] Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94.

[xvii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, Tab 2.3.

[xviii] Exhibit 3, National Documentation Package, Jamaica, 31 May 2022, tab 6.7.

[xix] Ibid.

All Countries Mexico

2022 RLLR 59

Citation: 2022 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: November 21, 2022
Panel: Lesley Mason
Counsel for the Claimant(s): Arvin Afzali
Country: Mexico
RPD Number: TC2-18775
Associated RPD Number(s): TC2-18780
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] XXXX (the principle claimant), her common-law husband, XXXX (the associate claimant), and the daughter of the principle claimant, XXXX (the minor claimant), citizens of Mexico, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the IRPA)[1].

Allegations

[2] The specifics of the claims are set out in the principle claimant’s Basis of Claim Form (BOC);[2] the following is a summary of her allegations.

[3] The principal claimant’s mother, XXXX, worked as a XXXX in the XXXX of the State of Mexico. In 2016 the mother learned that XXXX pesos had been stolen from the judiciary’s bank account and placed in accounts unrelated to the judiciary department. On XXXX, 2016, when XXXX was murdered, the principle claimant’s mother was told by government authorities and the police to keep the situation quiet. On XXXX 2016 the principle claimant’s mother was physically assaulted by two men who identified themselves as members of La Familia Michoacana. The men advised the principle claimant’s mother that the government worked for them. On XXXX 2019 a young man was assassinated in front of the home of the principle claimant’ s mother. Police did not respond when they were called. Months later, while in a car, the principle claimant’ s mother and her partner where shot at which caused the mother to XXXX. The principle claimant’s mother fled to Canada where her claim for refugee protection was accepted on February 2, 2021.

[4] After her mother left the country, the principle claimant moved from her mother’s home to the home of an aunt. Beginning in XXXX 2019 the principle claimant became aware of two men appearing in her area. By XXXX 2020, the principle claimant saw the same two men almost everyday. On a few occasions the principle claimant and associate claimant saw one of the two men following them while they were in their car.

[5] On XXXX, 2020 the claimants relocated to the home of the principle claimant’s mother

because of a family dispute with the principle claimant’s aunt. Shortly thereafter, a neighbour informed the principle claimant that a stranger had been inquiring about her mother. The principle claimant began to notice that she was again being tailed.

[6] On XXXX 2020 the principle claimant learned she was pregnant. On XXXX, 2021 the principle claimant was physically assaulted at her home by two men who were looking for her mother. The men threatened to kill the principle claimant if she did not disdose the whereabouts of her mother. As a result of the assault, the principle claimant XXXX. When the associate claimant attempted to report the assault of XXXX, 2021 on the principle claimant, the authorities refused to accept their complaint because the attackers could not be identified. The claimants moved to the home of the associate claimant’s parents. Within a few days, two men began to tail the claimants. On XXXX 2021, while driving in the city of XXXX 40 minutes from home, the claimants were followed. Subsequently, the claimants were directed by a police officer to the office of a lawyer who informed them that he could file a notarized document for them.

[7] The claimants arrived in Canada on XXXX, 2022 and made claims for refugee protection on June 21, 2022.

Designated Representative

[8] The Immigration and Refugee Protection Act requires the designation of a representative for all claimants less than 18 years of age.[3] For the purposes of the claims for refugee protection, in accordance with subsection 167(2) of the IRPA, the RPD appointed the principle claimant to be the Designated Representative for the minor claimant. At the beginning of the hearing, the principle claimant affirmed her willingness to be the Designated Representative for the minor claimant.

The hearing

[9] The hearing was held by videoconference using Microsoft Teams.

DETERMINATION

[1O] I find that the principle claimant, XXXX is a person in need of protection pursuant to section 97(1) of the IRPA.

ANALYSIS

[11] The issues in this claim, as outlined at the beginning of the hearing, are:

Nexus
Credibility
Internal Flight Alternative

Identity

[12] The claimants’ personal identities and country of citizenship have been established, on a balance of probabilities, as per certified true copies of their passports.[4]

Nexus

[13] Considering section 96 of the IRPA, the principle claimant testified that she fears returning to Mexico because of actions against her and her family of La Familia Michoacana criminal organization. When asked why the cartel members have continued to search for her mother for more than three years, the principle claimant stated that the cartel members want the money that has gone missing. I find persuasive the decision in Bulbarela[5] where the court stated that, “[t]he law is, I believe, settled that neither fear ofreprisals constituting revenge or a personal vendetta, nor fear of criminal acts, constitutes a fear of persecution linked to a Convention ground.”

[14] Therefore, I find that the claims have no nexus under section 96 of the IRPA. I have, thus, considered the claims under section 97(1) of the IRPA

Credibility

Oral Testimony

[15] I found the principle claimant testified in a forthright manner. She made no apparent attempts to embellish her claim. I find the principle claimant to be a credible witness and I have identified no material contradictions, inconsistencies, or discrepancies in her telling of her story. Through her testimony the principle claimant provided a detailed account of events in Mexico which caused the claimants to :flee Mexico and seek refugee protection. Through her testimony the principle claimant established the core elements of her claim.

Personal Documentary Evidence

[16] The claimants provided documentary evidence to support their claims. These include: i) a medical report, issued XXXX 2021, diagnosing the principle claimant’s XXXX caused by a physical assault,[6] ii) a letter from the XXXX issued XXXX 2021, describing the attack upon the principle claimant which XXXX,[7] iii) a letter from the associate claimant’s sister providing information regarding the attack on the principle claimant of XXXX 2021,[8] iv) a letter from the associate claimant’s parents providing information regarding the refusal of Mexican authorities to accept a report of the attack on the principle claimant of XXX 2021,[9] v) a notarized document, issued XXXX 2021 by lawyer XXXX, outlining the tailing of the principle claimant by two unknown persons,[10] and vi) a letter from the XXXX issued XXXX 2021, which outlines the events of 2021 that caused the claimants to flee Mexico[11].

[17] The claimants also provided documentary evidence associated with the claim of the principle claimant’s mother. These include: i) the mother’s BOC,[12] ii) a letter to be served for legal proceedings, dated XXXX 2019, outlining events in the mother’s professional life that subsequently led her to flee Mexico,[13] a medical certificate outlining injuries sustained by the principle claimant’s mother and subsequent hospitalization in XXXX 2017,[14] iii) photographs of the injuries sustained by the mother in XXXX 2016,[15] iv) a letter from the XXXX issued XXXX, 2018, informing the mother of continued personal protection for her and her family,[16] v) the RPD decision accepting the claim of the mother for refugee protection, dated XXXX 2021[17].

[18] I give significant evidentiary weight to the documents provided by the claimants. I find that the claimants’ personal evidence is genuine, reliable, probative and corroborates the allegations of the principle claimant.

[19] I find that the principle claimant has established her allegations, on a balance of probabilities, and has credibly established a subjective basis for her fear, her husband’s fear, and the minor claimant’s fear of persecution in Mexico. I have, therefore, considered the objective evidence in this case.

Objective Evidence

[20] A 2020 InSight Crime report indicates that La Familia Michoacana cartel is very much still active today and partaking in drug trafficking, kidnapping and extortion activities.[18] The report corroborates the notorious ability of the cartel to corrupt government officials due partly to the excessive profits from the cartel’s illegal drug related activities. The objective evidence also indicates that La Familia Michoacana resorts to physical abuse including torture and death to silence those who disclose its involvement in corruption.

[21] I am satisfied that the objective evidence provides an objective basis for the claimants’ fear of persecution at the hands of La Familia Michoacana because of their relationship with the principle claimant’s mother.

Internal Flight Alternative

[22] At the outset of the hearing, I proposed Merida and Campeche as potential IFA locations. The objective evidence indicates that La Familia Michoacana cartel operates in the southwestern region of Mexico,[19] and the IFA locales are outside of the cartel’s area[20].

[23] Internal flight alternative arises when the claimant, who otherwise meets all the elements of the Convention refugee definition, is able to find refuge in a part of his or her country of citizenship where there is nota serious possibility of being persecuted and that that location would not be unreasonable, in all circumstances, including those particular to the claimant, for him or her to seek refuge there. The basis for this two-pronged test is the cases of Rasaratnam[21] and Thirunavukkarasu[22]. The test asks two questions:

The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.[23]

Conditions in that part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him or her to seek refuge there.[24]

[24] Claimants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA areas named.

First Prong

[25] As stated earlier in this decision, the cartel continues to search for the principle claimant’s mother because of a large amount of money that is missing. This testimony is corroborated by the evidence in the mother’s claim for protection. I, thus, find that the agents of persecution are motivated to locate the mother through the principle claimant and her family.

[26] Regarding the capacity of the agents of persecution to locate the claimants, the principle claimant argued that the cartel would be able to locate her anywhere in Mexico. She stated that the cartel is connected to other cartels in Mexico, and it utilizes different methods to track individuals throughout the country, even outside their areas of operation.

[27] The objective evidence supports the principle claimant’s testimony. One Response to Information Request (RIR)[25] addresses the issue of the ability of cartels to track individuals outside their areas of operation, citing methods used by Los Zetas cartel to establish a network among the Mexican cartels:

According to the 2014 Popular Science article, Los Zetas set up a communications network across Mexico using cameras and radios, allowing them to monitor “ever[y ]” aspect of their drug trafficking network, and communicate covertly (Popular Science 25 Mar. 2014). According to a DEA agent quoted by the same source, “‘[i]t essentially linked all the different members of the cartel-the people doing the trafficking and the people doing the protection-so there was a communication between them”‘ (Popular Science 25 Mar. 2014). Sources indicate that this system allowed Los Zetas to monitor drug trafficking within Mexico, into Guatemala (Popular Science 25 Mar. 2014; Wired 27 Dec. 2011) and along the border with the US (Popular Science 25 Mar. 2014). The Popular Science article indicates that the network was used to plan attacks and seize territory held by other groups (Popular Science 25 Mar. 2014). Other sources state that its primary purpose was surveillance (Wired 27 Dec. 2011) or “off the grid” communication (Stratfor 13 Sept. 2011). According to the Popular Science article, the network could be managed remotely, connecting members from different areas to coordinate and communicate about operations (Popular Science 25 Mar. 2014). The article further explains that the cartel uses ground-level informants to gather information.[26]

[28] The same RIR states that cartels use family networks and private investigators to track people, as well as property records in the US and Mexico and place GPS trackers on cars (Assistant Professor, May 28, 2019). Similarly, Texas Monthly, a magazine covering issues such as politics, the environment, industry, and education reports that an attorney with ties to drug cartel leaders, who had been providing information to the US government, was located by means including a GPS tracker on his car and cameras in his neighbourhood. The assistant professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside of their area and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue. Further, in order to extend their influence beyond their areas of operation, cartels rely on the “representation” they have in other areas.[27]

[29] Another RIR states that cartels such as La Familia Michoacan and Los Zetas operate on the same basis/foundation for tracking individuals within Mexico.[28]

[30] A further RIR states that if a criminal group has a very strong motivation to find and retaliate against a certain person, especially if the criminal group were one of the more powerful groups in Mexico, then the ability to track or retaliate against a certain person would be a reasonable concern to have and that if organized crime groups in other parts of Mexico are interested and willing to retaliate against people in Mexico City, they could doit easily.[29]

[31] I find that the cartel has both the motivation and the means to track the claimants throughout Mexico, including in the IFA locations.

[32] The cartel members have shown a strong interest in pursing the principle claimant. They believe the principle claimant can lead them to her mother. The cartel followed the principle claimant from the time her mother left Mexico in 2019. The cartel beat the principle claimant and threatened her life and the lives of her family.

[33] For all of the above reasons, I find on a balance of probabilities that the La Familia Michoacana cartel has the means and motivation to pursue the principle claimant throughout Mexico and that the principle claimant therefore does not have a viable IFA within the country. She faces a risk to her life throughout Mexico.

[34] Since the first prong of the IFA test fails, it is unnecessary to consider the second prong.

CONCLUSION

[35] For the foregoing reasons, I conclude that the principle claimant is a person in need of protection within the meaning of subsection 97(1)(b) of the IRPA. Therefore, I accept her claim.

[36] The claims of the associate claimant and the minor claimant are dependent upon the claim of the principle claimant. I, therefore, find that the associate claimant and the minor claimant are persons in need of protection within the meaning of subsection 97(1) of the IRPA. Therefore, I accept their claims.

(signed) Leslie Mason

November 21, 2022

[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 96, 97(l)(a) and 97(l)(b).

[2] Exhibit 2.1

[3] IRPA, supra, footnote 1.

[4] Exhibit 1.

[5] Bulbarela, Oscar Cessa v. MC.I. (F.C.T.D., no. IMM-2992-01), Dawson, June 4, 2002, 2002 FCT 636.

[6] Exhibit 5, pp 5-6

[7] Exhibit 5, pp 17-18

[8] Exhibit 5, pp. 50-51

[9] Exhibit 5, pp. 52-53.

[10] Exhibit 5, pp 9-10

[11] Exhibit 5, pp. 13-16

[12] Exhibit 5, pp. 60-71

[13] Exhibit 5, pp. 81-82

[14] Exhibit 5, p. 74

[15] Exhibit 5. Pp. 72-73

[16] Exhibit 5, 75-76

[17] Exhibit 5, pp. 86-90

[18] Exhibit 3, National Documentation Package (NDP) for Mexico, (September 29, 2022), item 7.25

[19] Exhibit 3, NOP for Mexico, (September 29, 2022), item 7.2

[20] Exhibit 3, NOP for Mexico, (September 29, 2022), item 1.4

[21] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710.

[22] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

[23] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710.

[24] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

[25] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.15, RIR MEX 106302.E

[26] Ibid.

[27] Ibid.

[28] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.32, RIR MEX200968.E

[29] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.8

All Countries India

2022 RLLR 58

Citation: 2022 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2022
Panel: Moyosore Sadiq-Soneye
Counsel for the Claimant(s): Meryem Haddad
Country: India
RPD Number: TC2-20551
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

[2] The allegations are fully set out in the claimant’s Basis of Claim form (BOC) located in exhibit 1. In summary, the claimant is a 51year old Sikh XXXX who fears persecution at the hands of the Punjab police on the basis of an imputed political opinion. The claimant alleges that he was unlawfully arrested twice by Punjab police officers (police), who took his fingerprints, photos, and signatures on blank papers while the claimant was in custody. The police allegedly falsely accused the claimant of being a militant and a mediator between Muslim and Sikh militants.

DETERMINATION

[3] Having considered all of the evidence, including the claimant’ s testimony, the panel finds that the claimant has established a well-founded fear of persecution based on a Convention ground. The panel concludes that the claimant is a “Convention refugee” as per section 96 of the IRPA.

ANALYSIS

Identity

[4] The claimant established his personal identity and nationality on a balance of probabilities, through his testimony and a copy of his Indian Passport.[2]

Nexus

[5] The claimant allegedly fears for his life due to an imputed political opinion of being a militant. As such, his claim has been analyzed pursuant to section 96 of the IRPA.

Credibility

[6] In assessing the credibility of the evidence presented by the claimant in support of his refugee claim, the panel is guided by the principles established in the Federal Court of Appeal’s decision of Maldonado.[3] The principle asserted in Maldonado is that “when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness.” The claimant testified in a spontaneous, persuasive, and straightforward manner and there were no major inconsistencies in his evidence that were not reasonably explained. The claimant’s testimony was relevant and probative toward establishing his credibility.

[7] The claimant testified that he is a XXXX and XXXX in Punjab. The claimant testified that he assisted a young man (F.K) to gain employment at the place that he worked, and he also provided shelter for him between XXXX to XXXX 2014. The claimant testified that F.K’s friends often visited F.K at the claimant’s place even though the claimant did not know them personally. The Punjab Police alleges that F.K was linked with militants. The claimant testified that he has been unlawfully arrested twice, tortured, and falsely accused of being a militant by the Punjab police. The claimant testified that the Punjab police had to be bribed heavily before they released him and that they took his photograph, fingerprints, and signature on blank sheets of paper. The claimant testified that asides the two unlawful arrests, the Punjab police often harassed and raided his house and questioned him about militants. The claimant testified that the Punjab police claimed that the militants in their custody admitted links with the claimant, and that the militants in their custody, who were F.K’s friends had the claimant’s name in their diaries because they visit F.K at his home.

[8] The claimant testified that he has no links to militants, and he is nota militant. The claimant testified that he became a target of the Punjab police because he provided shelter to F.K, and welcomed F.K’s friends as guests. The Punjab police officers claim that F.K and his friends are militants. The claimant testified that the Punjab police became more aggressive with him when they discovered that he consulted an advocate for legal recourse. The claimant testified that the Punjab police physically assaulted him and asked him about the location where militants keep their weapons and where F.K and friends are located, and they assaulted him because he did not know and could not provide the answers that the Punjab police wanted. The claimant testified that the police harassed and exploited his relatives in Chandigarh. The claimant testified that the Punjab police believe that he is a militant aiding the militants in India while he is abroad and that they continue to harass his relatives about when he would return.

Delay In Claiming

[9] The claimant arrived in Canada in XXXX 2014, and he sought refugee protection in May 2019. The claimant explained that he delayed seeking protection because the agent that assisted him in fleeing India, told him he should only speak with a particular set of people and agents. He explained that he trusted the agent and paid for the services of the agents, who then delayed and threatened him multiple times. The agency never got the work permit that they promised to assist him with, and they deceived and defrauded him. The claimant provided a copy of an article corroborating that the agency had defrauded many people, the article is located in exhibit 5. The panel is empathetic about the deceit and exploitation that the claimant faced at the hands of these agents. However, the panel finds that the explanation is not reasonable because he faced a risk of getting remove to a country that he feared and because waiting almost five years for uncooperative agents is not reasonable. The panel finds that it is reasonable to expect that the claimant should have sought out alternative professional immigration advice to avoid the risk of being removed. The panel draws an adverse finding in this regard. However, this adverse finding does not outweigh the cumulative credible evidence in this claim.

[10] Apart from his oral testimony, the claimant has also submitted corroborating documentary evidence to support his claim. This evidence is part of Exhibit 4. The panel has no reason to doubt the genuineness of these documents and accepts them as genuine and the panel assigns the documents high weight due to their probative value and relevance. Exhibit 4 contains but is not limited to the following documents:

Affidavit from the claimant’s wife: corroborating the claimant’s allegation of unlawful arrest, continuous harassment of the claimant and his, wife and relatives by the Punjab and Chandigarh police and a continuing interest in the claimant by the Punjab police. the affidavit also corroborates the claimant’s intention to seek legal resolution by consulting an advocate. The affidavit also states that the Punjab police have now claimed that the claimant must be a militant that is assisting other militants from outside India.

Affidavit from the claimant’s aunt: corroborating the claimant’s allegations, including the claimant’s move to Chandigarh to avoid harassment from the Punjab police and the Chandigarh police’ search for the claimant.

Affidavit from the Sarpanch: corroborating the details of the two unlawful arrests of the claimant by the Punjab police. The bribe paid for the release, the false accusations that the claimant is linked to militancy and the continuing interest in the claimant by the Punjab police.

Flyers and posters that corroborate that the claimant is a XXXX.

[11] Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out above, the panel finds on a balance of probabilities that the claimant has been falsely accused by the Punjab police of being a militant because he provided shelter to a suspected militant, F.K. and for hosting F.K’s friends who are suspected to be militants too. The panel finds that the claimant has established his subjective fear of persecution based on a perceived political opinion as a militant.

Objective Evidence

[12] The claimant has established his subjective fear and the panel finds that the subjective fear is objectively well founded by the documents in the National Documentation Package (NDP) located in exhibit 3.

[13] The National Documentation Package (NDP) corroborates police abuse being a significant human rights concern in India. Item 2.1 of the NDP, The US Department of State report refers to extrajudicial killings, torture, arbitrary arrest, and detention by police, as well as widespread corruption and impunity. Item 10.1 of the NDP states that the police use Torture to punish, to gather information or to coerce confessions with impunity. Those seeking accountability for police abuse often face intimidation and threats. In item 2.1 of the NDP there are reports about security forces torturing, raping, and mistreating insurgents, and alleged terrorists in custody, as well as reports of government agents committing extrajudicial killings of suspected criminal and insurgents. Item 4.9 of the NDP reports that Punjab police believes that militancy is returning to the state. Item 12.4 reports that Sikh youths were arrested by Punjab police for allegedly attempting to revive militancy in Punjab. The same item 4.9 of the NDP further reports that there has been regular arrest of alleged terrorists often based on false charges and the arrests are used as a tool to silence or harass political opponents.

[14] Item 1.4 of the NDP states that certain individuals are often charged with terrorism related cases which can result in being detained for years before being released due to a lack of evidence. Item 4.9 of the NDP reports that there are several notable examples of everyday people who are suspected of associating with Sikh militants and being arrested under ostensible and unverifiable evidence. There are some accused that are sentenced to prolonged sentences including life in prison.

[15] Item 10.1 of the NDP corroborates the allegation of the police not following proper arrests procedures, which makes suspects more vulnerable to abuse and cover up of police mistreatment.

There has been failure to hold police accountable for custodial deaths as internai departmental inquiries to examine wrongdoing rarely find the police culpable. This same item of the NDP supports the allegation that families of victims of police mistreatments leading to custodial deaths, seeking justice often face intimidation and threats. There is information about the persistence of custodial torture and ill-treatment by the police. While there is legislation in place on how lawful arrests should be made, the lack of training and police reforms leads to disregard of the legislation by the police.[4] There are also instances where police officiais are said to intentionally give false evidence and lay false charges against a suspect. Item 10.7 of the NDP gave instances of where terror cases have resulted in acquittais, where the court concluded that false charges were levelled against suspects.

[16] The panel finds that the claimant’s subjective fear is objectively well-founded, and that on a balance of probabilities the claimant faces a serious possibility of persecution in India based on an imputed political opinion.

State Protection

[17] In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence to the contrary. The claimant has been arrested, harassed, falsely accused, and tortured on false accusations of being linked to militancy by the Punjab Police. The Punjab Police force is the agent of persecution. The claimant tried to seek legal recourse and resolution to the Punjab police officers’ harassment and raids by speaking to an Advocate and the Punjab police discovered this and arrested the claimant a second time. The Punjab police were more aggressive with him and falsely accused him of being a militant and attempting to make false complaints against the Punjab police.

[18] Where agents of the state are the persecutors, claimant’s efforts to seek state protection need not exhaust all avenues of recourse. As set out above, there is objective country evidence indicating a lack of professionalism, high level of abuse and misconduct, and severe corruption and impunity issues within the police forces in India.[5] Further, Item 1.5 of the NDP also confirms that corruption is widespread among all levels of government in India and corruption remains a part of daily life across India with facilitation payments and bribes common, particularly at the local level.[6] Item 4.9 of the NDP reports states that the Punjab police continues to violate the human rights of Sikhs by arresting Sikh youths illegitimately and labelling them with blanket term ‘dangerous terrorist’. As a result, there is an unwillingness to protect citizens against police misconduct generally. The panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state considering their particular circumstances. As a result, the panel finds that the claimant has rebutted the presumption of state protection.

Internal Flight Alternative (IFA)

[19] The panel identified Kolkata and Mumbai as IFAs at the beginning of the hearing. For a refugee claim to succeed, the claimant has the burden to establish that there is no viable internal flight alternative (“IFA”) within his country of nationality. The test for an IFA was articulated by the Federal Court of Appeal in Rasaratnam.[7] For a claim to succeed, claimant bears the burden of satisfying the panel, on a balance of probabilities, that a proposed IFA:

is not safe from a serious possibility of persecution or from being personally subject to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment; or,

is objectively unreasonable or unduly harsh in all the circumstances, including those particular to the claimant.

[20] The Punjab Police force is the agent of persecution, and the panel has considered whether the Punjab police in India has the means and motivation to track down the claimant in Mumbai and Kolkata. According to the Associate Professor in item 12.8 of the NDP, security services are more likely to focus on separatists or militants because they represent a “perceived political threat to the unity of India.” In item 12.8, a WSO representative states that terrorists are seen as anti national can be legitimately targeted for violence. The objective evidence shows that the police as government authorities have the means to pursue the claimant throughout India.

[21] The claimant testified that he is famous because of his XXXX and XXXX and that in Canada some people recognize him and ask for selfies, thus he would be at risk of being recognized anywhere in India. He testified that he would be easily recognized in other parts oflndia due to his popularity in the Punjab. The claimant testified that after his release from the second unlawful arrest and detention by the Punjab police, he fled to his relatives’ place in Chandigarh. During his time in Chandigarh the Punjab police harassed his wife and relatives leading them to tell them where the claimant was in Chandigarh. The Chandigarh police raided his relatives’ place and arrested his relatives in Chandigarh based on the information they got from his relatives in the Punjab. The claimant has shown that the Punjab police have continuing interest in him by periodically inquiring about him from his relatives. The claimant testified that the Punjab police inquired about him from his wife and relatives as recently as last month.

[22] The Crime and Criminal Tracking Network and Systems (CCTNS) is a database with information on crime and criminals to interconnect police stations across the country.[8] The aim of the CCTNS is to create a nationwide network that integrates data and records of crime, but it appears to still be a work in progress. According to the June 2018 RIR, while 94% of police stations across India have CCTNS hardware, there are varying levels of implementation of the CCTNS in different states and large disparity in efficiency between police stations.[9] The one area where there appears to be the most robust inter-state police communication is in respect of major crimes like terrorism.[10] Similarly, surveillance schemes implemented in India are particularly focused on terrorism.[11] The police falsely accuse the claimant of being linked to militants and terrorists and so the panel finds on a balance of probabilities that the claimant is considered a persan of interest to the Punjab police. The panel finds that there is a high possibility that the Punjab may use the inter-state police communication in regard to the claimant because the false accusation is in regard to major and serious crimes like terrorism, and militancy.

[23] The panel has observed that the objective documentary evidence differs on the extent to which the CCTNS is accessible to and used by police across India. However, there is sufficient evidence contained within the NDP to establish that the CCTNS exists in at least some police stations in the states of Mumbai and Kolkata, where the proposed IFAs are located.[12] The NDP also gives some indication that during tenant verifications, tenant information forms are used by police superintendents to inquire in other states as to the criminal history of the tenant and that, while slow, according to some sources responses to these inquiries are generally eventually received.[13] Tenant verifications are routinely conducted for the purpose of confirming that tenants are not wanted criminals, terrorists, or fugitives from the law.[14] The panel finds that the police have the means and ability to find the claimant anywhere in India.

[24] Given that the claimant has established that the Punjab police have both the means and motivation to pursue him in the IFAs proposed, the panel finds, on a balance of probabilities, that there is a serious possibility of persecution in the proposed IFAs because the claimant is perceived to be a militant who is aiding his co-militants from outside India. The Punjab police continue to harass his family and relatives to inquire about him. The Panel finds that the claimant has established that he faces a serious possibility of persecution throughout India and that there is therefore no viable internal flight alternative for him. Since the first prong of the analysis has not been met, there is no need to assess the second prong.

CONCLUSION

[25] Having considered all the evidence, the panel concludes that the claimant has established that he would face a serious possibility of persecution on a Convention ground should he return to India as set out in section 96 of IRPA. His refugee claim is therefore accepted.

(signed) Moyosore Sadiq-Soneye

October 7, 2022

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

[2] Exhibit 1.

[3] Maldonado, Pedro Enrique Juarez v. M Cl. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

[4] Exhibit 3: National Documentation Package, India, 30 June 2022, tab 10.1: “Sound by Brotherhood”: India’s Failure to End Killings in Police Custody. Human Rights Watch. Jayshree Bajoria. 19 December 2016.

[5] Exhibit 3: National Documentation Package, India, 30 June 2022, tab 2.1: India. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

National Documentation Package, India, 30 June 2022, tab 9.8: Transparency of Information about Arrests and Detentions. Implementation of Section 41C of the Code of Criminal Procedure, I 973: A Scoping Study of Compliance across 23 States and the UT of Delhi. Commonwealth Human Rights Initiative. 22 June 2016. &

National Documentation Package, India, 30 June 2022, tab 9.9: Extrajudicial detention, including instances of torture by authorities; state response and recourse available to victims; documents issued to persons detained or interrogated by police (2016-April 2018). Immigration and Refugee Board of Canada. 24 May 2018. IND106099.E.

[6] Exhibit 3 – NDP, India, 30 June 2022, Tab 1.5: DFAT Country Information Report: India, Australia. Department of

Foreign Affairs and Trade, 10 December 2020.

[7] Rasaratnam v Canada (MEI), [1992] 1 FC 706 (FCA).

[8] Exhibit 3, NDP, item l 0.6: Surveillance by state authorities; communication between police officers across the country, including the use of CCTNS (IND106120.E)

[9] Exhibit 3, NDP, item 10.6: Surveillance by state authorities; communication between police officers across the country, including the use of CCTNS (IND106120.E)

[10] Exhibit 3, NDP, item 10.2: Communication between police officers across the country (IND 105494.E), May 2016.

[11] Exhibit 3, NDP, item 10.6: Surveillance by state authorities; communication between police officers across the country, including the use of CCTNS (IN Dl 06120.E)

[12] Exhibit 3-NDP, India, 16 April 2021, item 10.13: Police databases and criminal tracking, including relationship with the Aadhaar systems and tenant verification; capacity to track persons through these systems (2019-June 2020), Immigration and Refugee Board of Canada, IND200259.E. I0. I

[13] Exhibit 3-National Documentation Package, India, 16 April 2021, tab 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata, and Bengaluru (2016-May 2019), Immigration and Refugee Board of Canada, 14 May 2019, INDI06289.E.

[14] Exhibit 3: National Documentation Package, India, 16 April 2021, tab 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata, and Bengaluru (2016-May 2019), Immigration and Refugee Board of Canada, 14 May 2019, INDI06289.E.

All Countries Nigeria

2022 RLLR 57

Citation: 2022 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2022
Panel: Ha Lu
Counsel for the Claimant(s): Naga S. Obazee
Country: Nigeria
RPD Number: TC2-24356
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

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

[2] The claimant XXXX XXXX XXXX, claims to be a citizen of Nigeria, and seeks refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[3] I have considered guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, and Guideline 9: Proceedings before the Immigration and Refugee Board involving sexual orientation, gender identity and expression and sex characteristics, and have applied them within this decision. The names of all third parties have been reduced to their initials for privacy and safety reasons.

[4] I find that you are a Convention refugee as you have established on a balance of probabilities, that you meet the definition of a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, that is persecution based on membership in a particular social group bisexual woman.

[5] The allegations for your claim are outlines in the narrative to your Basis of Claim form at Exhibit 2.

[6] In summary, that as a bisexual woman you face legal implications and sanctions as well as harm from people in your state, such as the police and your community should you return to Nigeria.

[7] You allege that you discovered same sex attraction when you were in secondary school and began an intimate relationship with a female classmate BA (ph). When she was caught with another female classmate, there were rumours about you and BA that prompted you to have a boyfriend to cover up your sexual identity. You testified that your next same-sex relationship was with a woman named OB, which lasted less than a year until you both graduated from university.

[8] You allege that you met your last girlfriend BM, at second-year university through mutual friends. You both went to a club that was tolerant of SOGIESC individuals but unfortunately it was raided by the police. While you managed to escape the police raid, you were later arrested for your sexual orientation.

[9] You allege being insulted and harassed by your community which impacted your business and led you to leave Nigeria. You allege that the cultural hatred of homosexual activities and the legislation which punishes individuals engaged there in, is a factor everywhere in Nigeria. In other words, you allege that neither state protection nor an internal flight alternative is available to you in Nigeria.

[10] Your allegations establish a nexus to the Convention ground of a particular social group, specifically bisexual woman. I have therefore analyzed the claim pursuant to section 96 of the Immigration and Refugee Protection Act.

[11] As bisexual is the term you testified that you identify with, this decision will also refer to bisexual throughout the decision in accordance with the SOGIESC Guideline.

[12] You have established on a balance of probabilities, your personal and national identity by a copy of your valid Nigerian passport which were seized by the refereeing immigration office and found in Exhibit 1.

[13] Sworn testimony is presumed to be credible unless there is a valid reason to doubt it. I am cognizant of the difficulties faced by individuals in establishing their claims, including different levels of education, cultural factors and the milieu of the hearing room. Overall, I have found you to be a credible witness.

[14] You are educated and have worked professionally in Nigeria as an XXXX XXXX for over 10 years. Throughout your testimony you have demonstrated a willingness to ask for clarification when you did not fully understand a question. In light of your overall profile, and your ability to communicate effectively, I reasonably expected you to speak with insight and detail about your aspects of your life related to your sexual orientation. As a result, I inquired extensively about how your understanding of your sexual orientation evolved, how that awareness has impacted you, and how your sexual orientation led you to seeking safety in Canada. I find that you have credibly established your sexual identity.

[15] You testified about past same-sex relationships and opposite-sex relationships. You were able to answer my questions in a manner which was consistent with what one would expect for relationships of this nature. You described in sufficient details genuine relationships with your ex-girlfriends BA, OB, and BM, and there were no major inconsistencies or omissions with respect to these relationships. You testified of not displaying your affections in public for fear of discovery and arrest, and meeting with your girlfriends at each other home. I therefore find on a balance of probabilities, that you have established that you have engaged in same-sex relationships which supports your profile as a bisexual woman.

[16] You testified that once you came to Canada in XXXX 2022, you spent more time exploring your sexuality and living more freely, and that you are somewhat open with your sexual orientation.

[17] You provided a letter of advocacy from the XXXX, and a reference letter from the XXXX XXXX XXXX of Toronto, found in Exhibit 5.4., that confirms your interest and active participation in various 2SLGBTQ+ activities.

[18] I find these documents credibly establishes your identity and engagement in 2SLGBTQ+ community, and therefore assign them full weight.

[19] I find your testimony and the documentary evidence credibly further establishes on a balance of probabilities, your profile as a bisexual woman. Specifically, how you express your sexual identity openly which contrasts the way you had to hide your sexual identity in Nigeria.

[20] You testified in detail about self-identification and exploration in Nigeria with respect to sexual identity as a bisexual person. Which to you means having an attraction to women and men. You testified about how same-sex activity is against the law in Nigeria and that the community punishes same-sex relationships by reporting to the police or what you call jungle justice.

[21] You described feeling scared of being discovered, so you dated a man to quash rumours of having same-sex attraction with another classmate. You describe the public corporal punishment of your first girlfriend BA, which amplified your fear of aggression and hostile behaviour towards you as a bisexual woman.

[22 In assessing your overall credibility, I find that your testimony was consistent with someone whose sexual orientation did not conform to societal norms and expectations, and did not comply with national legal requirements. I find that your description of your own strategies for mitigating risks to life and safety, reflected an authentic and lived experience. As well, I find your ability to testify was sincere and the way you spoke was compelling, and answering questions about being publicly outed as bisexual, indicated a significant degree of experience trauma.

[23] Based on this finding and the credibility of your allegations, I also find you have established your subjective fear of persecution. I further find on a balance of probabilities, that you have an objective basis for your fear of returning to Nigeria because of the documented country conditions.

[24] The National Documentation Package for Nigeria, which is found at Exhibit 3, have several sources that indicate prosecution based on sexual orientation by the government found at Items 2.1, 2.6, 2.8, 2.9, as well as research found at ITEM 6.2, 6.7,6.11 and 6.12. For example, Item 6.12 indicates that a 2014 law effectively renders illegal all forms of actively supporting or promoting lesbian, gay, bisexual, transgender, and intersex LGBTI rights. According to the law, anyone convicted of entering into a same-sex marriage or civil union may be sentenced to up to 14 years imprisonment. The law also criminalizes the public show of same-sex amorous affection. The report also indicates that LGBTI persons reported increase harassment, threats, discrimination, and incidents of violence against them based on their real or perceived sexual orientation or gender identity, and face a range of discriminatory treatment from societal actors because they are perceived to be different. They are frequently victims of physical violence, and psychological abuse, extortion and discrimination in different aspects of daily life.

[25] As another example, Item 6.2 states that the harsh laws enforced in Nigeria and its effects on LGBT people had been widely documented. In fact, Nigeria has been cited as one of the most homophobic countries in the world. Not only due to the severity and comprehensiveness of its legislation that criminalizes same-sex relations, but also for the discriminatory and violent treatment given to LGBTI people.

[26] And finally in Item 6.11 sexual minorities may face violence from family members, of society, and state authorities, and can be killed by community members as a result of their sexual orientation and /or gender identity and expression.

[27] To summarize, the National Documentation Package for Nigeria makes multiple references to the maltreatment of both men and women who chose to have same-sex relationships. I am satisfied there is ample evidence of an objective basis for your subjective fear in this case. I find you have demonstrated on a balance of probabilities, that you are a bisexual woman, and that you have experienced persecution in Nigeria because of your sexual orientation.

[28] I therefore find you have demonstrated a subjective fear of persecution in Nigeria that is objectively well-founded.

[29] In assessing state protection, there is a presumption that the State can protect its citizens, except in situations where the State is in complete breakdown. As noted in section 8.6.4 of the SOGIESC Guideline, the existence of laws criminalizing nonconforming sexual orientation, sexual behaviours, gender identities or expressions or sex characteristics and the enforcement of these laws by the State, may be evidence that state protection is inadequate.

[30] As same-sex sexual activity is criminalized in Nigeria and since homophobic violence continues with impunity, I find there is clear and convincing evidence that state protection in Nigeria would not be forthcoming to you as a bisexual woman, should you try to seek it upon return to that country. I find that you have rebutted the presumption of state protection.

[31] I have also considered whether there is a viable internal flight alternative. It is well established in law that an internal flight alternative is not viable if the SOGIESC individual must conceal their SOGIESC in order to live in that location.

[32] Given the State’s capacity, the criminalization of same-sex conduct, and homophobic attitudes that exist country-wide, as outlined in the objective evidence cited earlier, I find there is no safe place for you to live openly as a bisexual woman in Nigeria, and nowhere in Nigeria where you would not face a possibility of persecution based on your membership in this particular social group.

[33] As noted in section 8.7.1 of the SOGIESC Guideline, it is well established in law that an internal flight alternative is not viable if you must conceal your SOGIESC in order to live in that location.

[34] Therefore, I find that there is no viable internal flight alternative available to you anywhere in that country.

[35] In conclusion, on the totality of the evidence, I find that you have a serious possibility of persecution in Nigeria on the grounds of membership of a particular social group as a bisexual woman. I find you to be a Convention refugee, and I accept your claim.

——— REASONS CONCLUDED ———

All Countries Iran

2022 RLLR 56

Citation: 2022 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: July 12, 2022
Panel: Gregory Israelstam
Counsel for the Claimant(s): Adam Wawrzkiewicz
Country: Iran
RPD Number: TC2-05212
Associated RPD Number(s): TC2-05215, TC2-05217
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: XXXX XXXX, XXXX XXXX and XXXX XXXX seek protection pursuant to section 96 of the Immigration and Refugee Protection Act.

[2] All three (3) claimants are citizens of Iran.

[3] XXXX and XXXX are married to each other, and their son is XXXX.

[4] All three (3) claimants are citizens of Iran. All three (3) claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.

[5] At the time of the hearing, XXXX was a minor child and XXXX acted as XXXX designated representative.

[6] The allegations of the claim can be found in the claimants’ Basis of Claim forms and in the testimony of the claimants.

[7] The claimants allege a fear of persecution on the basis of their imputed political opinion. In particular, the claimants allege that, should they return to Iran, they would be subject to arrest, detention, and possible prosecution by agents of the State, because the State imputes to them the political opinion of opposing the Iranian government.

[8] The claimants have established, in my view, a serious possibility of persecution on the Convention ground of political opinion, should they return to Iran, pursuant to section 96 of the Immigration and Refugee Protection Act.

[9] As such, all three (3) claimants are Convention refugees.

[10] At the outset of the hearing, I identified credibility as the primary matter for the hearing to focus on. In particular, an assessment of credibility was required to determine whether the claimants were, as alleged, fearful of persecution in Iran, because of their political opinion.

[11] With respect to identity.

[12] On file, at Exhibit 1, is a certified copy of each of the claimants’ passports from Iran. Other identification documents can be found at Exhibit 5, submitted by the claimants.

[13] Through these documents and their testimony, the claimants have established their personal identities and their citizenship of Iran.

[14] With respect to credibility.

[15] XXXX and XXXX testified at the hearing.

[16] Claimants testifying under oath or affirmation are presumed to be telling the truth, unless there are valid reasons to disbelieve the testimony.

[17] In this case, I find no valid reasons to reject either XXXX or XXXX testimony, with regard to the fear they have of persecution in Iran.

[18] Both claimants who testified were straightforward in their testimony. Both claimants testified spontaneously and in a forthright manner. There were no major material inconsistencies or contradictions in their testimony. Their testimony was consistent with the narrative found in their Basis of Claim forms, consistent with each other’s testimony, and was supported by a number of documents, submitted as part of Exhibit 5, including letters of support from people who witnessed some of the events that led the claimants to leave Iran.

[19] XXXX testified that she was first challenged about a political opinion of hers while XXXX in 2008. The result was that she was dismissed from her XXXX XXXX.

[20] She travelled to Sweden to do a master’s degree and testified that, on her return to Iran, she was questioned at length by custom and immigration officers about her trips outside Iran and her history of making anti-government comments.

[21] She testified that she was required to sign an undertaking not to make such comments again and she testified that, after this, she found it difficult to get a state-approved job.

[22] XXXX testified that he made comments while XXXX an XXXX XXXX, regarding the Muslim takeover of Constantinople. He testified that he was summoned to the Herasat Office and informed that he was being fired for making unislamic (ph) comments.

[23] Both claimants testified about attending a party in XXXX 2020, one (1) where alcohol was served. This party was raided by police and the claimants were arrested, then separated. XXXX was released after a day, upon payment of a fine. XXXX, however, was not released for five (5) days and was mistreated during her detention, including being sexually assaulted.

[24] Both claimants testified that, after they were released, they felt like they were being monitored and followed. At one (1) point, an anonymous caller telephoned their home to threaten their son and to repeat recent conversations the claimants had had amongst themselves privately, suggesting that their place of residence was being bugged.

[25] The claimants decided it was no longer safe for them to stay in Iran and left shortly after this.

[26] As noted, I find the claimants to be credible.

[27] Taking into account the supporting evidence, I’m satisfied, on a balance of probabilities, that both the adult claimants came to the attention of the Iranian government, because of comments they made while XXXX, which could have been viewed as criticism of the Iranian government or its policies.

[28] I’m satisfied that both adult claimants have been arrested and are now the subject of increased governmental scrutiny.

[29] I’m satisfied that the claimants have suffered persecution in the past and that they have a fear that such persecution will continue in the future.

[30] Having found the claimants to have a subjective fear of persecution, I turn to the question of whether this fear has an objective basis.

[31] As noted above, the claimants have credibly described events and incidents that support the allegation that the Government of Iran believes them to be opposed to the Iranian government.

[32] Country condition reports in the Immigration and Refugee Board’s National Documentation Package for Iran, dated April 29th, 2022, support the claimants’ allegations that having been publicly branded as being anti-regime, they are now at heightened risk of increased scrutiny. People who have been subject to government scrutiny may have difficulty getting officially sanctioned appointment in the future.

[33] Item 4.4 of the National Documentation Package for Iran highlights that those who are thought to be anti-government activists may be subject to harassment, arrest, and prosecution in Revolutionary Courts, where the level of procedural fairness is typically lower than at other criminal tribunals in Iran.

[34] I conclude that all three (3) claimants have an objective basis for their fear of persecution.

[35] Accordingly, all three (3) claimants have established a well-founded fear of persecution.

[36] With respect to state protection and internal flight alternative.

[37] As the State is the agent of persecution, the claimants have no reasonable internal flight alternative within Iran.

[38] For the same reason, as the State is the agent of persecution, there is clear and convincing evidence that the State is unable or unwilling to protect the claimants against persecution.

[39] This is my conclusion.

[40] Based on the evidence before me and the testimony of the two (2) adult claimants, I conclude that all three (3) claimants have established a serious possibility of persecution on the Convention ground of political opinion, if they were to return to Iran.

[41] All three (3) claimants are, therefore, Convention refugees as described in section 96 of the Immigration and Refugee Protection Act.

[42] All three (3) claims for protection are accepted.

——— REASONS CONCLUDED ———

All Countries India

2022 RLLR 55

Citation: 2022 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: June 21, 2022
Panel: Carolyn Adolph
Counsel for the Claimant(s): Harjot Singh
Country: India
RPD Number: TC2-05981
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: This is a decision for XXXX XXXX, file number TC2-05981. I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally.

[2] You are claiming to be a citizen of the Republic of India and no other country. And you are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

I ca [sic]

DETERMINATION

[3] I find that you are a Convention refugee because you face a serious possibility of persecution. And here are my reasons.

ALLEGATIONS

[4] You allege the following.

[5] You are a citizen of India. You allege that you are persecuted because of your decision to become a practising member of the Jehovah’s Witnesses.

[6] In addition, you say that as a Dalit, you are a person who is subjected to rules that include your inability to choose your own religion. And as a result, you say that members of Indian society at large as well as Hindus, as well as extremist Hindus, including the members of the BJP, as well as the police in your home state of Punjab, all are part about the fabric of your persecution. You say that you fear a risk to your life if you were to return to India. And you say that there is no state protection or a viable internal flight alternative for you in India.

Identity

[7] Your personal identity as a citizen of India has been established by your testimony and the supporting documents filed in the exhibits, including the copies of the passport that I found there, which bears your photograph, which you know is unmistakeably you.

[8] And therefore, I find, on a balance of probabilities, that both personal identity and country of nationality have been established.

Nexus

[9] I find that there is a link between what you fear and one (1) of the five (5) the Convention grounds, specifically, religion. And further, I find that your claim cannot be properly understood unless we also take into account your membership in a particular social group, Dalits. And so, I find that it is the combination of both of these Convention grounds that represents your risk.

Credibility

[10] In terms of your general credibility, I have found you to be a highly credible witness. And I, therefore, accept on a balance of probabilities what you have alleged in your oral testimony as well as in your Basis of Claim form.

[11] Your testimony and the evidence are presumed to be true. And this includes two (2) major things. Number one (1) that you established with me that you are a Jehovah’s Witness through your credible testimony about your beliefs and what drew you to that faith, and why it is that you believe so deeply that your home is there. And the other thing is that you have established through your credible testimony as well as supporting documents that you are a member of a Dalit caste. And so, I accept these things to be true.

[12] You also told me that your father was taken into police custody and tortured until he later died because of what happened in there. You have testified to me that your brother has been in hiding since 2018 because of the whole concern that the society around you had with your decision to become a Jehovah’s Witness. And you have also established with me through your credible testimony alone that you were physically attacked.

[13] And so, I also want to point out that there are documents on file to support your allegations, and these include the medical records of your injuries, your documents to support your membership of a scheduled cast via your father. You provided an affidavit concerning the death of your father after having been in police custody. And so, I find all of these things to have been established, and therefore I find that the claimant has established that he fears death at the hands of the police and death at the hands of members of the general public because of his decision as a Dalit to become a Jehovah’s Witness.

[14] And I find that the claimant has established his subjective fear of returning to India.

Objective Basis

[15] The BJP was named by the claimant as an organization he fears, including its membership. This party is in its second term as a central government of India. During its tenure, intolerance against non-Hindus has been on the rise. India’s Constitution defines the nation as secular, and it protects freedom of religion or belief, including the right to proselytize, as Jehovah’s Witnesses are called upon to do. This is according to the United States Commission on Religious Freedom 2020 report, at Tab 12.2. However, religious freedom, it reports, is “subject to public order” and this has been used to justify anti-conversion laws.

[16] The BJP has also challenged the secular principles of the constitution by implementing policies that reflect Hindu nationalist ideology. And its rise in extremist violence is documented at Tab 12.8. The Panel accepts this subjective evidence and finds it establishes a climate of hostility in India generally towards non-Hindus.

[17] Now, the claimant has established he is a member of the Dalit caste, and the objective evidence at Items 13.2 and 13.4 indicate that caste-based discrimination is prevalent everywhere in India.

[18] Now, one (1) of these documents talks in-depth about the attraction many Dalits feel toward Christianity, including Jehovah’s Witnesses, because there is generally a climate in which all church members are treated as equals. Now, the claimant testified that he had not even been allowed to fully practise his Hindu faith because he is a Dalit. However, he testified Jehovah’s Witnesses welcomed him with open arms.

[19] According to these documents, violence against Dalits continues and that Dalits have been victims of violent attacks by vigilante cow protection groups who are Hindus. These incidents have involved killings, mob violence, assaults, and intimidation, and the Panel accepts this subjective evidence and finds that it establishes the following.

[20] Number one (1), there is a longstanding hostility in the general Indian population toward Dalits, and there is growing hostility in the general Indian population, which is majority Hindu, towards non-Hindus.

[21] Furthermore, the objective evidence with regard to the police in India is worthy of consideration, as your counsel pointed out. For this, the Panel relies on Tabs 10.8 and 10.10. These establish that the police in India are a law onto their own. They operate with impunity, and they use torture as a way to extract information. The Panel accepts this objective evidence and finds it corroborates the claimant’s allegation that his father was tortured until he died because of the claimant’s decision to follow the Jehovah’s Witness faith.

[22] The Panel finds that the claimant has established that there is an objective basis for his objective fear of serious harm, including death. And therefore, I find the claimant has a well-founded fear of persecution.

State Protection

[23] Now, the claimant also established through his credible testimony that police did not assist him when he went to them following an attack he suffered. He testified at that time that the police told him he was a Dalit; he should not be a Jehovah’s Witness.

[24] The claimant established with his credible testimony as well as documentary evidence found at Exhibit 6 that his father died as a result of what he endured in police custody. He testified that his father was arrested by the police, who told the family they expected that the family would produce the claimant. And the Panel accepts this documentary evidence and testimony and finds the police are among the agents of persecution since they have taken up the cause of trying to get hold of the claimant and punish him for his decision to become a Jehovah’s Witness.

[25] Therefore, I find in these circumstances, it would be unreasonable for the claimant to seek the protection of the police, which is one (1) of the agents of persecution. And I also find that given the objective evidence concerning the police all over India, the claimant would not receive better service from a police force of the central government or the police force of any other jurisdiction.

Internal Flight Alternative

[26] It is up to the claimant to establish that there is no viable internal flight alternative for him anywhere in India. And the Panel canvassed him about two (2) locations, New Delhi and also the region of Manipur out to the far east of the country, at the farthest point away from Punjab.

[27] However, the Panel finds that there is no viable internal flight alternative because the objective evidence establishes that wherever there are Hindus, there are Hindu extremists. And everywhere, therefore, there is a risk to the claimant because as a Jehovah’s Witness, and as he testified, he will continue to be a Jehovah’s Witness.

[28] The Panel finds the objective evidence establishes, and the Panel takes judicial notice that Jehovah’s Witnesses have a firm obligation to spread the word that they believe in to others. And the claimant has testified the same.

[29] The Panel finds given the climate of hostility everywhere toward Christians as non-Muslims, and toward Dalits, it is very unlikely that the claimant would be able to find a safe place anywhere in India where he could practise his religion openly and freely.

[30] The Panel, therefore, finds on a balance of probability that there is no viable internal flight alternative for the claimant. The test fails on the first prong, that of safety.

[31] In conclusion, based on the totality of the evidence, I find the claimant to be a Convention refugee, as he faces a serious possibility of persecution because of his religion and also because of his membership in a particular social group, Dalits. And therefore, his claim is accepted.

——— REASONS CONCLUDED ———

All Countries India

2022 RLLR 54

Citation: 2022 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: July 6, 2022
Panel: Josée Bouchard
Counsel for the Claimant(s): Jean Cantin
Country: India
RPD Number: TC2-06248
Associated RPD Number(s): TB8-27361, TC2-06249
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: This is the decision for the following claimants, the principal claimant, XXXX XXXX XXXX the file number is TC2-06248, her spouse the associate claimant, XXXX XXXX, the file number is TB8-27361, and their son the minor claimant, XXXX XXXX, file number is TC2-06249. In writing this decision I have considered and applied the Chairperson’s Guideline for Women Refugee Claimants fearing Gender-Related Persecution. I have considered the claimants’ testimonies and the other evidence in the case and I am ready to render my decision orally.

[2] The claimants’ allegations are fully set out in their Basis of Claim forms filed as Exhibits 2.1 to 2.3, and the addendum to the narrative filed as Exhibit 7.1. To summarize, the principal and associate claimants allege persecution at the hands of the authorities and drug dealers because of their real or imputed political opinion, namely as anti-drug activists who are critical of the government’s position as it relates to drug dealing. The minor claimant alleges persecution at the hands of the authorities and drug traffickers or drug dealers, because of his membership in a particular social group, namely his familial relationship with the principal and associate claimants. The claimants allege that there is no state protection for them, or an internal flight alternative. I find that the claimants are convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. The associate and principal claimants have demonstrated a serious possibility of persecution in India by virtue of their real or perceived political opinion, as anti-drug activists who are critical of the government’s position as it relates to drug dealing.

[3] The minor claimant has demonstrated a serious possibility of persecution in India by virtue of his membership in a particular social group, namely his familial relationship to the principal and associate claimants. I find that the claimants’ personal and national identities as citizens of India have been established on a balance of probabilities, by the claimants’ testimonies, and their supporting documents; namely their passports issued by the Government of India and filed as part of Exhibit 1.

[4] I find that there is a link between what the claimants fear and the grounds enumerated in Section 96 of the Immigration and Refugee Protection Act, namely imputed or real political opinion and membership in a particular social group. Therefore, I have assessed the claimants’ claims under Section 96 of the Immigration and Refugee Protection Act. The test under Section 96 is whether there is a serious possibility of persecution should the claimants return to India, and I have found that the claimants have met that test.

[5] In terms of the claimants’ credibility I generally found the principal and associate claimants to be credible witnesses, and I therefore believe what they have alleged in their oral testimonies and Basis of Claim forms and addendum to the Basis of Claim forms. The principal and associate claimants’ evidence as it pertained to the core elements of the claims was consistent, both internally and with the documentation. The principal and associate claimants were responsive and forthright, they were able to elaborate on their narrative and gave explanations to the questions. The claimants filed documentary evidence to support their claims, which were filed as Exhibits 7.1 to 7.3 and 8. There is no reason to cast any doubt on the veracity of the documentary evidence and as such I place great weight on the evidence to support their claims. Based on the claimants’ testimonies and documentary evidence the claimants have established on a balance of probabilities the following.

[6] The claimants are of the Sikh faith. The principal and associate claimants became concerned about the number of kids from their village taking drugs. As a result, in or around 2015 the associate claimant and a circle of friends and relatives, including his cousin, XXXX, began XXXX XXXX, XXXX XXXX, and XXXX XXXX to motivate the younger generation so they would not be inclined to use drugs. The drug dealers soon started threatening the associate claimant and his group to stop doing such activities. This claim is supported by the principal and associate claimants’ credible testimonies and narrative, photos of some of the sports activities, and affidavits from the associate claimant’s mother, a neighbour, and a former municipal councillor of the village. These are entered as Exhibits 7.1 and 7.3.

[7] In XXXX of 2017, the associate claimant and his cousin, XXXX, were going to a relative’s house in Kartarpur, on bike. About six (6) or seven (7) unknown individuals believed to be drug dealers attacked. The associate claimant and his cousin were rescued by local villagers who rushed them to the hospital. The associate claimant tried to file a complaint with the police but because of lack of evidence the police did not pursue the matter further. A few months later the associate claimant’s cousin succumbed to his injuries. The associate claimant explains that he could not get the death certificate for his cousin as XXXX’s father has passed away and his brother lives in the United States. Instead, the associate claimant was able to file a photo of XXXX on the day of his cremation. I find this explanation reasonable in the circumstances. The claim is supported by the principal and associate claimants’ credible testimonies and narrative, the medical report attesting to the associate claimant’s injuries and treatment, affidavits from the associate claimant’s mother, neighbour, and former municipal councillor, and a photo of XXXX on the day of his cremation. These are filed as Exhibits 7.1 and 7.2. The drug dealers hired a man to kill or attack the associate claimant. The associate claimant filed a complaint to XXXX XXXX XXXX of police in Jalandhar City in XXXX 2017. Police arrested someone in connection to the complaint, but he was soon released.

[8] The associate claimant testified that the drug lords have close ties to the authorities and as such have power over the police. In XXXX 2018 the associate claimant went into hiding in Mumbai, first with a friend who came from his village. With intimidation of the friend’s family in their hometown, the police discovered the whereabouts of the associate claimant. After about five (5) days the associate claimant left his friend’s house in fear of being attacked, and hid in various Sikh temples. The associate claimant fled India with the assistance of an agent in XXXX of 2018. This claim is supported by the principal and associate claimants’ credible testimonies and narrative, chat messages between the person who hired the man to kill the associate claimant and a friend of his cousin’s, and affidavits from the associate claimant’s mother and a former municipal councillor. These are all filed as Exhibits 7.1 and 8.

[9] In XXXX 2019 the police attended twice at the principal and associate claimants’ residence, looking for the associate claimant. The principal claimant was mistreated by police. In XXXX 2019 the police raided the claimants’ residence and took the principal claimant and her son, the minor claimant, into detention. They were both mistreated by the authorities. Once released, the principal claimant sought medical attention. The principal and minor claimant fled India shortly thereafter. The principal claimant did not have time to get a visa for her younger child, her daughter. The daughter remains in India and is being taken care of by relatives. The claim is supported by the associate and principal claimants’ credible testimonies and narrative, the medical report attesting to the principal claimant’s injuries and treatment, and affidavits from the associate claimant’s mother, a neighbour, and a former municipal councillor, all filed as Exhibit 7.1.

[10] In Canada, the associate claimant continues to transfer money to assist children in his village in India. The associate claimant filed an affidavit from his mother stating that the police are still looking for them and the latest they came to look for him was in XXXX of 2022. This claim is supported by the associate and principal claimants’ credible testimonies and narrative, the associate claimant’s mother’s affidavit, and proof of money transfer to the recipient from the claimant’s village. These are filed as Exhibits 7.1 and 7.2.

[11] I find that the claimants’ subjective fear is established by the claimants’ credible testimonies and overall evidence, and I believe that the claimants have alleged on the balance of probabilities. I turn now to the objective basis.

[12] The National Documentation Package for India dated June 30th, 2022 at Exhibit 3, supports the claimants’ evidence about their subjective fear of arrest, detention, and mistreatment by the police and drug dealers because of the claimants’ alleged anti-drug activism against the government’s position about drug dealing. The National Documentation Package for India confirms that political and human rights activists or those perceived to be such as the claimants, are often harassed and arrested for their political opinion. The United States Department of State Report on Human Rights for 2021 at Exhibit 3, item 2.1 notes that, “Individuals routinely criticized the government publicly and privately via online platforms; television, radio, or in print media. The government increasingly harassed, arrested, and prosecuted rights defenders, activists, journalists, students, academics, and others critical of the government or its policies”.

[13] The World Report 2022 on India, at Exhibit 3, item 2.3 also notes that, “Critics of the BJP party, including activists, journalists, peaceful protestors, and even poets, actors, and businesses increasingly risked politically motivated harassment, prosecutions, and tax raises. Authorities shut down rights groups using foreign funding regulations or allegations of financial irregularities”. The National Documentation Package for India also discusses prevalence of drug dealing in India. The United States Overseas Security Advisory Council at Exhibit 3, item 7.1 notes that, “India is the leading generic drug manufacturer in the world. Drug traffickers exploit their commercial infrastructure to market dangerous synthetic drugs in the United States or elsewhere”.

[14] “Indian law enforcement officials have made arrests for trafficking heroin near the Nepal border, with a believed terrorism nexus. Illegal drugs are commonly used and are widely available. Foreign criminal elements have distributed methamphetamine widely in New Delhi and increasingly elsewhere throughout India”. The Asian Centre for Human Rights at Exhibit 3, item 10.8 notes that, “We are not oblivious to the fact that police in India has to perform a difficult and delicate task, particularly when there are many hardcore criminals like extremist terrorist drug pedallers, smugglers, who have organized gangs that have taken strong roots in the society. Such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following the rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in the police force. In a society governed by the rule of law it is imperative that extrajudicial killings are properly and independently investigated so that justice may be done”.

[15] I find that the claimants’ subjective fear of being arrested, detained, and abused should they return to India is supported by the objective country condition evidence. When making a refugee claim a claimant must establish on a balance of probabilities that adequate state protection is not available. There is a presumption that state protection is available and the onus is on the claimant to provide clear and convincing evidence to rebut such presumption. I accept that the associate claimant complained to the authorities at least twice about the threats from the drug dealers. I also accept that in the first instance the police refused to investigate for lack of evidence and in the second instance the man hired to attack or kill the associate claimant, was arrested but released the same day and there was no further outcome.

[16] The objective country condition reports note, more specifically the United Kingdom Home Office Report at Exhibit 3, item 10.10, that, “Citizens often face substantial obstacles including demands for bribes, in getting the police to file a First Information Report, which is necessary to trigger an investigation for an alleged crime. Corruption within the police force remains a problem”. The same report adds that, “Police services are undermined by inadequate training and equipment, limited resources, political influence, and corruption. Police investigations are seriously hampered by some police officers refusing to register victims’ complaints, poor quality of investigations, insufficient training and legal knowledge, inadequate and outdated forensic and cyber infrastructure, and a lack of public trust. There are legal remedies for severe police misconduct and corruption, although some victims may be reluctant to report police violations due to fear of retribution”.

[17] Considering the inadequacy of police services in India, I find that protection would not be reasonably forthcoming in the case of the claimants and there is no adequate state protection available in India for them. I turn now to whether or not there’s an internal flight alternative for the claimants. I raised the issue of an internal flight alternative at the beginning of the hearing and identified Jaipur or New Delhi as the possible internal flight alternative cities. I also canvassed the issue during the hearing. The onus is on the claimants to produce sufficient credible evidence to establish that they face a serious possibility of persecution or a personal risk of torture, or risk to their life, or a risk of cruel and unusual treatment or punishment in the proposed internal flight alternatives. The claimants must establish that the agents of persecution have the means and motivation to harm them in the internal flight alternative. The panel finds that the claimants have met this burden of proof. The panel accepts that although the police have not issued a warrant for the claimants’ arrest or a First Information Report against them, the police are still looking for the claimants; in particular the associate claimant. The panel accept that the associate claimant fled his own town in Jalandhar to live in hiding in Mumbai, a city that is more than 1,500 kilometres away.

[18] The panel accepts that the police, through intimidation of relatives of the person the associate claimant stayed with, soon discovered his location in Mumbai. The panel accepts that the associate claimant had to continue living in hiding by staying in Sikh temples instead of renting a place where he would have to divulge his identity. The panel also accept that as of XXXX 2022, the police were still looking for the claimants. The panel accept that if the claimants were to return to India to live either in Jaipur or New Delhi, they would have to live in hiding. The Federal Court in Murillo Taborda v. Canada 2013 FC 954 [sic] has held that, “An internal flight alternative is not viable if the claimant must live in hiding in the internal flight alternative for fear of being discovered by the agent of persecution”. The panel finds that the claimants would be forced to live in hiding should they return to India to live either in New Delhi or Jaipur.

[19] The Federal Court in Abbas against Canada 2019 FC 1576 has also noted that, “The size of the internal flight alternative may be misleading where there are family networks and connections that would facilitate an easier access of locating the claimants”, such as is the case in the claimants’ circumstances. The claimants filed affidavits from the associate claimant’s mother, a neighbour, and a former municipal councillor who could be pressured to provide the claimants’ whereabouts should they return to India. The panel also notes that the associate claimant’s location in Mumbai was discovered by intimidation of the family of the friend with whom the associate claimant stayed.

[20] The Federal Court in Emuze v. Canada 2021 FC 894 also recognizes that the Refugee Protection Division must consider the fact that an agent of persecution found the claimant in another city. I accept that when the associate claimant moved to Mumbai his location was discovered.

[21] The principal claimant testified that the claimants could not relocate to another part of India because they would have to register their identity to obtain lodging, employment, or access other services, which would lead the police to contact the local authorities who are still looking for the claimants. I note that there are several means for the police to locate the claimants anywhere in India. The objective country condition reports, more specifically, Human Rights Watch at Exhibit 3, item 3.22, discusses the government’s mandatory biometric identification project, Aadhar. “It is a large-scale collection of personal and biometric data which is linked to a range of services”. In other words, a person requires the Aadhar card to access several government services. Human Rights Watch notes that it raises, “Serious concerns about violations of the right to privacy. There are legitimate concerns about privacy, surveillance, or just misuse of personal information and the government should address these problems instead of coercing people to enrol and link existing services to Aadhar”. The Immigration and Refugee Board of Canada’s Response to Information Request dated May 14th, 2019 and available at Exhibit 3, item 14.8, describes the tenant registration and verification process in India. It notes that, “Such process aims at detecting criminal background and maintaining a database of people living in a particular area”. It adds that, “Through police verification the history of any tenant can be verified whether the person had any criminal involvement or absconding from other states’ police”. It also notes that, “Tenant registration or verification with local authorities is mandatory. Officers in different states can communicate with each other if they wish to locate someone”.

[22] In addition, a May 26th, 2021 Immigration and Refugee Board of Canada report at Exhibit 3, item 10.13, discusses police databases and criminal tracking. It describes the Crime and Criminal Tracking Network and Systems, or CCTNS, “Launched in 2009 as a system with the aim of establishing seamless connectivity among 15,000 police stations across the country, CCTNS entails digitization of data related to First Information Reports, registered cases investigated, and charge sheets filed in all police stations, to develop a national database of crime and criminals”.

[23] It adds that, “Since 2015 the scope of the CCTNS project was extended beyond establishing a national database of crime or criminal records, to the establishment of an interoperable criminal justice system by integrating data from prisons, courts, prosecution, forensics, police, and fingerprints”. The same report confirms that, “The National Crime Record Bureau is implementing the CCTNS; as of October 31st, 2020 connectivity was available at 15,620 police stations out of 16,098 police stations, so more than 95 percent in India. Since the launch of the digital portal in 2017, CCTNS enables not only searches for criminals but also suspects. The CCTNS records data not only from First Information Reports but also from the daily recording of events taking place at the police station”.

[24] Two (2) recent Refugee Appeal Division decisions have found a serious possibility of persecution throughout India, when police are motivated to search for a claimant via various database. In one case, X (Re) 2019 CanLII 133689 at paragraph 20, the Refugee Appeal Division noted that overall the research information in the most recent NDP or National Documentation Package, “Suggests that tenant verification requirements in India could lead to the police in one of the proposed internal flight alternative cities communicating and cross-checking information with the Punjabi police and that this process appears to be supported by a digital portal”. In a second decision in X (Re) 2019 CanLII 133689 at paragraph 20 [sic], the Refugee Appeal Division noted again, “Taking into account the context of refugee determination and on the basis of the current state of the National Documentation Package information, I am prepared to find that there is a reasonable chance that police from Indian states sometimes include in the police national database persons they have interest in who have as yet no criminal record or formal accusations, and that this would as a result come to the attention of the Mumbai or Delhi police through a tenant verification check of the CCTNS”.

[25] In addition, the evidence supports the proposition that the Punjab police is motivated to pursue the claimants anywhere in India. The evidence establishes that the police enquired about the claimant’s whereabouts with the principal claimant as early as XXXX 2022. I find that the authorities in India still have the motivation to locate the claimants. In conclusion, the police still have the motivation to locate the claimants and there are several possible ways in which the police could come to know of the claimants’ location in any of the internal flight alternative cities; either through the tenant registration and verification process, the mandatory biometrics project, the CCTNS system, or simply through contacts with family and acquaintances. Accordingly, I find that there is no internal flight alternative for the claimants in their particular circumstances.

[26] And now, Madam Interpreter, will be the conclusion. For the decision, based on the totality of the evidence and for the reasons outlined above, I find that the claimants are convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. The principal and associate claimants face a serious possibility of persecution in India because of their imputed or real political opinion as anti-drug activists against the government’s position on drug dealing. The minor claimant faces a serious possibility of persecution in India because of his membership in a particular social group, namely his familial relationship with the associate and principal claimants. I accept their claims.

——— REASONS CONCLUDED ———

All Countries Cuba

2022 RLLR 53

Citation: 2022 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: September 15, 2022
Panel: Priya Kissoon
Counsel for the Claimant(s): Yuliya Dumansk
Country: Cuba
RPD Number: TC2-07115
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: So this is the decision in the claim for refugee protection made by XXXX XXXX XXXX, file number TC2-07115. You are claiming to be a citizen of Cuba and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find you are a Convention refugee within the meaning of section 96 of the IRPA for the following reasons.

[2] In terms of the allegations, the full allegations are set out in your Basis of Claim form. In summary, you fear persecution at the hands of the Cuban authorities on account of your political opinion and political activities against the Cuban government.

[3] You have established your identity on a balance of probabilities as a citizen of Cuba with the certified true copy of your Cuban passport.

[4] You have a nexus to the Convention because of your political opinion. You believe that a political opinion was imputed to you owing to your travels to Canada and that you also expressed a political opinion outright by sharing photos from your trip to Canada at the XXXX you were assigned which contrasts with conditions in Cuba and resulted in verbal reprimand and demotion specifically

[5] 5. [HK1] While holding a position of power and authority in your role as XXXX XXXX, the expression of your views on the differences between Canada and Cuba were perceived to be a threat by the authorities. You also participated in protests and have observed differences in the handling of these in Cuba and in Canada. And given this your claim was analyzed under section 96 of the IRPA.

[6] You testified in a straightforward way without any inconsistencies or omissions. And overall, I found you to be credible and I accept your allegations. You offered detailed testimony about your work history, particularly following your first trip to Canada. Your testimony about your employment was consistent with the information you provided in Exhibit 1 and your BOC, that is your Basis of Claim, in Exhibit 2. You corroborated your work history with copies of your XXXX XXXX and a letter from the office of XXXX XXXX found at Exhibit 5, pages 8 and 11. I find you have established on a balance of probabilities that you held position of status and authority as a XXXX XXXX and then as a XXXX XXXX (inaudible) in a XXXX and as a XXXX. While in these positions, you made a few trips to Canada. Following your first trip you were demoted and transferred from XXXX to the XXXX XXXX XXXX. Starting your position as XXXX XXXX XXXX, after returning from your first trip abroad, you testified that you shared photos with colleagues and XXXX and your observations about differences in the conditions of life in Canada and in Cuba. You testified that the XXXX authorities perceived these to be counter revolutionary and you were reprimanded twice, once in private by the XXXX and once by the XXXX and the committee. You testified that you continued to show photos and express your thoughts to those who were interested. You also continued to travel to Canada. You were eventually terminated from your position as XXXX XXXX on XXXX 2019 and you testified that you were unable to find another placement after this termination despite your years and experience in XXXX.

[7] You made another trip to Canada following this termination and stayed with your daughter, who lives in Canada, for about XXXX (XXXX) months. On return to Cuba, you were in COVID lockdown for most of 2020 and 2021. However, in XXXX 2021 you and your son participated in the national protests in Cuba and owing to this participation you faced a number of summonses and you felt like you were being monitored. Your last summons resulted in a warning that if you protested again, you would be arrested. Your BOC indicates that that last summons was in XXXX 2021. Following this warning, you fled to Canada where you demonstrated a commitment to your political opinion by protesting with your daughter against oppression in Cuba. You disclosed a photo to corroborate your participation in that protest which took place in XXXX XXXX, 2021. You testified about your observations of the different treatment of protesters in Canada compared to Cuba and it was clear from your testimony that you are impassioned about your opposition the Cuban government and its treatment of citizens. On a balance of probabilities, I find that you have established your political opinion, imputed and otherwise. Given the relationship between your travel and demotion and termination as well as your testimony about being questioned by authorities following on your participation in the XXXX XXXX protests, I also find that you have established on a balance of probabilities that you faced harm owing to your political opinion. Therefore, I find you have established on a balance of probabilities a subjective fear of persecution in Cuba.

[8] I am satisfied that your opposition to the Cuban government is a genuine and legitimate expression of your political opinion. And I also found that you have an objective basis for your subjective fear of persecution given the evidence from the Cuban National Documentation Package or NDP. The objective evidence shows that similar protesters in Cuba have faced repression by the government. According to Item 2.1 of the NDP, the Cuban regime is noted as having significant human rights abuses including abuse of political dissidence, detainees and prisoners by security forces, arbitrary arrest and detentions, significant problems with independence of the judiciary and arbitrary or unlawful interference with privacy. Cuba is an authoritarian state with only one (1) legal political party and Cuban security forces have committed numerous abuses against civilians. The NDP indicates that XXXX is a high-status occupation in Cuba and XXXX are highly qualified. Item 2.3 indicates that material on human rights was confiscated as counter revolutionary by authorities. The Cuban government has denied access to XXXX to XXXX who held political and religious views that differ from the state and Item 2.11 indicates that, “XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Given the status of your position and that you spoke out, I believe that you have established an objective basis to your fear of persecution should you return to Cuba. But moreover, specifically referring to your participation in protests, the government regularly engages in censorship and imposes restrictions on the right of peaceful assembly. Government authorities perpetrate forced disappearances, political dissidents are regularly imprisoned and face degrading and life-threatening treatment in prison. And according to Item 2.1 the arbitrary arrests are common. Items 2.12 and 2.14 state that Cuban authorities recently detained hundreds of protesters who attended demonstrations on July the 11th, 2021. And In a Human Rights report cited in Item 2.12, President Miguel Diaz-Canel, on Sunday, July the 11th, 2021, “Urged government supporters and security forces to respond to protests violently saying we call on all revolutionaries to go to the streets to defend the revolution.” “He said, the order to fight has been given.” Articles you disclosed indicate that hundreds of people were detained during protest including ordinary citizens, where onlookers received months in prison and other sentences of more than a decade for public disorders, sedition and other charges were placed. Item 2.1 also indicates that Cuban government has increased arbitrary arrest powers under the pretext of COVID-19 pandemic. So on a balance of probabilities you have been identified as being an opposition to the government through your political expression and should you return to Cuba you would face detention or arrest like others who are similarly situated. Having considered the objective evidence together with your consistent and credible testimony, I find that your subjective fear of persecution is well-founded. As such, I find you would face a serious possibility of persecution should you return to Cuba.

[9] Regarding state protection and an internal flight alternative, you fear the Cuban state and you have testified that you cannot move anywhere in Cuba because state authorities can find you anywhere in the country. I agree with this and based on the documentary evidence, I find on a balance of probabilities that you would not be able to avail yourself of the protection of the authorities in Cuba and adequate state protection is not available to you. I am satisfied that you have rebutted the presumption of state protection. And given that the current actions taken by the state against political oppositions nationwide, there is no internal flight alternative throughout Cuba available to you. It is established in law that there is no internal flight alternative or state protection when you credibly fear state authorities.

[10] In conclusion, based on the totality of the evidence I find that pursuant to section 96 of the IRPA you have established a serious possibility of persecution on a Convention ground, namely, your political opinion. Therefore, your claim for protection is accepted.

[11] Mister Interpreter?

[12] CLAIMANT: Thanks to my lawyer for carrying out this process as well. To you, Madam Member, I wish you well. Thank you, interpreter.

[13] INTERPRETER: Thank you very much.

[14] MEMBER: Congratulations to you and welcome to Canada.

[15] CLAIMANT: God bless you, Madam Member.

[16] MEMBER: Okay. Just take care. Thank you, Mister Interpreter. Thank you, Counsel. Take care. Take care.

[17] COUNSEL: Thank you, Madam Member. What graceful questioning it was.

[18] MEMBER: Thank you.

[19] COUNSEL: What graceful questioning it was.

[20] MEMBER: Thank you. Take care.

[21] COUNSEL: Thank you. Bye-bye.

[22] MEMBER: Bye.

[23] COUNSEL: Thank you, Mister Interpreter.

[24] MEMBER: Thank you.

[25] INTERPRETER: Thank you.

[26] MEMBER: Bye.

——— REASONS CONCLUDED ———

[HK1]Note that this seems to be a formatting error in the original text

All Countries Nigeria

2022 RLLR 52

Citation: 2022 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: October 18, 2022
Panel: Teresa Maziarz
Counsel for the Claimant(s): Samalie Kidde Nsubuga
Country: Nigeria
RPD Number: TC2-08511
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: We are recording again for file number TC2-08511 on October 18th, 2022, at 10:48 in the morning.

[2] The Panel has indicated that it is ready to proceed to a decision on this claim, and the decision is as follows.

[3] The claimant, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a citizen of Nigeria, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. The claimant is found by the Panel to be a Convention refugee pursuant to section 96 of this Act. Therefore, an analysis respecting section 97(1) is not provided.

[4] In making this determination and throughout the proceedings, the Panel considered and applied the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, revised on December 17, 2021.

[5] The basis of the claim relates to, according to the written and oral testimonies, the claimant’s sexual orientation. The claimant identifies as a gay man, which for him means that he is sexually, physically, and emotionally attracted to men, not to women. Based on his sexual orientation, the claimant fears persecution in Nigeria from the community at large as well as authorities in Nigeria, who would not be there to assist him and provide him with protection.

[6] The Panel turns to the various elements of the definition of a Convention refugee to discuss how they are met.

[7] There is firstly the element of the claimant’s identity. Though not directly referenced in section 96, it is the core element of finding the claimant to be a Convention refugee. As noted, the claimant is XXXX XXXX XXXX XXXX he is an 18-year-old male born on XXXX XXXX, 2004, in Nigeria. The claimant’s personal identity is established on a balance of probabilities by his testimony and the supporting documents submitted into evidence, as well as testimony from his brother, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. And in regard to the documentary evidence, the Panel refers to a copy of his passport as found in Exhibits 1 and 4.

[8] The claimant also testified that he is a citizen only of Nigeria and does not have permanent residence in any other country.

[9] The definition of a Convention refugee requires that a forward-looking threshold of risk be met, and that risk threshold is met. The Panel finds that the claimant, were he to return to Nigeria, faces a reasonable chance of persecution based on his sexual orientation. The Panel makes that finding because the claimant has credibly established the basis of his claim on a balance of probabilities. The Panel finds on a balance of probabilities that the claimant’s account that he is a gay man is credible and trustworthy. As noted, the claimant is a young man, 18 years old. The Panel finds from the quality of his written and oral testimonies that this quality reflects, on a balance of probabilities, genuine information concerning his sexual orientation and his path to realizing that he is gay. The Panel accepts on a balance of probabilities the credibility of the account of his experiences in Nigeria as a gay man, and the Panel also observed how fluid the claimant’s oral testimony was. In answer to questions posed by the Panel, the claimant would, for example, volunteer other aspects of his account that relate directly to the questions posed and which are documented in the written account, namely the narrative account that is found in the basis of the claim. For example, the claimant volunteered testimony about the identity of the — one (1) of the aggressors in Nigeria and the aggressor’s friends, all of whom are noted in the narrative account.

[10] The claimant’s testimony about his relationships in Nigeria were also consistent with his written account, that being that he was in only one (1) relationship in or about 2019 that lasted for XXXX (XXXX) months with a man whose name he fully gave, who I will refer to as XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and I note that that name is also given in the narrative account. And the claimant readily identified other persons who are named in his account and who provided supporting letters, as found in Exhibits 5 and 6, identifying them as only his friends, but who are also gay, as supported in information provided by the authors of those letters. Those are just some examples of the evidence that the claimant volunteered orally today, without hesitation, without memorization, that confirms what is in his narrative account.

[11] The claimant’s account of his sexual orientation is, as noted, also supported by his personal disclosures found in Exhibit 5 and 6. Such disclosures include letters of support, not only from persons named in his account who continue to reside in Nigeria, but also from his two (2) brothers in Canada who are XXXX and also XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[12] The Panel did not discern any material credibility concerns regarding the trustworthiness of such disclosures that would the rebut the presumption of truth of the claimant’s account of his sexual orientation. The Panel considered, for example, that some disclosures are titled as affidavits whereas they clearly are not affidavits, however, what is determinative is the content of such disclosure. Among such disclosure is the report of the social worker in Exhibit 5, which also attests to the claimant’s sexual orientation, and a medical report from Nigeria, which attests to one (1) of the incidences that was described in the narrative account and again, with which the Panel finds no cause for concern in terms of its trustworthiness.

[13] The claimant’s brother XXXX, who was formerly his designated representative before the Board, also testified on the claimant’s behalf today, and his account was consistent with the claimant’s oral testimony and his written testimony, as found in the Basis of Claim form. As also noted, the claimant’s brother XXXX provided a letter of support, and he would likely corroborate the claimant’s account, were he also called to testify, given the content of his letter of support.

[14] There is also no contradictory information about the claimant in his application for a study permit, as found in Exhibit 4, when considered with the information in his Basis of Claim form and in the schedules that are found in Exhibit 1.

[15] The claimant’s account in his Basis of Claim form as to his path of realizing his sexual orientation is therefore also corroborated by the information that is consistent in regard to his educational history, as this is where his path was realized.

[16] Given the credibility of the claimant’s Basis of Claim, there is a link established with a Convention ground, specifically his membership in a particular social group as a gay man.

[17] The meeting of the threshold of a serious possibility or reasonable chance of persecution is also grounded in the objective documentary evidence in addition to the claimant’s personal experiences in Nigeria. Those personal experiences include his having been bullied, harassed, threatened, and beaten by other students at school and by members of the community who perceived him to be gay.

[18] With regards to the objective documentary evidence, the Panel refers to the June 30, 2022, version of a National Documentation Package for Nigeria, which is Exhibit 3. Because the claimant’s Basis of Claim is credible, he has established a credible link to the information in the NDP about the treatment of SOGIESC, S-O-G-I-E-S-C, individuals. In this regard, the Panel refers briefly to the following information. Same-sex relationships and acts are criminalized in Nigeria pursuant to the Nigerian Federal Criminal Code such that anyone having physical relationships with members of the same sex is considered to be acting against the order of the — of nature and to be committing an unnatural offence and is subject to a 14-year prison term. There is also the Same-Sex Marriage (Prohibition) Act, which criminalizes same-sex marriages and civil unions as well as gay clubs and gay organizations, meetings of gay people, and the support of LGBTQ organizations. And in this regard, the Panel refers to Item 1.4 of the NDP, which also notes that, as an example, anyone who supports or participates in a pro-LGBTQ organization is liable to a 10-year prison term. Item 6.12, as another example, references that gay people have been noted by objective observers to be at a serious risk of persecution by the state, which criminalizes same-sex relationships. They are also at risk of persecution by society in general, which is known to be not supportive of same-sex relationships and often considers them alien to traditional African culture. Item 6.7 continues with this theme that the perception of the community at large regarding SOGIESC individuals is founded upon assumptions and opinions that same-sex relationships are unnatural, sinful, and an abomination. Item 6.1 references that SOGIESC individuals are victims of community-sponsored violence.

[19] According to 6.12, SOGIESC individuals conceal their sexuality and face significant pressure to marry individuals of the opposite sex. Item 6.11 references that it is not possible to live openly as a sexual minority in any area of Nigeria, not even in the big urban areas such as Lagos, Port Harcours (sic) — sorry, Port Harcourt, or Abuja. So, all of such evidence, including the claimant’s own personal credible account, shows that the claimant would face a reasonable chance of persecution in Nigeria for a Convention ground, were he to return to that country.

[20] All such evidence also shows that adequate state protection would not likely be forthcoming to the claimant given that one (1) of the agents of persecution is also the state, in regard to its laws and in regard to its approach to providing protection. In this regard, in addition to the evidence already cited, Item 6.11 indicates that there is little state protection from community violence, that the roles of discriminatory laws are evident in the forms of violence perpetrated by both state and non-state actors, and that impunity is one (1) of the driving forces for the continual violation of LGBTQ people’s rights in Nigeria.

[21] Given the evidence that supports the finding of the likelihood that the claimant would not receive adequate state protection in Nigeria and given that the state, through also its security forces, is an agent of persecution in his claim, there is also no viable internal flight alternative for the claimant in Nigeria. The viability of an IFA fails on the first prong of the IFA test established by the Federal Court of Appeal, as the claimant faces a reasonable chance of persecution in every part of Nigeria due to his sexual orientation.

[22] The Panel also returns to the issue of credibility and wishes to add that another document that comes to mind that was disclosed by the claimant are documents from XXXX XXXX, which show that he is associated with this organization. The Panel will also address the claimant’s testimony in answer to the Panel’s questions that he is not currently in a relationship in Canada since his arrival here. The Panel finds that this does not undermine the credibility of the claimant’s account, The Panel references the claimant’s tender age, despite that he is an adult, and his explanation, which is reasonable on a balance of probabilities that he simply has not yet met someone with whom he could consider a relationship. The claimant also emphasized that he has never been in a relationship with a woman, not here in Canada and not in Nigeria, and that he continues to identify as a gay man. And, as noted, the Panel has already discussed what the claimant has said as to what that personally means to him.

[23] So, in conclusion, the Panel finds that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, and that the claim is allowed.

——— REASONS CONCLUDED ———