Category: All Countries

2020 RLLR 84

Citation: 2020 RLLR 84
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: Jacqueline Gallant
Counsel for the Claimant(s): Birjinder P S Mangat
Country: Pakistan
RPD Number: VB9-03745
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000157-000163

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision of the claim of [XXX], who claims to be a citizen of Pakistan, and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).^[1]

DETERMINATION

[2] The panel finds that the claimant is a Convention refugee as he has established a serious possibility of persecution on account of his political opinion for the following reasons.

ALLEGATIONS

[3] The claimant fears the authorities in Pakistan as well as non-state pro-Pakistan groups due to his involvement in the United Kashmir People’s National Party (UKPNP).

ANALYSIS

Identity

[4] The panel finds that the claimant’s identity as a national of Pakistan is established by his testimony and the documentary evidence filed including his Pakistani passport.

Nexus

[5] The panel finds there is a nexus between the claimant’s allegations and one of the five Refugee Convention grounds, namely political opinion, and has therefore assessed his claim under both s. 96 & 97(1) of the Immigration and Refugee Protection Act.

Well-founded fear of persecution

[6] In order to be considered a Convention Refugee the claimant must demonstrate that the claimant has a well-founded fear of persecution which includes both a subjective fear and an objective basis for that fear. Based on the claimant’s testimony, supporting documents and the country condition documents the panel finds that he has a well-founded fear of persecution for the following reasons.

[7] The panel finds the claimant to be a credible witness therefore believes what he has alleged. The claimant testified in straightforward and forthcoming manner and there were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before the panel. The claimant was able to spontaneously provided a detailed history of his involvement in the UKPMP both in his country and since coming to Canada. He was also able to provide detailed reasons as to why his involvement in this party is important to him and his values.

[8] The panel finds that the claimant has established the following on a balance of probabilities:

The claimant became involved in, PKNSF a student group that promoted Kashmiri independence in college and he received threats and beatings from pro-Pakistan groups because of this involvement;
The claimant became an active member in the UKPNP in 2009 and he spoke to audiences and led protests in support of Kashmiri independence in Pakistan;
During protests in 2009, 2013 and 2014 the claimant and others in his group were attacked with iron rods, sticks and stones by the police and workers of pro-Pakistan groups. The claimant was beaten on a number of occasions and on one occasion, the claimant was arrested and was held in solitary confinement, tortured, and threatened with death if he did not stop his political activities against Pakistan;
The claimant reported the attacks on him to the security forces in Pakistan but was told that they would not help him;
The claimant left Pakistan on [XXX] 2014 and spent a year working in Brazil. After being unable to extend his work visa in Brazil the claimant went to the US where he was detained and requested refugee protection with a hearing date set in [XXX] of 2021;
On [XXX] 2019 the claimant came to Canada and made a claim for refugee protection;
The claimant has remained an active member of the UKPNP since coming to Canada;
If the claimant were to return to his country he would continue with his active involvement in political activities for the UKPNP party promoting Kashmiri independence in Pakistan;
Individuals who promote Kashmiri independence in Pakistan are subject to illegal detention and punishment for their political opinion.

[9] The claimant provided documentary evidence such as letters of support from members of the UKPNP, documentation confirming his membership in the UKPNP, and photos of him in attendance at various conferences, meetings and other events for the UKPNP both in Pakistan and in Canada. The claimant also provided various country condition evidence pertaining to the treatment of individuals who are similarly situated to the claimant to support his allegations. The panel finds that these documents are relevant and serve to corroborate his allegations and therefore places significant weight on them.

[10] The panel finds that the claimant has established that he has a subjective fear of persecution by Pakistani authorities and other pro-Pakistan groups.

[11] The country condition evidence, as outlined in the National Documentation Package at item 4.8^[2] supports the claimant’s allegations as follows:

In Jammu and Kashmir, Pakistan has been engaged in ongoing conflict with India and separatist insurgency groups since partition in 1947.

Pakistan generally forbids individuals or political parties from taking part in activities that are prejudicial to the government of Pakistan and this is particularly the case in Kashmir.

Anti-government demonstrations are routinely oppressed, often violently and Pakistani security forces generally view pro-independence groups with suspicion. The Pakistan Intelligence Agency engages in extensive surveillance of pro-independence groups and those who do not support the Pakistani government. These people are subject to surveillance, harassment, imprisonment and torture by security forces.

Pro-independence activists, including members of the UKPNP are often detained without being given a reason for their arrest. They are punished, interrogated and frequently tortured in detention.

[12] Therefore, based on the totality of evidence the panel finds that the claimant has established that he would face a serious possibility of persecution in Pakistan because of his membership in the UKPNP and his political activism which he continues today.

State protection and Internal Flight Alternative (IFA)

[13] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting its citizens. However, since the agent of persecution in this case is the state, the panel finds that state protection would not be reasonably forthcoming and that the claimant has rebutted the presumption of state protection.

[14] In this case, given that the state is the agent of harm, is in control of all of its territories and has demonstrated the capacity and motivation to harm the claimant in the past, the panel finds that the claimant would face a serious possibility of persecution throughout Pakistan. The panel therefore finds that there is no internal flight alternative available to the claimant.

CONCLUSION

[15] The panel finds that the claimant is a Convention refugee as he has established a serious possibility of persecution on account of his political opinion. The panel therefore accepts his claim.

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

^[2] Exhibit 3, National Documentation Package, Pakistan, 29 March 2019, tab 4.8: Treatment by state and non-state agents of individuals and political factions that support or advocate for Kashmiri independence. Immigration and Refugee Board of Canada. 30 November 2012. PAK103863.E.

All Countries Nicaragua

2020 RLLR 83

Citation: 2020 RLLR 83
Tribunal: Refugee Protection Division
Date of Decision: January 15, 2020
Panel: Alexandra Mann
Counsel for the Claimant(s): Bjorna Shkurti
Country: Nicaragua
RPD Number: VB9-02810
Associated RPD Number(s): VB9-02811, VB9-02812
ATIP Number: A-2021-00800
ATIP Pages: 000144-000156

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claims of [XXX] (the “principal claimant”), his spouse [XXX] (the “associate claimant”) as citizens of Nicaragua who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).^[1] The principal claimant and associate claimant’s daughter, [XXX] (the “minor claimant”), a citizen of Panama, is also claiming protection.

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

ALLEGATIONS

[3] The principal claimant’s employer, a Nicaraguan company, transferred him to their office in Panama for the period of [XXX] 2013 to [XXX] 2019. The associate claimant resided with her husband in Panama during this period, and the minor claimant was born in Panama in [XXX]. During their time in Panama, the adult claimants volunteered for their church to raise money for Nicaraguan political refugees. In early 2019, the claimants attended a demonstration in Panama against the Nicaraguan government. The claimants also have several family members who participated in anti-government demonstrations in Nicaragua.

[4] In [XXX] 2019, the principal claimant’s employment contract in Panama came to an end and his employer transferred him back to their office in Nicaragua. On [XXX] 2019, the principal claimant was walking down the street when four armed and hooded men pulled him into a van. The men assaulted the principal claimant and threatened him saying that they knew he was supporting “Golpistas” (a pejorative term for people opposed to the Nicaraguan government) in Panama because they had “people” there. The men also made threats against the principal claimant’s wife and daughter, and then threw him out of the van saying that if they saw him again, they would kill him.

DETERMINATION

[5] I find that the principal claimant and associate claimant are Convention refugees as they have a well-founded fear of persecution in Nicaragua on account of their political opinion.

[6] I find that the minor claimant is not a Convention refugee or a person in need of protection as there is insufficient evidence for me to find that she would face persecution or a s. 97 risk in Panama.

ANALYSIS

Identity

[7] I find that the adult claimants’ identities as Nicaraguan nationals are established on a balance of probabilities by their testimony and the copies of their Nicaraguan passports.^[2]

[8] I find that the minor claimant’s identity as a citizen of Panama is established by the testimony of her designated representative – the principal claimant – and the copy of her Panamanian passport.^[3]

Article 1E of the Refugee Convention

[10] The first question for me to consider is whether the adult claimants are excluded from refugee protection on account of having status, or access to status, in Panama that is substantially similar to the status of a Panamanian national. Pursuant to section 98 of the Act, a person referred to in section E of Article 1 of the Refugee Convention is neither a Convention refugee nor a person in need of protection. Article 1E provides that the Refugee Convention “shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

[11] In Canada v. Zeng, the Federal Court of Appeal set out the following two-part test for assessing exclusion under Article 1E:

Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is “yes”, the claimant is excluded.
If the answer to the first question is “no”, did the claimant previously have status in the third country, substantially similar to that of its nationals, and lost it, or had access to such status and failed to acquire it? If “no”, the claimant is not excluded. If “yes”, the Panel must determine whether the claimant should be excluded by balancing the reason for the loss of status (whether it was voluntary or involuntary), whether the claimant could return to the country, the risk the claimant would face in their country of nationality, Canada’s international obligations and any other relevant factors.^[4]

With respect to the first part of the Zeng test, in order to assess whether the claimant’s status in the third country is “substantially similar” to that of a national, the Panel must consider the following criteria:

the right to return to the country of residence;
the right to work freely without restrictions;
the right to study; and
full access to social services in the country of residence.^[5]

[12] In the present case, the claimants disclosed a copy of a document from the Panamanian authorities, dated [XXX] 2017, confirming that the claimants had been granted a “permanent resident permit.” The principal claimant testified that he and the associate claimant both held “permanent resident status,” but that this status did not confer the right to work. He testified that in order to work in Panama, he was required to obtain a work permit, which 1) was contingent on his employment, 2) only permitted him to work for one employer, and 3) had to be renewed on an annual basis. He further testified that the associate claimant did not have authorization to work in Panama as she did not have a qualified job offer.

[13] The principal claimant’s testimony is consistent with a Response to Information Request (RIR), which appears at item 3.4 of the National Documentation Package (NDP) for Panama. According to this RIR, “every permanent resident who is eligible to work according to their category of permanent residence, must obtain a work permit to be employed, and this must be renewed every year.”^[6] The RIR further states that it is only after 10 years of permanent residence and work permit renewals that a permanent resident can apply for an indefinite work permit.

[14] Considering this evidence, it is clear that the adult claimants’ status in Panama did not grant them rights “substantially similar” Panamanian nationals. Most notably, the claimants’ status in Panama did not grant them the right to work freely without restrictions. The principal claimant was required to renew his work permit on an annual basis, and his authorization to work expired as soon as his employer ended his contract in Panama and reassigned him to their office in Nicaragua. The associate claimant was not permitted to work at all.

[15] I therefore find that the claimants have never held status in Panama that is substantially similar to that of a national. Furthermore, as neither of the claimants had held permanent resident status and work permits in Panama for a period of 10 years, they were not eligible to apply for a status that would allow them to work freely without restrictions. Accordingly, I find that the adult claimants are not excluded under Article 1E.

Nexus to the Refugee Convention

[16] The claimants allege that they will be targeted by the Nicaraguan government and/or pro- government actors – in Nicaragua and Panama – due to their opposition to the Nicaraguan government. I find that there is a nexus between the claimants’ allegations and the Convention ground of political opinion. I have therefore assessed these claims under s. 96 of the Act. I have also assessed whether the minor claimant faces a s. 97 risk in Panama.

Credibility

[17] A refugee claimant’s testimony is presumed to be true unless there is reason to doubt its truthfulness. In this case, the claimants testified in a spontaneous and straightforward manner, and there were no material inconsistencies. They also disclosed documentary evidence which corroborates their allegations, including:

Photographs of the injuries the principal claimant sustained when he was kidnapped on [XXX] 2019;
Photographs of the claimants attending a demonstration in Panama against the Nicaraguan government;
Photographs and letters of support confirming the claimants’ family members participation in anti-government demonstrations in Nicaragua;
A letter of support from the principal claimant’s parents confirming that their house has been marked by pro-government forces as a sign that they have been labeled “Golpistas”, as well as a photograph of the mark on their house.

[18] Additionally, as will be explained in more detail below, I find that the claimants’ allegations regarding the risks they face in Nicaragua are consistent with the independent country condition evidence before me.

[19] Given the documentary evidence and the principal claimant’s testimony at the hearing, I find the principal claimant to be credible and I accept that he has been targeted by pro government forces in Nicaragua due to his opposition to the Nicaraguan government as well as his family members’ participation in anti-government demonstrations. I further accept that the pro-government agents who kidnapped and assaulted the principal claimant have threatened to harm the associate claimant and minor claimant as well.

Well-Founded Fear of Persecution and Risk of Harm

Well-Founded Fear of Persecution in Nicaragua

[20] According to the country condition evidence, individuals opposed to the ruling government in Nicaragua face widespread persecution. The Freedom House report at item 2.3 of the NDP states that;

“(t)he election of Sandinista leader Daniel Ortega in 2006 began a period of democratic deterioration marked by the consolidation of all branches of government under his party’s control, the limitation of fundamental freedoms, and unchecked corruption in government. In 2018, state forces, with the aid of informally allied armed groups, responded to a mass antigovernment movement with violence and repression. The rule of law collapsed as the government moved to put down the movement, with rights monitors reporting the deaths of over 300 people, extrajudicial detentions, disappearances, and torture.”^[7]

[21] The United States (U.S.) Department of State report at item 2.1 of the NDP reports that the Nicaraguan government’s crackdown on political dissidents escalated in 2018 when the President “instituted a policy of “exile, jail, or death” for anyone perceived as opposition.” This report further states that in April 2018, the government “ordered police and parapolice forces to put down with violence peaceful protests that began over discontent with a government decision to reduce social security benefits.” Government and pro-government forces targeted protesters with live ammunition and snipers. Protesters responded by building barricades and confronting authorities with rocks and homemade mortars. This in turn led to further violent suppression from the government. There are even reports that the government has killed police officers for refusing to follow orders to violently suppress the protests.^[8]

[22] According to a 2018 Amnesty International report at item 2.5 of the NDP, the government’s strategy of lethal use of force against protesters was widespread and, in many cases, indiscriminate. After dismantling the protesters’ blockades, the government “increased its strategy of persecution and carried out mass arbitrary detentions of people identified as having participated in the protests at some point in the preceding months.” In doing so, the government has cast an incredibly wide net. Even carrying a Nicaraguan flag – which has become a symbol associated with the anti-government protests – is considered grounds for arrest. The Amnesty report states that “(s)ince June 2018, the government has adopted a strategy of indiscriminate repression with intent to kill not only in order to completely smash the protests, but also to punish those who participated in them.”^[9]

[23] As of November 2018, the “conflict left at least 325 persons dead, more than 2,000 injured, hundreds illegally detained and tortured, and more than 52,000 exiled in neighboring countries.” The protesters, and other government opponents, who have been arrested have faced “harsh and life-threatening prison conditions,” torture and even extrajudicial killings. There are some reports of the bodies of detainees being subsequently found in the morgue or strewn about city streets.^[10]

[24] There are also reports that the Nicaraguan authorities and pro-state actors have targeted the family members of those who participated in the anti-government protests. Observers list demonstrators, student leaders, human rights defenders and the family members of the victims among those who are targeted. According to the Inter-American Commission on Human Rights, the family members of those who have been targeted for their opposition to the government are among those at “serious risk.”^[11]

[25] As stated previously, I believe that the claimants, as well as several members of their family, have participated in demonstrations against the Nicaraguan government, and that the principal claimant was consequently kidnapped, assaulted and threatened by pro-government forces. I also believe that the attackers have threatened to kill the associate claimant and minor claimant as well. In light of the country condition evidence that government and pro-state forces in Nicaragua target anti-government protesters and their family members, I find that the claimants’ fear of persecution in Nicaragua on account of their political opinion is well-founded. I therefore accept that the claimants face a serious possibility of persecution if returned to Nicaragua.

[26] For clarity, according to the information on file, the minor claimant holds citizenship in Panama and no other country. In the event that the minor claimant does hold citizenship, or a right to citizenship, in Nicaragua, I find that she has a well-founded fear of persecution in this country on account of her membership in the particular social group of the family. The objective evidence shows that the family members of anti-government protesters are at risk of being targeted by state or pro-state actors in Nicaragua. Moreover, the men who attacked the principal claimant specifically threatened to harm the minor claimant. I therefore find that all three claimants would face a serious possibility of persecution if returned to Nicaragua.

Well-Founded Fear of Persecution in Panama

[27] Panama is not a country of reference for the adult claimants as they do not hold Panamanian citizenship. However, as the minor claimant is a citizen of Panama, I must consider the claimants’ allegations with respect to Panama in order to assess the minor claimant’s claim for protection. Based on the claimants’ evidence and the country condition evidence, there is insufficient evidence for me to find that the minor claimant has a well-founded fear of persecution or faces a s. 97 risk in Panama.

[28] The claimants allege that they are at risk of being killed in Panama by the Nicaraguan authorities or supporters of the Nicaraguan government. The principal claimant believes that these actors have reach throughout Panama because the men who attacked him in Nicaragua on [XXX] 2019, told him that they were aware that he was living in Panama as “we have people there too.”^[12]

[29] When I asked whether the claimants had had any problems in Panama, the principal claimant described a conversation he had with a Nicaraguan priest, named [XXX], at a community event in Panama. [XXX] told the principal claimant that another priest, named [XXX], had been threatened with death in Nicaragua for raising awareness of the Nicaraguan government’s human rights abuses. [XXX] told the principal claimant that there was a plan to bring [XXX] to Panama through Honduras. A man overheard this and asked why [XXX] did not come to Panama directly. The principal claimant testified that [XXX] did not respond to this question, but from his expression it was apparent that he was very afraid. Based on this interaction, the principal claimant concluded that the man who overheard their conversation was an informer for the Nicaraguan government.

[30] When I asked the principal claimant whether he was aware of any cases of people being targeted in Panama by the Nicaraguan authorities or supporters of the Nicaraguan government, he referred to a news article in disclosure regarding a homicide in eastern Panama. This article reports that subjects entered through the window of a residence and killed a Nicaraguan citizen, and that the motive was unknown since there were no indications of theft.^[13] The principal claimant testified that a pro-Nicaraguan newspaper described the victim in this incident as a “Nicaraguan with a dark past.” Based on this report, the principal claimant concluded that the victim had been murdered by supporters of the Nicaraguan government due to his perceived opposition to the state.

[31] I find that the principal claimants’ reasons for believing that the Nicaraguan authorities or pro-state actors have reach throughout Panama are speculative. I accept the principal claimant’s testimony that the men who attacked him in Nicaragua knew that he had been living in Panama. However, there is insufficient evidence for me to find that these agents of persecution would have the means or motivation to target the claimants in Panama. While the claimant’s testimony supports a finding that there are Nicaraguan agents monitoring Nicaraguans in Panama, there is insufficient evidence that they are doing anything more than monitoring. I was unable to find any reports in the NDP of Nicaraguan actors targeting people in Panama due to their opposition to the Nicaraguan government. As the article provided by the claimants does not specify the culprit’s motive, I cannot accept this article as evidence of a Nicaraguan citizen being targeted in Panama for political reasons. The comment in the Nicaraguan media that the victim was a “Nicaraguan with a dark past” is insufficient for me to make such a finding.

[32] With respect to the principal claimant’s belief that the man who overheard his conversation with [XXX] was an informer for the Nicaraguan government, I find that there is insufficient evidence for me to accept this as a sufficiently established fact. The principal claimant alleges that the man asked [XXX] why [XXX] did not travel directly to Panama, which caused [XXX] to have a fearful expression on his face. This is not enough for me to find that the man was an informer for the Nicaraguan government, on a balance of probabilities.

[33] For these reasons, I find that there is insufficient evidence that the Nicaraguan government and/or pro-government actors have the means or motivation to target anti-government protesters in Panama. I therefore find that the minor claimant does not have a well founded fear of persecution in Panama under s. 96.

Section 97 Risk in Panama

[34] Similar to the reasons given with respect to s. 96, I find that there is insufficient evidence to support a finding that the minor claimant faces as. 97 risk in Panama. The Federal Court has held that the range of harms which may constitute persecution is wider, or of similar scope, than the range of harms that may constitute a s. 97 risk. In addition, the legal test for s. 96 — serious possibility — is lower than the legal test for s. 97 — balance of probabilities.^[14] As the claimants were unable to establish that the minor claimant faces a serious possibility of persecution in Panama, I also find that they have not established — on the higher threshold of a balance of probabilities — that the minor claimant would be subjected personally to a risk of harm in Panama contemplated by s. 97, which is narrower than the scope of persecution.

State Protection

Nicaragua

[35] For the claims against Nicaragua, as one of the agents of persecution is the Nicaraguan state, I find that the presumption of state protection has been rebutted.

Panama

[36] With respect to the minor claimant’s claim against Panama, as I have found that she does not face a well-founded fear of persecution or as. 97 risk in Panama, it is not necessary to consider the availability of state protection in this country.

Internal Flight Alternative

Nicaragua

[37] Regarding the viability of an internal flight alternative in Nicaragua, as the Federal government is one of the agents of persecution and is in effective control of its territory, I find that the claimants would face a serious possibility of persecution throughout Nicaragua. I therefore find that there is no viable internal flight alternative for the claimants within Nicaragua.

Panama

[38] With respect to the minor claimant’s claim against Panama, as I have found that she does not face a well-founded fear of persecution or a s. 97 risk in Panama, it is not necessary to consider the availability of an internal flight alternative in this country.

CONCLUSION

[39] For these reasons, I find that the principal claimant and associate adult claimants are Convention refugees and I accept their claims.

[40] With respect to the minor claimant, as I find that she does not have a well-founded fear of persecution or face a s. 97 risk in Panama, her claim is therefore denied.

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

^[2] Exhibit 1.

^[3] Exhibit 1.

^[4] Canada v. Zeng, 2010 FCA 118, para. 28.

^[5] Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.).

^[6] Exhibit 3.2 National Documentation Package (NDP), Panama, September 30, 2019, Item 3.4 Response to Information Request (RIR) PAN106335.E.

^[7] Exhibit 3.1, NDP, Nicaragua, October 31, 2019, Item 2.3.

^[8] Exhibit 3.1, NDP, Item 2.1.

^[9] Exhibit 3.1, NDP, Item 2.5.

^[10] Exhibit 3.1, NDP, Item 2.1.

^[11] Exhibit 3.1, NDP, Item 2.4.

^[12] Exhibit 2.1.

^[13] Exhibit 4, p. 182.

^[14] Mudrak v. MCI, 2015 FC 188 at para. 43, affirmed 2016 FCA 178 (without answering certified questions).

All Countries Kenya

2020 RLLR 82

Citation: 2020 RLLR 82
Tribunal: Refugee Protection Division
Date of Decision: November 17, 2020
Panel: Ekaterina Perchenok
Counsel for the Claimant(s): Joshua Moegi Makori
Country: Kenya
RPD Number: TC0-03000
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000138-000143

DECISION

[1] MEMBER: Okay so we’re back on the record now. I’m sorry to have kept everybody waiting for me but counsel I don’t need to hear questions from you if that’s okay.

[2] COUNSEL: That’s okay.

[3] MEMBER: I am ready to make a decision, okay?

[4] CLAIMANT: Okay.

[5] MEMBER: This is the decision for [XXX], File number TC0-03000. I’ve considered your testimony and the other evidence in your case and I’m ready to render a decision orally.

[6] You claim to be a citizen of Kenya; you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection act. In coming to a decision in your claim I have taken into consideration the chair person’s Guideline 4 for women refugee claimants fearing gender related persecution in assessing the harm for feared by the claimant.

DETERMINATION:

[7] For the reasons that follow I find that you are a Convention refugee on the grounds of membership in a particular social group as a young woman facing gender based violence.

ALLEGATIONS:

[8] Your allegations are found in your Basis of Claim Form at Exhibit 2. To summarize you allege that you face persecution at the hands of your father’s family and your Kalenjin community due to your gender and age and specifically that you face the prospect of female genital mutilation and forced marriage against your wishes.

IDENTITY:

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

NEXUS:

[10] I find there is a clear nexus between your fear and the convention ground of membership in a particular social group as a young woman facing gender based violence from your family and community. Therefore I have considered your claim under Section 96.

CREDIBILITY:

[11] When a claimant swears that certain facts are true, this creates a presumption that they are truthful unless there is reason to believe otherwise. Overall I find you to be a credible witness and I therefore accept your testimony and the statements you have made in your Basis of Claim.

[12] You testified in a straightforward and detailed manner. I find that there are no serious reasons to reject your testimony on the basis of credibility. During the hearing you were responsive to questions that were asked and you did not appear to embellish your evidence.

[13] You testified to be [XXX] years old. Shortly after [XXX] and before your [XXX] birthday, you testified that you were summoned to a meeting at a community eiders house in [XXX] 2018 where you were informed that [XXX](ph) was selected to be as a husband for you and was ready to pay a Dowry for you.

[14] You knew [XXX] as an older rich white man from the community, sorry older rich man, I apologize. You were told of your upcoming circumcision in preparation for the wedding. You testified that you became upset at this and tried to educate those at the meeting about the negative effects of circumcision.

[15] You testified about the dismissive reaction of your opposition, to your opposition and how your mother remained quiet at that meeting. You testified that things between yourself and your father were very tense for the next several months but that your mother told you about her true feelings on the issue, that she herself was circumcised and did not want you to go through that.

[16] You testified that after your cousin’s funeral in [XXX] you were beaten by your father and uncles because you would not agree to the cultural rituals of FGM. You testified that you ran away from your cousin’s house and went to the police but that they were no help.

[17] You testified that you were told by the police to turn to your community eiders for support. You testified about staying with various friends in Nakuru Nairobi and Mombasa and about being located by strange men.

[18] When you were in Nakuru a man came to your house with a warning for you about “going against your community”. When you were in Nairobi you believed you were being followed and got a phone call where in the caller threatened to kill you.

[19] When you were in hiding in Mombasa you were attacked by two men who attempted to kidnap you and “take you home”. You did not know how they found you but believed all of these incidents were connected to your rejection of the marriage and the FGM.

[20] All throughout you testified you were in contact with your mother, who was trying to help you. At her suggestion you applied for a passport and with her help you applied for a visa to Canada and fled Kenya.

[21] Your allegations were internally coherent and consistent with the narrative and the affidavits you provided from [XXX] (ph), [XXX] (ph) I apologize if I mispronounced that, and [XXX](ph). Your claim is plausibly based on the documentary evidence. I discern not contradictions or omissions when comparing your testimony to the information on file.

[22] You were able to testify credibly about the allegations and you provided corroboration to those allegations. I find you established your allegations on a balance of probabilities, therefore I find you’ve established that you face mistreatment at the hands of your father, his family and your tribal community based on your circumstances of being a young female who refuses to undergo FGM and being forced into marriage on a balance of probabilities.

OBJECTIVE BASIS:

[23] I find that your fear of persecution has an objective basis. In that I found you to be credible and your claim is supported by the country condition documentation. The national documentation package for Kenya at Section 5 speaks extensively of the difficulties faced by women in Kenya.

[24] According to the documentary evidence forced marriage and FGM continue to occur in Kenya. Though it does appear that the practises are starting to fall out of favor, FGM and forced marriage reportedly occur in higher frequencies in rural areas as compared to urban areas. You testified that your family comes from such a rural area where your father tends to cattle.

[25] In Item 5.3 of the NDP, titled FGM in Kenya Country Profile Update 2016, the item identifies that FGM rates correlates strongly with educational levels and location. The report notes that in your ethnic group, the Kalenjin, girls tend to undergo FGM at a later age with the majority being cut after the age of ten, which coincides with your testimony about it being proposed at the age of eighteen in preparation for marriage. 27.9 percent of Kalenjin women have undergone FGM according to a 2014 study which is cited in that same report.

[26] You also provide articles as part of your personal disclosure at Exhibit 4 which speaks to some of the Kalenjin traditions relating to forced marriage and FGM. In providing a cultural context for your allegations, the documentary evidence establishes and objective basis for your claim. I conclude that your fear of persecution as a member of a particular social group is well founded.

STATE PROTECTION:

[27] The relevant case law establishes the presumption that the state is capable of protecting and providing adequate protection to its citizens. In your case there is clear and convincing evidence which demonstrates that adequate state protection is not available to you.

[28] You testified that on two occasions you attempted to turn to the police, in both cases the police were unhelpful and dismissive of your allegations.

[29] Item 2.1 of the NDP notes human rights issues in Kenya including the lack of accountability in many cases involving violence against women, include rape and FGM. Although legislation has been passed forbidding the practise of FGM in Kenya, issues relating to FGM continue.

[30] Item 2.1 notes that authorities are reticent to get involved in matters seen as being of a domestic nature and are known to accept bribes. Authorities continue to cite domestic violence as a leading cause of preventable and non accidental death for women during the year except in cases of death police officers generally refrain from investigating domestic violence, which they consider to be a private family matter.

[31] The law makes it illegal to practise FGM per cured the services of someone who practises FGM or send a person out of the country to undergo this procedure. The law also makes it illegal to make derogatory remarks about women who have not undergone FGM, government officials often practises being in public awareness programs to prevent the practise.

[32] Nevertheless, individuals continue to practise FGM widely. Mixed support for the practise remains deep-rooted in some local cultures as well. Several reports cite that approximately twenty one percent of all adult women had undergone the procedure at some point in their lives in Kenya but that the practise has had, was heavily concentrated in a minority of communities.

[33] For these reasons, I find that there is convincing evidence that adequate state protection would not be available to you.

[34] I conclude that the presumption of state protection for you, in your particular noted circumstances has been refuted.

INTERNAL FLIGHT ALTERNATIVE:

[35] Claimants must establish that they face persecution throughout their country of nationality. Nevertheless, I find that a viable internal flight alternative does not exist for you in Kenya. You are a young woman of limited means with a [XXX] education. You have attempted to find suitable alternatives in various cities noted above and have even spent some time sleeping outside out of fear of being found.

[36] Item 5.5 of the NDP makes clear that there is not very much assistance given to single women looking for housing or employment either from the government or from NGO’s in many parts of Kenya.

[37] You also testified about trying to find safety in both Nairobi and Mombasa. In all of the locations mentioned you were located and threatened. On several occasions you testified about barely escaping abduction. Although you have no evidence that it directly connects to your father, based on the information you’ve provided you believe it to be connected to your community and your refusal to undergo FGM.

[38] I find sufficient grounds to conclude that relocating within Kenya would be unreasonable in your situation and I conclude that a viable internal flight alternative is not open to you in your country of origin.

CONCLUSION:

[39] Based on the totality of the evidence I find you’ve established a well founded fear of persecution as a member of a particular social group and that you are a Convention refugee under Section 96 of the act. Your claim for refugee protection is granted.

[40] Thank you.

———- REASONS CONCLUDED ———-

All Countries Syria

2020 RLLR 81

Citation: 2020 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: September 23, 2020
Panel: Daniel Mckeown
Counsel for the Claimant(s): Tarek Abou Lebadeh
Country: Syria
RPD Number: TB9-28810
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000135-000137

DECISION

[1] MEMBER: The claimant is [XXX] she seeks refugee protection against Syria pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. For the following reasons, the Panel finds that the claimant is a Convention refugee and this claim is accepted.

[2] This claim was based on the following allegations. The claimant fears the severe conditions in Syria which have been caused by the civil war. As an elderly woman she is fearful of living alone and what will happen to her. The claimant obtained a Canadian visa on [XXX] 2018, she travelled to Canada on [XXX] 2019, and she signed her Basis of Claim on [XXX] 2019.

[3] The Panel took into consideration the Chairpersons Guidelines on women refugee claimants when considering the process of the hearing and assessing the facts of this case.

[4] The identity of the claimant was established on the basis of her Syrian passport, the original of which was seized by the Minister.

[5] The Panel had no significant credibility concerns about this claim. The Panel had no significant credibility concerns about-, excuse me as the claimant explained she did not leave Syria earlier because her husband was elderly and sick so she could not leave him. He died in 2016 so the claimant started thinking about leaving then. Once she had her visa in [XXX] 2018, she continued to be fearful for her daughter who also would have been left alone so she did not leave until [XXX] 2019 when the claimant’s daughter told her to leave and not worry about her. The claimant was clear and straightforward, there were no inconsistencies in her evidence or any attempts to embellish this claim. Any concerns that the Panel had were reasonably explained or otherwise did not outweigh the significant evidence in support of this claim.

[6] In that respect the objective country conditions as reported in the NDP for Syria are unequivocal about the dire humanitarian situation in the country. It is well known that Syria has been in the midst of a horrific civil war for nine years which has seen incredible human rights atrocities committed on all sides of the conflict. The IRB has designated Syria as a country which is eligible for determination on a paper review basis, such is the severity of the conditions there, and to be perfectly honest the Panel felt this was one such claim which wo-, should have been flagged for paper review. The most recent source in the NDP for Syria is the March 2020 U.S. Department of State report and this source makes clear that the civil war and dire humanitarian situation continues unabated to this time. Quoting the UNHCR, the USDOS report notes that it is not safe, and it does not promote the return of refugees at this time. Further, the USDOS report notes that refugee returnees are often looked upon with suspicion for suspected support of the opposition. The country conditions evidence also supports that women face a significantly elevated risk of violence because of these conditions. The Panel is satisfied therefore that the claimant fits the profile of a person at high risk upon return to Syria and the claimant does have a Convention Nexus on the basis of her gender.

[7] Given the country conditions in Syria, the claimant has rebutted the presumption that state protection would be adequate and forthcoming as the state of war exists throughout the country, there is no location in Syria the claimant could go where she would not face a serious possibility of persecution. For all these reasons the Panel finds that this claim is credible, the claimant’s fear is well-founded, the claimant faces a serious possibility of persecution on account of her membership in a particular social group in Syria. The claimant is a Convention refugee and this claim is accepted.

———- REASONS CONCLUDED ———-

All Countries China

2020 RLLR 80

Citation: 2020 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: October 2, 2020
Panel: Sarah Morgan
Counsel for the Claimant(s): Mary Weng
Country: China
RPD Number: TB9-25891
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000132-000134

DECISION

[1] MEMBER: This is a decision in the claim of [XXX], citizen of China who seeks refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. This decision is being rendered from the bench.

Determination:

[2] I find that you are a Convention refugee based on imputed political opinion as a Falun Gong practitioner.

[3] To summarize your allegations, you began practicing Falun Gong in [XXX] 2018. A fellow practitioner was arrested and you were warned to stop practicing Falun Gong. You were detained by authorities in [XXX] of 2019, forced to attend re-education classes and forced to sign a document repudiating Falun Gong.

[4] Authorities also stopped paying your pension, and you left China as you feared further detention and ill-treatment from authorities.

Identity:

[5] Your identity as a Chinese national is established by your passport.

Credibility:

[6] I did find you to be a credible witness. I note that you provided great details about your understanding of Falun Gong philosophy and about the purpose of the exercises, and I … I believe you have demonstrated a sol id understanding and commitment to the Falun Gong philosophy based on detailed answers that you gave to my Falun Gong questions.

[7] I did find credible that your testimony that you were detained and threatened by authorities owing to your practice, as I find you gave spontaneous details about that including the documents that they gave you when they released you from detention.

[8] I did have a credibility issue with the summons that you provided. I noted to you the hearing that it … it doesn’t look like the summons that I have examples of, and I don’t find credible that you wanted for arrest when you left China because I … I find, given the extensive surveillance Chinese authorities have that if you were indeed a fugitive from justice that you would not have been permitted to exit China.

[9] I do find however credible that you are a genuine Falun Gong practitioner. I note also your activities in Canada. I find you have a sur place claim.

[10] Also, I note the photograph that’s published by a Canadian newspaper that you are … you’re in that obviously in the newspaper, and the article shows Falun Gong practitioners in Toronto. And I do find that increases a risk from authorities in China, given that they could be aware of your Falun Gong activities in Canada, given that your … those activities are published in a publication available everywhere.

[11] Concerning State protection, it is the State that has outlawed the practice of Falun Gong, so I find it objectively unreasonable for you to seek their protection.

[12] There are many documents before me, those given by your counsel and those found at Exhibit 3 confirming that authorities have pursued sanctions against practitioners since 1999, and those discovered to be practitioners face re-education camps, harassment, removal of benefits, imprisonment, and torture.

[13] I do find, based on the evidence that you provided as well as the country documents, that your fear of persecution is objectively well-founded.

[14] As the agent of persecution is the State and Falun Gong is banned throughout the country, I find there is not an internal flight alternative for you.

[15] I conclude that you are a Convention refugee and I accept your claim.

[16] Ma’am, I thank you for your testimony today. Counsel, thank you. Madam Interpreter, I can’t say enough. Thank you so much. Excellent interpretation. I understand that the … the issues with having to speak really loudly with a mask to make sure that our claimant was understood and you did an excellent job. Thank you.

[17] INTERPRETER: My pleasure really.

[18] MEMBER: Thank you. Thank you all.

———- REASONS CONCLUDED ———-

All Countries Turkey

2020 RLLR 79

Citation: 2020 RLLR 79
Tribunal: Refugee Protection Division
Date of Decision: January 10, 2020
Panel: D. Simonian
Counsel for the Claimant(s): Esther Lexchin
Country: Turkey
RPD Number: TB9-16173
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000128-000131

DECISION

[1] MEMBER: I have considered your testimony and the other evidence before me and I’m ready to render my decision orally. You will receive an unedited copy of this decision in the mail. Your counsel will also get a copy. This is the decision in the claim for refugee protection made by [XXX], file number TB9-16173. You alleged that you are a citizen of Turkey and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] I find that you are a Convention refugee because you have established that you face a serious possibility of persecution in Turkey due to your Kurdish ethnicity and your pro-Kurdish political activity as a supporter of the People’s Democratic Party here and after HDP. I accept your claim.

[3] The details of your claim are set out in your Basis of Claim form dated October 11th, 2018, found at Exhibit 2 and in your amended Basis of Claim form narratives, found at Exhibits 2.1 and 8.

[4] In summary, you alleged that you are Kurdish, that you support the HDP and that you are involved in activities critical of the current Turkish government. You fear the Turkish government, Turkish Nationalists as well as certain anti-Kurdish bureaucrats who have infiltrated the military, education and health care sectors. You alleged that you have participated in a number of protests, that you helped mobilize students and other fellow citizens and that you have been politically outspoken on social media. You also allege that you have been arbitrarily detained by police on a number of occasions and that you sustained a permanent injury to your hand as a result of being beaten by police.

[5] With respect to nexus, I find there is a link between what you fear and one of the five Convention grounds, specifically, political opinion. I have therefore assessed your refugee claim under Section 96 of the Immigration and Refugee Protection Act. You allege that you are a citizen of Turkey and that you are not a citizen or permanent resident of any other country. You provided your genuine Turkish passport and Turkish identity card to CBSA, copies of which are found at Exhibit 1. Based on that evidence, I find that you have established your identity as required under Section 106 of the Immigration and Refugee Protection Act and rule 11 of the Refugee Protection Division rules. I am satisfied on a balance of probabilities that you are who you say you are.

[6] The determinative issue in this claim is credibility. For the reasons I will outline shortly, I find you to be credible on a balance of probabilities. You provided evidence, both in your personal documents and in your testimony that you are Kurdish and that you have engaged in anti-government activities. In your Basis of Claim form and in your testimony, you explained your ethnic background and your experience growing up as a Kurdish person in Turkey. You further explained your involvement in the HDP, including how their goals align with your political ideology. You also explained your role in certain protests, how you were detained on several occasions and how you were attacked by police following a fight that broke out at your University.

[7] As part of the exhz-, as part of Exhibits 5 and 8, you provided corroborating evidence, including, the record of your complaints statements, a letter from your University dormmate, photos of you participating in protests, a photo of you after you were injured by police, a Facebook post related to a protest that you attended, a text message exchange with [XXX], the [XXX], a letter from the Kurdish community centre in Canada and YouTube clips of you participating in a protest in [XXX]. Your personal documents were consistent in content and chronology with the account you gave in your Basis of Claim form and in your testimony regarding the circumstances that caused you to fear persecution in Turkey as a politically active Kurd.

[8] I therefore find on a balance of probabilities that your documents are credible and trustworthy. Your testimony was straight-forward and responsive to my questions. There were no material inconsistencies or contradictions, you spoke passionately about your beliefs, your nation and your political goals. You provided many details with spontaneity and without embellishment. I therefore accept what you allege in your testimony and in your Basis of Claim form and I find on a balance of probabilities that you have established your profile as a politically active Kurd.

[9] I find there is an objective basis for your fear of persecution in Turkey. In other words, the objective evidence is consistent with your allegation that because of your ethnicity and your political activism, you would face a serious risk of persecution in Turkey. In reaching my conclusion, I consider the documents in the National Documentation Package for Turkey, dated March 29, 2019, the index of which is found at Exhibit 3. I also consider the documents that counsel submitted on your behalf which are at Exhibit 6 and 7. In particular, the NDP states that since the 2016 attempted coup d’état, the situation for Kurds in Turkey has worsened.

[10] NDP Item 13.1 indicates that “The situation has worsened in Turkey for Kurds”. Under the state of emergency, the executive orders make it easy to arrest Kurds and put them in jail without due process. The prosecutors can keep arrested people up to a month without a lawyer. Furthermore, the current permissive political environment increased tolerance against Kurds in the country. The executive orders targeted Kurds, hundreds of academics, public employees were fired from their works. Some of them have nothing to do with the HDP. As for society, the rise of anti-Kurdish attitudes is on the rise. The government again adopted a strong nationalist conservative discourse which alienated secular political opposition. Those who speak the Kurdish language are not tolerated and deemed as potential terrorists in Turkey. Communal violence against her-, Kurds is on the rise after the coup attempt but mainstream media are also hesitant to make news about these incidents”.

[11] Under the guise of the emergency decrees and anti-terrorism laws, the Turkish government disproportionately subjects Kurds and those critical of the government to various human rights violations. While Turkey is no longer under a state of emergency, the emergency decrees granting abusive powers remain in force. Despite the public declaration of a repeal of the state of emergency, there is no change in the treatment of Kurds and those persons who are or perceived to be critical of the government. Based on the objective country documentary evidence, I find on a balance of probabilities that your fear of persecution is well-founded.

[12] There is a presumption that States are capable of protecting their citizens, however, a claimant can rebut the presumption of state protection and demonstrate that they would not receive such protection by providing clear and convincing evidence of the unwillingness or inability of the State to protect them. You testified that rather than protecting you, Turkish police forces were often the source of violence, attacks and oppression. Based on your personal circumstances as well as the objective country documentation, I find that you have rebutted the presumption of state protection. In other words, adequate state protection would not be available to you if you were to seek it in Turkey.

[13] In considering whether an internal flight alternative exists for you, I find that you face a serious possibility of persecution throughout Turkey. The objective documentary evidence indicates that the government and authorities operate similarly throughout the country. In other words, there is nowhere that you could live safely in Turkey. I therefore find that there is no internal flight available to you in that country.

[14] In conclusion, after assessing all of the evidence, I find that you would face a serious possibility of persecution pursuant to Section 96 of the Immigration and Refugee Protection Act should you return to Turkey. Accordingly, I find that you are a Convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

All Countries Iran

2020 RLLR 78

Citation: 2020 RLLR 78
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2020
Panel: Deborah Coyne
Counsel for the Claimant(s): Mohsen Masoori
Country: Iran
RPD Number: TB9-05347
Associated RPD Number(s): TB9-05418, TB9-05439
ATIP Number: A-2021-00800
ATIP Pages: 000124-000127

DECISION

[1] MEMBER: This is the decision in the claim for refugee protection of [XXX] principal claimant, [XXX] associate claimant and [XXX] the minor claimant, who claim to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The allegations are fully set out in the Basis of Claim form, principal claimant alleges a fear of persecution at the hands of the Iranian government because of his political opinion and anti-regime activities. The associate claimant and minor claimant also have a fear of persecution because of their imputed political opinion and association with the principal claimant, they have also been directly threatened by Iranian authorities.

DETERMINATION

[2] The Panel finds that the principal claimant has established a serious possibility of persecution because of his political opinion and his anti-regime activity and that therefore he is a Convention refugee pursuant to Section 96 of IRPA. The associate claimant and minor claimant also face a serious possibility of persecution on a-, because of their imputed political opinion and they have been threatened Iranian authorities as well. So, they are also Convention refugees pursuant to Section 96 of IRPA.

IDENTITY

[3] On a balance of probabilities, the claimants’ established that they are citizens of Iran based on certified true copies of their passports.

CREDIBILITY

[4] On a balance of probabilities, the Panel finds the following facts to be true or following allegations to be true. The principal claimant worked in a [XXX] or [XXX] that had been taken over to be run by the Islamic Revolutionary Guard. Worker’s wages were not paid over an extended period of time and the principal claimant joined in protests, without any income he managed with family resources and support during this period.

[5] Specifically, on [XXX] 2017, he joined a large gathering on Labour Day, the principal claimant was detained and released after signing something said he would not protest again. In [XXX] 2017, however he did join a nationwide protest against inflation, unemployment, injustice and so forth. There were undercover police hitting protestors with batons, principal claimant was hit but he evaded detention at that time.

[6] In [XXX] 2018, the principal claimant and his wife went to Turkey to get fingerprinted at the Canadian Embassy in order to get a temporary resident visa to go and visit the principal claimant’s brother here in Canada. At that time, he had no intention yet of leaving permanently. Upon their return from Turkey they were contacted by their town’s local intelligence services, so town of [XXX]. And they were taken into interrogation from 9 AM to 9 PM, when they were asked about why they went to Turkey and basically accused of being in Turkey to assist opposition to the Iranian regime. They did not say anything about getting their TRV’s, if they had they might have had exit interdiction slapped on them.

[7] When they were released, they were told that they would be contacted by the intelligent services of Ramadan which is the capital city. Both were very concerned. On [XXX] 2018 the claimant was taken into custody, he was mistreated and tortured. Panel finds his testimony very compelling and authentic. He was told that his wife and child were hurt, fortunately this was not true and he was released on [XXX] 2018. Panel notes that the associate panel-, associate claimant’s testimony in this, in this regard was also very compelling about trying to figure out where he was in the period, during his period in detention and so forth. At that point, the family decided they had to leave Canada and use the TRV’s and came here in [XXX] 2018. The claimants claimed refugee protection about four months later, once they had satisfied themselves that there was no hope of being safe if they returned.

[8] The Panel accepts on a balance of probabilities that the principal and associate claimants have provided credible evidence to support their subjective fear of persecution by Iranian authorities and of detention and a risk to their lives as a result of the principal’s claimant’s political activities should they return to Iran. Overall, the Panels finds the claimants’ evidence was consistent, plausible, and not contradicted by documentary evidence on country conditions in Iran. The allegations were supported by personal documents that were credible, there were no contradictions or omissions that go to the core of the claim. The Panel, therefore, accepts the evidence as establishing the claimants’ subjective fear of persecution because of political opinion or imputed political opinion.

[9] On just a few words on an objective basis. The objective basis for the claim and documentary evidence, the Panel finds that the claimants’ subjective fear is based on the document-, objective documentary evidence before the panel and is therefore well-founded. So, just looking for example at the US Department of State report for 2018, which is in the National Documentation Package for Iran. It notes that the Iranian regime engages in politically motiva-, motivated violence and repression to suppress dissenting political opinions, subjecting people to arbitrary arrest and detention, as well as unfair judicial processes.

[10] The government’s human rights record remains extremely poor and worsened in several key areas, it goes on to give some examples. I also note that Pa-, that counsel submitted some articles that are specifically focused on persons that were detained after protesting labour protests in Iran around the same time that the claimant was on the streets as well. Panel finds on a balance of probabilities that the objective country documentary evidence supports the claimants’ allegations. And the claimants have a well-founded fear of detention and risk to their lives and torture in Iran by reason of political opinion and anti-regime activities.

STATE PROTECTION

[11] As the agent of persecution is the government of Iran, in this case, the Panel finds it would be objectively unreasonable for the claimants the seek the protection of the Iranian State. Panel finds the claimants have rebutted the presumption of state protection with clear and convincing evidence.

INTERNAL FLIGHT ALTERNATIVE

[12] The Panel finds that the objective country evidence establishes the authorities operate similarly throughout Iran and the claimants face a serious possibility of persecution throughout Iran because of their political opinion, or imputed political opinion. Therefore, a viable internal flight alternatives are not available to the claimants.

CONCLUSION

[13] Based on the foregoing analysis, the Panel concludes that the claimants are Convention refugees and their claims are accepted.

———- REASONS CONCLUDED ———-

All Countries Venezuela

2020 RLLR 77

Citation: 2020 RLLR 77
Tribunal: Refugee Protection Division
Date of Decision: March 9, 2020
Panel: C. Ruthven
Counsel for the Claimant(s): Constance Nakatsu
Country: Venezuela
RPD Number: TB8-30661
Associated RPD Number(s): TB8-30706, TB8-30822, TB8-30660
ATIP Number: A-2021-00800
ATIP Pages: 000110-000123

REASONS FOR DECISION

[1] These reasons and decision are in regards to the claims for protection made by [XXX] (principal claimant), [XXX] (youngest female claimant), [XXX] (male claimant), and [XXX] (eldest female claimant).

[2] Each is claiming protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.^[1] The panel heard the claims jointly, pursuant to Refugee Protection Division Rule 55.^[2]

ALLEGATIONS

[3] The principal claimant’s full allegations are set out in her Basis of Claim Form and related narrative,^[3] including the narrative amendments.^[4] The claims of the male claimant, the eldest female claimant, and the youngest female claimant each rely on the narrative of the principal claimant. In summary, the claimants fear persecution in Venezuela due to the anti-government political opinion of the three eldest claimants.

[4] The principal claimant and the male claimant each joined the Primero Justicia political party in 2010. The eldest female claimant subsequently joined Primero Justicia in 2011. Their participation included distributing flyers in their respective neighbourhoods, and attending weekly meetings. The principal claimant and the male claimant loaned out sound equipment from their business for use by Primero Justicia at rallies and marches.

[5] The principal claimant and the male claimant were assaulted and threatened on three occasions related to the 2012 presidential campaign. In [XXX] 2012, just prior to the official campaign start, the principal claimant and the male claimant were threatened by three chavistas on motorcycles. The principal claimant was threatened as she was pushed against a wall, and told to stop supporting Henrique Capriles Radonski. On [XXX] 2012, chavistas again attacked the principal claimant and the male claimant in Puerto Cabello. The male claimant was injured with a stick, and he required hospital treatment for an abdominal injury. Finally, the principal claimant was threatened on [XXX] 2012 at a march in Barinitas.

[6] The principal claimant, the male claimant, and the eldest female claimant were threatened by men on motorcycles in Carabobo State on [XXX] 2013, as they were setting up sound equipment for a Henrique Capriles Radonski rally. The men physically assaulted the eldest female claimant, and they showed the principal claimant a threatening gesture.

[7] The physical attacks escalated to include specific mention of claimant names by the attackers. On [XXX] 2013, the eldest female claimant organized an opposition rally in her neighbourhood, to coincide with International Workers’ Day. Men on motorcycles approached the eldest female claimant, and threw a tear gas canister at her while calling her name, and referencing the principal claimant. The eldest female claimant was treated for gas inhalation.

[8] The adult male was physically assaulted on [XXX] 2014 at a march in support of Leopoldo Lopez and other opposition figures. The adult male fell to the ground unconscious. During the subsequent hospital treatment, the adult male was diagnosed with [XXX]. He was affected by the medicine shortages in Venezuela, but he was able to access [XXX] in Carabobo State.

[9] In [XXX] 2017, national protests began to escalate. The National Guard invaded the San Diego neighbourhood where the four claimants were residing at the time. The son of the principal claimant was arrested, but his release was later secured by the principal claimant’s intervention. Her son fled to the United States of America in [XXX] 2017. In [XXX] 2018, the eldest female claimant was assaulted by colectivos, as she stood in line to buy food.

[10] The members of the colectivos specifically asked about the principal claimant. The principal claimant was herself subsequently refused food sales in [XXX] 2018, as the principal claimant did not possess a card which showed her chavista support.

[11] On [XXX] 2018, the eldest female claimant and the youngest female claimant departed Venezuela, and they entered the United States of America. On [XXX] 2018, the principal claimant and the male claimant departed Venezuela, and they entered the United States of America. The claimants crossed the land border into Canada on [XXX] 2018, and they each made their claims for protection.

DETERMINATION

[12] The panel finds that the principal claimant, the male claimant, and the eldest female claimant are each Convention refugees, pursuant to section 96 of the Immigration and Refugee Protection Act, based on their anti-government political opinion.

[13] The panel also finds that the youngest female claimant is a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, based on her imputed political opinion.

ANALYSIS

Identity

[14] The panel finds that each of the claimants has established their identity as a national of Venezuela, based on a balance of probabilities. Each claimant presented their Venezuela passport.^[5] The panel finds no reason to doubt the authenticity of any of these four documents.

Credibility

[15] The panel found the principal claimant and the eldest female claimant to be credible witnesses. Both the principal claimant and the eldest female claimant testified in straightforward manners, and there were no relevant inconsistencies in their oral testimony or contradictions between their oral testimony and the written submissions.

[16] The panel finds that the principal claimant coherently explained the involvement of herself, her husband, and her mother in the campaigns of opposition candidates, as well as the campaigns of Primero Justicia, since approximately 2010. Similarly, the panel finds that the eldest female claimant provided detailed and spontaneous testimony about her motivation to join Primero Justicia.

[17] The panel found that neither the principal claimant nor the eldest female claimant exaggerated or embellished their testimony, and they each provided spontaneous details about their own personal involvement in the anti-government rallies and marches in Venezuela.

[18] Despite the above, the panel finds that there were allegations presented for these claims that were not supported by the oral and written evidence. These allegations relate specifically to the male claimant being targeted in his medical care, namely having a [XXX] refused based on his anti-government involvement in Venezuela. The panel accepts that the male claimant has suffered long-term [XXX] (now diagnosed as end-stage [XXX]), and that these [XXX] challenges require regular and ongoing [XXX] and prescription treatments. Other diagnosed medical problems for the male claimant include [XXX] and [XXX].^[6]

[19] Although the panel finds that there was sufficient medical evidence presented to support the ongoing and long-term medical challenges for the male claimant, the panel notes that limited evidence was adduced to support that the male claimant faces a risk of harm in Venezuela, related to the authorities denying him any medical treatment that is available to other citizens of Venezuela.

[20] The male claimant testified that he attempted to obtain a [XXX] in both Italy and Venezuela. He was not successful in either country. The claimant further testified that he travelled to Caracas every two months, but that around 2015 or 2016, he was told that there was a general crisis in the health care industry, and that a [XXX] would not be available to him, due to lack of resources. The male claimant clarified in his testimony that he never received a phone call regarding the availability of a [XXX] to be [XXX] his body.

[21] This testimony from the male claimant is in contrast to the Basis of Claim Form narrative statements provided by the principal claimant regarding an urgent trip to Caracas by the male claimant and the eldest female claimant on [XXX] 2017. The narrative statements also indicated that there was a [XXX] available for [XXX] for the male claimant, but that the [XXX] was subsequently denied to him at the Caracas hospital.^[7]

[22] The panel carefully reviewed the presented post-hearing documentation related to possible side effects of four prescriptions taken by the male claimant,^[8] and the panel notes that for the past six months, family members of the male claimants have approached [XXX] of Hamilton, Ontario regarding declining [XXX] functioning, as well as increased [XXX], and increased [XXX] on the part of the male claimant.

[23] Based on the objective medical evidence presented the panel accepts that, on a balance of probabilities, the male claimant faced [XXX] challenges during his testimony at the hearing. The medical documentation in support of these [XXX] difficulties was not presented to the panel until after the date of the hearing, so the panel is left to balance the differences in the evidence presented, namely between the Basis of Claim Form narrative statements and the testimony of the male claimant.

[24] The panel finds insufficient reliable evidence was adduced to corroborate a specific targeting of the male claimant in Venezuela, based on his health conditions.

[25] Despite this negative credibility inference, the panel finds that the credible testimony of the principal claimant, in conjunction with the credible testimony of the eldest female claimant, and in consideration of the supporting documents presented, have cumulatively provided sufficient evidence that the principal claimant, the male claimant, and the eldest female claimant were each long-term members of the Primera Justicia political party, and that they actively and publicly participated in anti-government rallies and marches in support of high-profile opposition candidates over the past ten years.

[26] The credible evidence of the political participation overcomes the sole negative credibility inference.

Supporting Documents

[27] The claimants presented fifteen photographs regarding the involvement of the principal claimant, the male claimant, and the eldest female claimant in opposition rallies and marches in Venezuela.^[9] The panel finds that the principal claimant’s testimony provided spontaneous details about the background of these photographs, and as such added to the credibility of the claims made by the three eldest claimants.

[28] In support of their claims for protection, the claimants also presented copies of their Primera Justicia membership certificates,^[10] business registration documents for [XXX],^[11] and medical documentation related to serious injuries sustained at protest marches and rallies in Venezuela between [XXX] 2013 and [XXX] 2018.^[12] The panel finds no reason to doubt the authenticity of any of these documents. As such, they were assigned high probative value, based on their relevance to the allegations put forth by the claimants.

Subjective Fear Considerations

[29] The panel putto the claimants at the hearing some possible subjective fear considerations, namely their failure to claim asylum during their time in the United States of America, as well as the return of the principal claimant and the male claimant to Venezuela in the two years that lead up to their decision to depart Venezuela permanently.

[30] The male claimant testified that he travelled to Italy in [XXX] 2017, as he wanted to seek out the possibility of a [XXX] in that country. When it became obvious that to the male claimant that he would not receive a [XXX] in Italy, the male claimant returned to Venezuela.

[31] Although the panel assigned the male claimant’s testimony reduced probative value in relation to the cognitive impairments that he has faced over the past six months (as documented by medical professionals in Canada), the panel notes that this portion of the testimony is supported by passport entry stamps and exit stamps. In conjunction with the presented medical documentation regarding [XXX], the panel accepts the male claimant’s explanation regarding his trip to Italy as being reasonable, under the circumstances.

[32] The principal claimant provided Basis of Claim Form narrative statements which indicated that her visit to the United States of America in [XXX] 2018 was to care for her son, [XXX] as he was facing [XXX] health issues.^[13] The panel acknowledges that the principal claimant returned to Venezuela before her status in the United States of America expired.

[33] The principal claimant also testified that her son was a resident of the state of Wisconsin in [XXX] 2018. She was aware that [XXX] had made a claim for asylum one-and-a-half years prior to their arrival in [XXX] 2018, but her son had not received any response from the authorities of the United States of America, up until that point. The principal claimant further testified that she had a cousin in Canada, and that she preferred to make a claim for protection in Canada, based on what she had heard about the policies of the administration in the United States of America, especially as it related to Latin Americans (as immigrants). The panel finds these explanations to be reasonable, under the circumstances.

[34] As such, the panel did not draw any negative inferences from the failure to claim in the United States of America, or the returns to Venezuela by the principal claimant and the male claimant in the two years before their final departure from Venezuela.

Objective Basis of the Claim

[35] The panel finds that the overall objective evidence supports the claims for Convention refugee protection for the principal claimant, the male claimant, and the eldest female claimant, based on their anti-government political opinion. Separately, the panel also finds that the overall objective evidence supports the claim for Convention refugee protection for the youngest female claimant, based on her imputed political opinion.

Political Profile of the Three Eldest Claimants in Venezuela

[36] The panel considered whether there was a serious risk of persecution for the principal claimant, the male claimant, and the eldest female claimant in Venezuela, particularly based on their respective political profiles, pursuant to section 96 of the Immigration and Refugee Protection Act.

[37] The panel finds that the totality of the corroborating evidence enumerated above, in addition to the testimony of the principal claimant and the eldest female claimant, has provided sufficient evidence to support that the principal claimant, the male claimant, and the eldest female claimant have each been prominently involved in the opposition movement of Venezuela since at least 2010 (in the case of the principal claimant and the male claimant) and at least 2011 (in the case of the eldest female claimant).

[38] The panel further finds that, on a balance of probabilities, these prominent roles would reasonably lead to the principal claimant, the male claimant, and the eldest female claimant being associated with the opposition in Venezuela, in the eyes of government groups, and government operatives and agents. The panel accepts the testimony of the principal claimant and the eldest female claimant regarding the motivation of the persons threatening them (at political rallies and in line for food) as being directly related to their support of opposition candidates, and their support for the Primero Justicia political party.

Imputed Political Opinion of the Youngest Female Claimant

[39] Although the panel finds that the political profile of the youngest female claimant was not in itself enough to draw the attention of the authorities of Venezuela, the panel examined a possible imputed political profile for the youngest female claimant, as it related to her family relationships. The panel notes that the youngest female claimant is the adult daughter of the principal claimant and the male claimant, as well as the granddaughter of the eldest female claimant, and the younger sister of [XXX].^[14]

[40] The principal claimant testified that the youngest female claimant would be targeted upon a return to Venezuela, as the authorities specifically target family members of those individuals who are deemed to be against the government.

[41] Although [XXX] was not present at the hearing to provide testimony in support of any of the claims for protection, the panel finds that relevant portions of his Basis of Claim Form narrative^[15] were supported by the testimony of the principal claimant. The panel notes the authorities of Venezuela have previously attended the residence of the four claimants (including the youngest female claimant), in search of [XXX]. Should the youngest female claimant return to Venezuela, the panel accepts the testimony that she would be sought after in relation to her older brother, her parents, and her grandmother.

Recent Abuses at the Hands of the Security Forces and their Allies

[42] Abuses have increased in Venezuela, as security forces and allied armed civilian militias, also known as colectivos have been deployed to violently quash protests in February 2019, the Venezuelan Human Rights group Faro Penal documented seven deaths, 107 arbitrary detentions, and 58 bullet injuries that resulted from the use of force by state security forces and colectivos that blocked aid from entering the country.^[16]

[43] The most significant human rights issues in Venezuela included extrajudicial killings by security forces, including colectivos, torture by security forces, harsh and life-threatening prison conditions; and political prisoners. The government of Venezuela took no effective action to investigate officials who committed human rights abuses, and there was impunity for such abuses.^[17]

[44] The regime in Venezuela aggressively seeks to define national identity according to its own ideology. The opposition and anyone critical of the government are denied the status of citizen. The National Electoral Council is by no means impartial, and there are reasonable doubts as to whether the published results reflect voters’ preferences. After President Madura’s razor thin victory, the opposition presented over two hundred substantiated allegations of electoral rule violations. There is evidence of pressure on public employees to attend campaign rallies, and freedom of association and assembly is severely restricted in practice. The vast majority of judges hold provisional or temporary office, and the autonomy and impartiality of public prosecutors is seriously affected by improper interference by political actors.^[18]

Risk of Harm for All Four Claimants

[45] The panel finds that the claimants presented sufficient evidence in the written submissions and testimony to establish that the principal claimant, the male claimant, and the eldest female claimant were each specifically targeted by the actions of the chavistas, and later by the colectivos. The criminal acts included property damage, physical assaults, and threats to their lives. The panel also finds that the preponderance of the evidence points to the youngest female claimant, now an adult, would similarly be targeted based on a perceived anti-government political opinion (in relation to her parents, her older brother, and her maternal grandmother).

[46] The panel finds that all four claimants have established an objective basis for their respective claims, and that their fears are well-founded.

State Protection

[47] The claimants sought police protection in relation to the physical assault against the eldest female claimant, the threatening gesture, and the property damage that occurred in Carabobo State on [XXX] 2013. The principal claimant indicated in her Basis of Claim Form narrative that she was told by the police that it was best for her to leave things as they were, and that the police were only able to provide assistance to them if the motorcycle make, and the licence plate numbers, were known to her as a declarant.^[19]

[48] The panel finds that the lack of further attempts to seek redress with the authorities of Venezuela was reasonable, under the circumstances.

[49] Based on the venues and timings of the various threats from chavistas and colectivos on motorcycles, the panel accepts the threats of harm were directed at the principal claimant, the male claimant, and the eldest female claimant because they were actively supporting the opposition to the government of Venezuela.

[50] For more than a decade, political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’ power, including the prosecutor general and ombudsman, and electoral branches of government.^[20]

[51] There were continued reports of excessive use of force by security forces in Venezuela, particularly in the repression of protests over the lack of food and medicine. There were also reports from the Attorney General’s Office that groups of armed people with the support or acquiescence of the government carried out violent actions against demonstrators.^[21]

[52] Although the vast majority of colectivos are peaceful neighbourhood groups, the opposition accuses some of being violent paramilitary wings of the ruling Socialist Party, especially in urban areas. Motorized bands have less structure, but still receive full government support.^[22]

[53] In light of the above, the panel finds that those associated with the opposition in Venezuela are at risk of harm, and as such, it would be objectively unreasonable for any of the four claimants, in their particular set of circumstances, to seek redress or protection from the authorities in Venezuela. The documentary evidence in the National Documentation Package for Venezuela is both clear and convincing, and that it rebuts the presumption of adequate state protection for the four claimants in Venezuela.

Internal Flight Alternatives

[54] The panel considered possible internal flight alternatives for each of the four claimants in Venezuela. The state and their operatives are the agents of persecution for the four claimants. Given that the government controls the entire territory of Venezuela, and given that the colectivos operate across Venezuela, the panel finds that there is a serious possibility of persecution for each claimant throughout Venezuela, and therefore no viable internal flight alternatives exist for any of the four claimants in any part of Venezuela.

CONCLUSION

[55] For the foregoing reasons, the panel finds that there is a serious possibility that each of the four claimants face persecution in Venezuela, pursuant to section 96 of the Immigration and Refugee Protection Act.

[56] The panel concludes that the principal claimant, the male claimant, and the eldest female claimant are each Convention refugees based on their political opinion. In addition, the panel finds that the youngest female claimant is a Convention refugee based on her imputed political opinion.

[57] The panel therefore accepts all four claims.

^[1] X

^[2] X

^[3] X

^[4] X

^[5] Exhibit 1.

^[6] Exhibit 21 (post-hearing).

^[7] Exhibit 2.

^[8] Exhibit 20 (post-hearing).

^[9] Exhibit 17.

^[10] Exhibit 16.

^[11] Exhibit 16.

^[12] Exhibit 15.

^[13] Exhibit 2 and Exhibit 18.

^[14] Exhibit 2, Exhibit 3, Exhibit 4, and Exhibit 6.

^[15] Exhibit 6.

^[16] Exhibit 7, NDP for Venezuela (30 August 2019), item 1.4.

^[17] Exhibit 7, NDP for Venezuela (30 August 2019), item 2.1.

^[18] Exhibit 7, NDP for Venezuela (30 August 2019), item 4.12.

^[19] Exhibit 2 and Exhibit 18.

^[20] Exhibit 7, NDP for Venezuela (30 August 2019), item 2.1.

^[21] Exhibit 7, NDP for Venezuela (30 August 2019), item 2.2.

^[22] Exhibit 7, NDP for Venezuela (30 August 2019), item 4.12.

All Countries Jamaica

2020 RLLR 76

Citation: 2020 RLLR 76
Tribunal: Refugee Protection Division
Date of Decision: January 21, 2020
Panel: L. Bonhomme
Counsel for the Claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-28318
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000105-000109

DECISION

[1] MEMBER: Alright good morning we are back on the record after a break. I see that your witness is present would you like her to remain for the duration of the hearing? Okay.

[2] I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. This is the decision for [XXX]. You are claiming to be a citizen of Jamaica and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3] Given the nature of this claim I have taken into consideration the chair person’s guideline for proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression.

[4] You will receive an unedited transcript of this oral decision in the mail in approximately three weeks. Your counsel will also receive a copy and can answer any related questions you may have at that time.

DETERMINATION:

[5] Your claim is accepted. I find that you are a Convention refugee on the grounds of membership in a particular social group namely bisexual woman for the following reasons.

ALLEGATIONS:

[6] You allege that you are a citizen of Jamaica and that you are a bisexual woman who is believed to be a lesbian by your family and community in St. Catherine’s. You were pressured into entering into relationships with men in Jamaica including a marriage which did not last very long.

[7] You have been mistreated by family members and subject to threats and abusive language by the community as well as attempts on your life due to your perceived sexual orientation.

[8] You allege that if you return you will be harmed or killed. You allege that there is no state protection for you or an internal flight alternative.

IDENTITY:

[9] Your personal identity as a citizen of Jamaica has been established by your testimony and the supporting documents filed in the exhibits, particularly the certified true copy of your Jamaican passport and Canadian visa. I find that on a balance of probabilities you are who you say you are and that the country of reference is Jamaica.

NEXUS:

[10] I find that there is a link between what you fear and one of the five convention grounds namely membership in a particular social group, bisexual women and therefore I have only assessed the claim under Section 96.

CREDIBILITY:

[11] In terms of your general credibility I found you to be a credible witness and I therefore believe what you have alleged in your testimony and in your basis of claim form.

[12] You answered all questions put to in a forthright manner, without hesitation or embellishment. When you did not know the answer to a question you said so. You displayed what appeared to be genuine emotion regarding difficult experiences in your life related to your sexual orientation.

[13] For the most part your testimony was consistent with the allegations in your basis of claim form. I do find that there were some embellishment in your basis of claim form, for example when you described there to be many attempts on your life yet you were only able to describe two incidents in your testimony.

[14] Although there were also some inconsistencies between the forms, your basis of claim form and your testimony, I accept your explanation that they were mistakes and likely owing to your emotional state.

[15] You have provided the following documents to support your claim. Support letters from sister and mother confirming being aware of your sexual orientation and in the case of your mother of your mistreatment in Jamaica due to your perceived sexual orientation, a letter from the 519 centre in Toronto confirming your active involvement with the LGBTQ community in Toronto and the spousal sponsorship application made by your former same sex partner which was requested by the board and immediately forthcoming from you.

[16] Your current same sex partner [XXX](ph) attended the hearing today and testified as a witness at the request of the panel. For the most part you were both consistent with relevant details of your relationship. Although there were some discrepancies adequate explanations were provided.

[17] Based on of the above I believe on a balance of probabilities that you are a bisexual woman. believe that you have been in relationships with at least two women in Canada and that you were too fearful to act on your interest in women while in Jamaica.

[18] I believe that you were subject to harassment and threats in your community in Jamaica as a result of your suspected sexual orientation. I believe that you are fearful to return to Jamaica because you may be harmed or killed due to your sexual orientation.

[19] I therefore find that your subjective fear is established by your credible testimony, your witness’s credible testimony and by your corroborating documentation and I believe what you have alleged on a balance of probabilities.

[20] I also find based on a review of the national documentation package that your fear is objectively well founded.

[21] The documents including Item 6.1 through to 6.5 state that homosexual acts between males are criminalized in Jamaica, while the laws are not enforced and do not speak to acts between women the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities including lesbians.

[22] Some types of Jamaican music propagate homophobia and politicians and church leaders have made negative statements towards sexual minorities.

[23] Several sources including Articles submitted by your counsel report that sexual minorities are the target of violence including mob violence in Jamaica. Women believed to be lesbians are specifically targeted for corrective rape.

[24] Sources also report that police often fail to take action regarding incidents of violence directed at sexual minorities. In some cases police are the perpetrators. Sexual minorities are often reluctant to report incidents for fear of their well being and for fear they may be extorted based on their sexual identity. I find that you have a well founded fear of persecution in Jamaica.

STATE PROTECTION:

[25] States are presumed to be capable of protecting their own citizens except in situations where the state is in a state of complete breakdown. I find the objective documentary evidence I have already referred to, to be clear and convincing evidence to rebut the presumption of state protection.

[26] Not only do police often fail to take action regarding incidents of violence directed at sexual minorities but in some cases police are the perpetrators.

INTERNAL FLIGHT ALTERNATIVE:

[27] I have also considered whether a viable internal flight alternative exists for you. I find that there is no viable internal flight alternative available to you as the evidence indicates that there is a serious possibility of the persecution throughout the country. The climate of homophobia and violence exists throughout Jamaica.

CONCLUSION:

[28] Based on the totality of the evidence I find you to be a Convention refugee and I accept your claim. The hearing is now concluded.

[29] CLAIMANT: Thank you very much ma’am.

[30] MEMBER: Thank you for coming this morning and sharing your story, thank you ma’am for attending today and testifying as well. Counsel thank you for assistance. I am just returning the original documents to you right now. Thanks.

———- REASONS CONCLUDED ———-

All Countries Colombia

2020 RLLR 75

Citation: 2020 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: March 16, 2020
Panel: Shams Alidina
Counsel for the Claimant(s): Raoul Boulakia
Country: Colombia
RPD Number: TB8-24792
Associated RPD Number(s): TB8-24829, TB8-24828, TB8-24793, TB8-24803
ATIP Number: A-2021-00800
ATIP Pages: 000100-000104

DECISION

[1] MEMBER: Sir and madam, I have a decision for you, and these are my reasons for the decision.

[2] If you need the reasons, you can always ask the Refugee Board to give it to you.

[3] INTERPRETER: Excuse me, sir?

[4] MEMBER: If you need the reasons in writing, the Refugee Board can give it to you.

[5] [XXX], hereinafter “the claimant”, her husband, [XXX], and their children, [XXX] and [XXX], are citizens of Colombia claiming for refugee protection in Canada pursuant to sections 96, 97(l)(a), and 97(l)(b) of Immigration and Refugee Protection Act, IRPA.

[6] The claimant alleges that she was in a [XXX] called [XXX] that was involved in instructions in [XXX]. She had [XXX] in Bogotá, and she had a number of [XXX] belonging to her, her husband, and her daughter. Because of her profile, her office was contacted by the ELN guerrillas —

[7] INTERPRETER: By —

[8] MEMBER: By ELN guerrillas, asking for contribution to support their cause. Initially, the claimant did not provide any money to them, but after being targeted several times and fearing death, on one occasion she paid them [XXX] pesos. After the payment, she felt that ELN would stop the extortion, but the ELN did not. They continued extorting her, and finally they even targeted her daughter, who was abused physically and sexually by the ELN. And when the claimant returned to Bogotá, she was almost killed by them. Her driver was able to swing his car and was able to save her. She left Colombia despite her parents needing her, despite all the [XXX] she had, despite all the [XXX] she had, to come to Canada to seek protection.

Identity

[9] The claimant’s identity has been established to the satisfaction of the panel. In that the panel refers to Exhibit 1, where the panel sees the claimants’ passport copies, which indicate that all the claimants are citizens of Colombia. And the claimant testified that they do not have any status anywhere else. On a balance of probabilities, the panel finds that the claimants in this case are all citizens of Colombia.

[10] The determinative issues in this case are credibility and subjective fear. On that subject, the panel incorporates Counsel’s submissions in its decision regarding subjective fear. The claimant and her daughter were very emotional. Their demeanour clearly indicated their fear of the ELN guerrillas.

[11] Based on the evidence, which is supported by documentary evidence in Exhibit 4, the panel finds that the claimant and her husband were reasonably [XXX] people. The claimant had [XXX] of [XXX], while her husband had one, which he [XXX] prior to coming to Canada. They have several [XXX] and [XXX]. The claimant testified that she created an [XXX] for her family. She loved her country. Her parents are vulnerable — they’re still there — but her daughter has been stigmatized by what happened to her. The claimant indicated on several occasions that it was a big mistake on her part to have not left Colombia earlier, and had returned, after coming to Canada, back to Colombia. She testified that she had apologized to her family for doing what she did. And while she was in Colombia, she had a bodyguard.

[12] INTERPRETER: She had —

[13] MEMBER: Bodyguard, and a bulletproof vehicle for safety of her whole family. Her bodyguard was an [XXX], who finally told her to flee from Colombia if she wanted to save her life and lives of her family. On one occasion, the claimant testified that she had to return to Colombia because of the [XXX] situation of her son, and she provided documentary evidence to support that.

[14] Therefore, based on the evidence provided by the claimant as well as Counsel, the panel is satisfied that the claimant had to return to Colombia, but despite of all the [XXX] she had, she could not get any police protection. She went to Fiscalía on more than one occasion. Even after her laptop was stolen — and Counsel showed the panel the little video of that stealing — the Fiscalía could not do anything for her, and she testified she had no other alternative but to come to Canada to seek protection.

[15] The panel finds, based on what Counsel submitted and the claimant testified, that the claimant’s explanation about subjective fear is satisfactory. In this case, the agents of persecution are the ELN guerrillas. Given the amount of [XXX] she had, it is plausible that the ELN would be motivated to seek extortion from her.

[16] Insofar as credibility is concerned, the claimant was reasonably credible witness. There were some minor credibility issues, which were explained by the claimant, her daughter, and Counsel in his submissions to the satisfaction of the panel. The panel gives the benefit of doubt in this case to the claimants and accepts their story in support of the claim. This is a well-documented claim, in that it contains support documents for everything the claimant indicated, including [XXX] that she [XXX], the visits to Fiscalía, and not obtaining protection from the authorities.

[17] In regards to IFA, because ELN is present everywhere, the panel does not find that the claimants would have a viable internal flight alternative in Cartagena.

[18] And the claimant’s testimony is supported by the documentary evidence before the panel, and the panel is referring to the country conditions provided by Counsel as well as the IRB. The DOS report indicates that the most significant human rights issues included extrajudicial and unlawful killings. Reports —

[19] INTERPRETER: Extrajudicial and —

[20] MEMBER: Extrajudicial killings. The reports of torture and arbitrary detention, corruption, rape, and abuse of women and children by illegal armed groups. The panel will refer to other documentary evidence the details, that is Response to Information Request COL-106085.E. I think they know what I’m saying. And the document indicates that ELN is a leftist armed group. The ELN was involved in peace negotiations with the government, but because the ELN continued attacks, those peace negotiations were terminated, and because ELN was involved with the government in peace negotiations, and the claimant’s non-payment of Vacuna (ph) —

[21] INTERPRETER: And the claimant’s –

[22] MEMBER: Of Vacuna.

[23] COUNSEL: Vacuna, extortion.

[24] MEMBER: Extortion.

[25] INTERPRETER: Okay, okay.

[26] MEMBER: Made them an enemy of the ELN. The ELN felt that they had an opinion against the ELN for not supporting their cause, and because ELN participated in peace talks with the government of Colombia, it is regarded as a component of state machinery, and an opinion against the component of the state machinery amounts to imputed political opinion against the state machinery. And therefore, the claimants have established a nexus to the Convention ground today. The report indicates that there were 2,500 combatants in the ELN force, and the ELN operates using columns, which were called war fronts. The same document indicates that ELN retains an active presence in the country. Insofar as the activities are concerned, the same document indicates that ELN is involved in kidnapping, launching bomb attacks against police officers, attacking government targets —

[27] INTERPRETER: Attacking —

[28] MEMBER: Government targets, attacking economic infrastructure, recruiting children, using antipersonnel land mines, displacing civilians, and killing them. The same document indicates that there’s a strong incursion of the ELN in many, many areas around the country. In the first ten months of 2017, the ELN was responsible for 45 percent of the total mass displacement of people. ELN is amongst the organized armed groups that are taking advantage of the weakness of the state’s presence in the areas where the former FARC had influence. At this time, ELN has expanded its role in the drug trade after the demobilization of the FARC guerrillas. The same document indicates that it is possible that the ELN can monitor or target across Colombia.

[29] In regards to protection, the same document indicates that state protection available to victims of ELN was scarce, that the protection measures for people who are victims of ELN are very limited. For victims who, given their positions or their activities, may be subjected to extraordinary or extreme risk, the DOS indicates that the ELN is involved in unlawful killings, political killings, extortion, kidnapping, et cetera. [inaudible] of the evidence that is before the panel, the panel finds that the ELN is a strong leftist guerrilla group operating all over Colombia. In this case, the claimant being a wealthy person —

[30] INTERPRETER: In this case —

[31] MEMBER: A [XXX] person, did not support their cause. She became the enemy of the ELN. They targeted to kill her at one point, but she was able to escape because her driver was able to escape from the scene. They targeted her daughter —

[32] INTERPRETER: They —

[33] MEMBER: Targeted her daughter. They not only beat her up, they raped her. She testified that they had ruined her life.

[34] INTERPRETER: That they had —

[35] MEMBER: Ruined her life. Based on the totality of the evidence adduced and the country conditions, and the documentary evidence claimant provided to support her claim, panel finds that there is a serious possibility that the claimant and her children would be targeted and seriously harmed for not supporting ELN cause. And therefore, for all above reasons, the Refugee Protection Division determines that [XXX] is a Convention refugee. Because her husband’s and her children’s claims are based on her claim, their claims must succeed, too. As a result, the Refugee Protection Division determines that [XXX] and [XXX] are also Convention refugees.

[36] Signed by Shams Alidina, Member of Refugee Protection Division, on 16th March 2020.

[37] I wish to thank madam, your husband, and your children for coming today. I wish to thank Counsel for coming, and I wish to thank Counsel for providing a lot of documentary evidence. I wish to thank the interpreter for doing a fantastic job.

[38] The hearing is over.

[39] Now, madam — sorry, Counsel, I had to [inaudible]

[40] COUNSEL: [inaudible]

[41] MEMBER: I say that most of the times to Colombians.

——————-REASONS CONCLUDED——————-