Categories
All Countries Rwanda

2020 RLLR 48

Citation: 2020 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: Nick Bower
Counsel for the Claimant(s): N/A
Country: Rwanda
RPD Number: VB9-00586
ATIP Number: A-2021-00655
ATIP Pages: 000119-000127


— DECISION

[1]       PRESIDING MEMBER: These are my reasons for a decision in the claim for protection for [XXX], a citizen of Rwanda who seeks protection under the Immigration and Refugee Protection Act as a Convention refugee pursuant to section 96 and a person in need of protection, pursuant to section 97.

[2]       I’ve considered your testimony and all of the other evidence before me today. I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. As a preliminary matter you applied for late disclosure of a document, your employment contract, it’s relevant, probative, one relatively brief document which I was able to review completely before the hearing, it’s late admission does not prejudice any party and you provided a, I find, reasonable explanation for the late disclosure. Considering all of the relevant factors I accepted the document into evidence and added it to the list of documents as Exhibit 5.

ALLEGATIONS

[3]       Very briefly, you allege the following. When you were young, about [XXX], you got a job as a [XXX] at a law firm to help pay for your university. You worked there as a [XXX]

[4]       The firm employed two drivers on staff, the drivers were there to drive partners, associates and sometimes yourself when needed for work. One of the drivers was a man named [XXX]. He drove you sometimes including giving you rides sometimes to your university where you took classes in the evening after working a full workday at the law firm.

[5]       On one occasion, [XXX] drove you to his home and sexually assaulted you after drugging you. When he was finished, he threatened you and told you that if you told anyone, if his wife and family found out he would kill you.

[6]       You went to the hospital, you were examined, you went to the police and reported the sexual assault. The police said they would get back to you if things progressed. You waited 11 months without hearing anything from the police. And from what you know from hearing about other women it’s happened to, that’s not unusual.

[7]       You did not tell anyone at your work, and you were afraid. You have not told your family. You did tell some of your friends at university, they told you that they had heard from [XXX] who he knew from dropping you off at the university that you had initiated a sexual encounter. They blamed you and insulted you calling you a slut.

[8]       You have seen [XXX] just on the road outside of work, although you actively avoided contact with him on that occasion. You fear that if you were to return to Rwanda [XXX] could carry out his threat to kill you if his wife or family finds out.

[9]       After the sexual assault, you noted that you have been not just uncomfortable around men, but you have actively avoided being in the company of men. And comparing your experiences around men in Rwanda after the sexual assault to your experiences around men in Canada, even in Canada you are not comfortable or able to internet comfortably with men.

[10]     You fear that if you were to return to Rwanda, you might be sexually assaulted again. You don’t know much about [XXX]; you don’t know anything about his family. You only know him through work.

DETERMINATION

[11]     I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[12]     I find that you are a citizen of Rwanda, you’ve provided in Exhibit 1 a copy of your current Rwandan passport with the still-valid multi-entry Canadian visa that you used to enter Canada.

Credibility

[13]     I find that you are a credible witness and I accept your allegations. You’ve testified in a responsive, meaningful and spontaneous manner. You have not taken opportunities to tailor or to exaggerate your evidence. Your evidence is consistent with the other evidence before me.

[14]     You have provided some documents to corroborate your allegations, in particular, you’ve provided a copy of your employment contract corroborating your work with the Lawfirm. You’ve also provided a copy of the medical report from the hospital following your complaint. The report is consistent with a complaint and investigation resulting from a sexual assault.

[15]     I note that a recent Federal Court decision, Volasko Chavaro (phonetic) -v- Canada [2020]

[16]     FC310 speaks to the issue of the delay in filing a refugee claim after arriving in Canada. The court finds, and I agree, that any finding on credibility based only on that delay in cases of sexual assault relies on,

“The discredited and stereotypical myth that all women who are victims of sexual assault react in the same manner and will report a sexual assault in a timely manner. This is an ancient but rejected stereotypical myth about victims of sexual assault known as the Doctrine of Recent Complaint. For the reasons that follow, I find this Doctrine should form no part of Canada’s Immigration Law. The Doctrine of Recent Complaint was thoroughly discredited decades ago because it is demonstrably false and because it is sexist being almost universally applied against female victims of sexual violence. It has been rejected by both the courts and Parliament in the context of criminal law. It has been denounced by this court in the immigration context”.

[17]     The decision goes on to state that it should not be applied in a refugee context as a way to find a claimant uncredible simply because, in a case of sexual assault, it took a period of time to gather the courage to come forward to seek protection.

Nexus

[18]     I find that there is a nexus between the persecution alleged and the Convention ground of membership in a particular social group as a woman whose a victim of gender-based violence or GBV.

[19]     At tab 5.3 is a report by the United Nations Committee on the Elimination of Discrimination Against Women. That report states,

“The Committee welcomes the awareness-raising measures taken by the State party (meaning Rwanda’s Government) to address discriminatory stereotypes about the roles and responsibilities of women and men in the family and in society. However, the Committee is concerned that those measures insufficiently tackle the prevalence of deep-rooted patriarchal attitudes and stereotypes that give a higher status to men and boys and the resulting subordination of women and girls, which undermines their social status, autonomy, educational opportunities and professional careers, as well as constitutes a underlying cause of gender-based violence against women”.

[20]     Women are seen in Rwanda as a group, as a particular group, based on their gender and subject to, as the report states, deep-rooted patriarchal attitudes which not only hinder their lives in a variety of aspects, but also leave women particularly vulnerable to violence as gender-based violence.

Well-founded Fear of Persecution

[21]     You have testified that you fear persecution if you return to Rwanda. I accept your testimony and so I accept that you do have a subjective fear of persecution.

[22]     Considering all of the evidence before me in this particular case, I find that your subjective fear is objectively well-founded.

[23]     I am satisfied, considering all of the evidence before me in this claim, that you would face a serious risk of persecution as a woman if you were to return to Rwanda.

[24]     I do not find that that serious risk of persecution is specific to Isaac. Considering all of the evidence, including the documentary evidence, I find that the serious risk is from men in Rwandan society in general, not tied to one particular man.

[25]     Returning to the United Nations Committee Report at tab 5.3, the report states,

“The Committee appreciates the measures taken by the State party to eliminate gender-based violence against women and provide assistance to victims, including the adoption of the National Policy Against Gender-Based Violence and a corresponding strategic plan and the establishment of the Asanji (phonetic) One-Stop Centres Anti-Gender-Based Violence Clubs in schools that involve both girls and boys and gender desks in the Rwandan National Police and the Rwanda Defence Force. The Committee notes with concern, however, that the number of women who are victims of gender-based violence including sexual violence is particularly high in the State party. It is further concerned that (a) gender-based violence against women is widely accepted by society, a situation that is exacerbated by the common perception that the traditional patriarchal system is under threat and younger men are inclined to consider that it is justified to beat their wives; (b) gender-based violence against women is largely under-reported because of the victims fear of stigma, retaliation and women’s economic dependence on the perpetrator as well as their lack of awareness of their rights and how to claim them, and continues; (f) the resources allocated to the provision of medical, psychological and legal assistance to victims are insufficient”.

[26]     At tab 2.5 is a report by the National Commission for Human Rights. That report specifically states that women and daughters with mental-illness are victims of gender-based violence such as sexual abuse.

[27]     At tab 5.6 is a report from Rwanda’s National Institute of Statistics on Gender Statistics. That report finds that 14-percent of women aged 15 to 49-years-old experienced physical violence within the 12 months proceeding the report. And 35 experienced physical violence since the age of 15.

[28]     Statistically, according to the report, 22-percent, or more than one in five women, have experienced sexual violence since the age of 15, and eight percent, or almost one in 10, experienced sexual violence within the 12 months proceeding the date of the report.

[29]     Of those women the proportion of women subjected to sexual violence by persons other than an intimate partner was 60.9, a significant amount of sexual violence against women in Rwanda comes from non-intimate partners, either friends, associates or strangers.

[30]     Putting this all together, as noted by the United Nations and by Rwanda’s own statistics, gender-based violence, including sexual assault against women in Rwanda is frequent and as noted occurs with general impunity. It is under-reported and despite the Government’s show of action in passing laws and establishing programs and centres to assist women, many of these programs that would provide assistance to vulnerable women in need are underfunded and underutilized. In particular, women who are otherwise vulnerable, such as women with mental-health issues, have a greater risk of experiencing gender-based violence.

[31]     There’s no evidence before me, there’s no documentation that you suffer a diagnosed mental­ health condition. However, you’ve testified, and I accept that since the sexual assault, understandably, you are afraid around men and you avoid socially interacting with men. That will, I find, mark you as someone vulnerable. You are still very young; you have never lived independently. You’ve had one job and– one job in Rwanda, and you were sexually assaulted within months of beginning that work.

[32]     You are — you’re a very intelligent young woman, but you are still quite young, you haven’t completed a university degree; you haven’t lived independently. All of these factors make you vulnerable and increase your risk of further gender-based violence if you were to return.

[33]     Your experiences are consistent with the documentary evidence. Gender-based violence remains under reported and the laws prohibiting rape, sexual assault, work-place harassment, are not effectively enforced.

[34]     You, yourself, experienced a stigma, not even from the sexual assaulter and his peer group, but from your own peer group following the sexual assault because they took the word of your rapist over your own word, the word of their friend. They took the word of a man they didn’t know that well over the word of a woman with whom they’ve been friends and classmates.

[35]     Considering all of the evidence before me in this particular claim, in particular the high, as stated, particularly high pervasive rate of gender-based violence in Rwanda. The lack of effective protection from the State in large part due to entrenched patriarchal attitudes that justify gender-based violence against women. And your particular characteristics as a young woman who has already experienced not just gender-based violence, not just a sexual assault, but also the stigma, harassment and exclusion from your friends following that assault.

[36]     You haven’t told your family and you don’t want to move away from them because they would ask why, because you’re afraid of your family’s reaction.

[37]     Considering all of the evidence before me, I find that you do face a serious risk of persecution because of your gender if you were to return to Rwanda. That persecution might take the place — might take the form of another sexual assault. It might result, it might simply be constant, ongoing harassment and discrimination amounting to persecution.

[38]     At tab 5.1 — sorry, 5.4, is a report from the Organization for Economic Cooperation and Development on Rwanda, Social Institutions and Gender Index for 2019 which makes clear that, despite Rwanda’s laws promoting gender equality, women are still subject to pervasive discrimination at home, at work, economically and at law. Not under the law, but when trying to access the protection of the law. This discrimination may certainly amount to persecution, particularly when it’s combined with your individual factors as a young, dependent women, already the victim once of gender-based violence.

State Protection

[39]     I find that adequate State protection would not be reasonably forthcoming. You have rebutted, in this case, the presumption of State protection.

[40]     You testified and I accept that you went to the police, they were dismissive and over a year, possibly more, the police took no action that you could see. There’s no reason to expect that they have done more since. You were there, you were available. The criminal, the man who sexually assaulted you was there, the police could have investigated, nothing has happened.

[41]     That is not inconsistent with the documentary evidence. Going back to the report at tab 5.4 the OECD states,

“Despite these efforts GBV remains pervasive as it was widely accepted by the society as a result of entrenched traditional patriarchal norms. Although reporting rates for GBV cases have increased as a result of the Government’s prevention and protection efforts, it remains under-reported due to victim’s fear of stigma, retaliation and women’s economic dependence on the perpetrator.

[42]     It goes on to state,

While the MAJ’s (Access to Justice Bureaus) provide a system of legal aid, there are no legal aid schemes for women that address their specific barriers in access to justice, including lack of economic independence and sociocultural norms that constrain them from filing a GBV or land-inheritance claims. The Government has identified lack of information about the legal system as a key constraint as women’s access to justice”.

[43]     Taking that into account, the Government has specifically identified lack of information as a key constraint on women’s access to justice. However, as the U.N. report at tab 5.3 notes, a particular reason for concern about ongoing risk faced by women in Rwanda is that the resources allocated to the provision of medical, psychological and legal assistance to victims of gender-based violence are insufficient.

[44]     Gender-based violence remains particularly high, in the words of the U.N., in Rwanda. It remains under-reported despite the Government’s efforts. And as you experienced and as you’ve seen in other cases, even when reported it does not necessarily lead to — it does not reliably lead to enforcement of those laws and consequences for the perpetrator of gender­ based violence.

[45]     So considering all of the information before me in this claim, I’m satisfied you would not receive adequate State protection if you were to return to Rwanda.

Internal Flight Alternative

[46]     I find you do not have a viable internal flight alternative. I find that you would face a serious risk of persecution throughout Rwanda.

[47]     The factors that we’ve discussed so far, the laws and the enforcement of the law, social attitudes and the prevalence of gender-based violence are not specific to Kigali, those are the general conditions that exist throughout Rwanda. If anything, one might expect that you would receive better assistance and better treatment in Kigali, the capital of the country and the largest city, the most metropolitan city, the centre of the Government. You’ve lived in Kigali all your life and this is what happened. There’s no reason to expect that conditions would be better in any other particular part of the country.

[48]     Also, if you were to relocate from Kigali, you would be even more vulnerable. You’ve never lived outside Kigali; you’ve never lived away from your parents. You have contact with some people in other cities, but it’s limited distant contact. For example, you were in contact with an uncle whose passed away. If you were to relocate, you would face an even greater risk of persecution because you would be perceived as, and you would be, even more vulnerable.

[49]     In conclusion, for these reasons, considering all of the evidence before me in this claim, I find you would face a serious risk of persecution because of your membership in a particular social group, as a woman, a victim of gender-based violence, if you were to return to Rwanda. You have a subjective fear of persecution that is objectively well-founded. You would not receive adequate State protection and you do not have a viable internal flight alternative.

[50]     For these reasons, I accept your claim.

[51]     So that concludes my reasons for the decision. Thank you for your patience through this process and thank you for being here today.

[52]     Counsel, thank you very much for your presentation. And I wish you the best of luck in the future.

[53]     CLAIMANT: Thank you. I would like to thank you and appreciate everything. I really appreciate with that understanding and belief, it’s very special.

[54]     PRESIDING MEMBER: It’s simply the hearing that you are entitled to under the laws of Canada. So, thank the law, but thank you.

— DECISION CONCLUDED

Categories
All Countries Lebanon

2020 RLLR 47

Citation: 2020 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: M. Dookun
Counsel for the Claimant(s): Amro Hayek
Country: Lebanon
RPD Number: TB9-25948
Associated RPD Numbers: TB9-25981, TB9-26023
ATIP Number: A-2021-00655
ATIP Pages: 000115-000118


DECISION

[1]       MEMBER: Based on the information that I have in front of me folks, you Sir, are a [XXX] male. You’re a Stateless Palestinian with a Lebanese travel document. Your wife is a [XXX] female. She’s also a Stateless Palestinian with this-, but she has an Egyptian travel document and the minor claimant is a [XXX]-male and he is also a Stateless Palestinian and he also, like you Sir, has a Lebanese travel document. You are all seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. You Ma’am, served as the designated representative for the minor claimant. I’ll go slower Mr. Interpreter, it looks like you’re having trouble hearing me. I can’t hear you but it looks like you’re having trouble so I’ll go slower.

[2]       Now, the specific details of your claims are set out in your Basis of Claim form, Sir. If I were to simplify what is already in your Basis of Claim form, I would say Sir, that you and the minor claimant fear persecution in Lebanon based on your nationality as Palestinians. You Sir, also fear harm at the hands of Hizballah and I’m going to spell that for the record because this is going to be transcribed. H-I-Z-B-A-L­ L-A-H, because they threatened you in Lebanon in 2011. You feared that they would harm you and harm the minor child out of revenge in-, in order to hurt you. Your wife fears that she-, number one, she would not be allowed to enter Egypt and if she did, then she would face difficulties in Egypt due to her ethnicity as Palestinian as well as other reasons. So, the Panel determines folks, that you are all Convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act.

[3]       Now, with regard to your identities, you established all of your identities by way of these certified true copies of your travel documents that I have in Exhibit 1 and you also provided birth certificates for me in Exhibit 5, so I have no concerns with regard to your personal identities.

[4]       Now, with regard to credibility, Ma’am, you-, you didn’t always testify in a straightforward manner. The Panel finds that you did exaggerate your testimony a little bit, especially when, regarding the difficulties in renewing your Egyptian travel document, you described an example of your father getting a number for the que at-, at 3am and that by the time you arrived at 9 am, you weren’t seen because that number had passed. That’s not-, the Panel does not see that as mistreatment per say. If a system is in place where one takes a number and waits for that number to be called and one is not there when the number is called, it’ s not unreasonable that an organization would not take you after that point. It happens even here in Canada at the passport office so, I didn’t-, I-, I felt that you did exaggerate a little bit.

[5]       So, I switched with you and I had your husband testify instead and I find Sir, that you did testify in a very straightforward manner. For example, when you were asked if you had any problems in Lebanon before 2011, you very directly, well, initially, you very directly answered no, you did not have any problems. You did not try to embellish or exaggerate your testimony at that point, which the Panel very much appreciated. Now, e-, even though it seemed later that you changed your testimony to indicate that you did experience problems in Lebanon, the Panel does not draw a negative inference and I’ll tell you why. The first time I asked you, it was suggested that you were being asked whether you had problems with Hizballah before 2011 and you said directly, no. The que-, the second time I asked you, the question was very specific and I said, did you have problems in Lebanon because of your Palestinian nationality. Y-, that’s when you said yes, you did have problems but then you explained that the problems that you experienced as a Palestinian in Lebanon, those problems were so common that you-, you got used to it. You tolerated it, so you didn’t really consider it to be a problem. It was life for you as a Palestinian in Lebanon so I don’t draw a negative inference with regard to the-, the slight change in what might appear to be the slight change in testimony.

[6]       When I asked you whether you-, what the fear was that you had for the minor claimant, you said that you only fear Hizballah and you didn’t mention a fear of persecution by society because of the-, the child’s Palestinian identity. Again, the Panel appreciates that you did not embellish or exaggerate your fear for the minor claimant. So, taking both testimonies into account, the Panel finds that there were no serious contradictions or inconsistencies contained within your testimonies and so the Panel has no serious reason to doubt that your affirmed testimony this afternoon, even though at times exaggerated, for the most part was truthful.

[7]       Now, with regard to the-, the country conditions, I’ll start with Lebanon because that’s the most straightforward for the Panel. The documentary evidence that I have in Exhibit 3 and counsel’s package in Exhibit 5, regarding the situation for Stateless Palestinians in Lebanon. It’ s very clear, it’ s very-, the-, the documentary evidence is very voluminous that Stateless Palestinians face widespread violence, harassment and discrimination that amounts to persecution in Lebanon. Aside from the problems that you’re facing with the Hizballah supporters, even if I don’t take that-, those problems into account, just being a Palestinian in Lebanon is enough Sir, that you and the child would face serious problems. When we combine that with the problems that-, and the threats that you have received from Hizballah supporters, it only increases your risk in Lebanon.

[8]       Now, with regard to Egypt, with counsel-, counsel’s-, with counsel’s guidance, we focused on Exhibit 3, Item 3.4 and that talks about the fact that there are hundreds if not thousands of cases in which Palestinian­ Palestinians with Egyptian travel documents are denied re-entry for various reasons. Palestinians may face detention at the border in Egypt, imprisonment upon arrival or deportation. So that affirms or confirms the female claimant’s fear that she would not even be able to enter Egypt. Now, if she were able to enter Egypt, this same document goes onto say that Palestinians in Egypt are denied rights to secure residency, employment, property and they are considered foreigners in Egypt no matter how long they have lived there. Egyptian laws do not allow foreigners which Palestinians are considered, to exceed 10% of employees in the labour force, so this limits the employment opportunities for Palestinians and then to add to this, as the female claimant indicated, she’s never been to Egypt. She has no friends, she has no family, she has no support in that country and tho-, therefore she would-, she would be and feel even more out of place than Palestinians who have been residing in Egypt.

[9]       So, to conclude, the Panel finds on a balance of probabilities, based on the documentary evidence that the principal claimant and the minor claimant have a well-founded fear of persecution in Lebanon based on their ethnicities. And the female claimant has a well-founded fear of persecution in Egypt, based on her ethnicity. I should just mention for the record, although it’ s-, it’ s-, it’s implied or it’s well known, I should mention that even though they were born, they were all born in Saudi Arabia, they clearly have no rights to remain or return to Saudi Arabia. So, the Panel finds that the claimants are all Convention refugees pursuant to Section 96 of the Immigration and Refugee Protection Act. The Refugee Protection Division accepts these claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 46

Citation: 2020 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: August 11, 2020
Panel: Zhanna Perhan
Counsel for the Claimant(s): Justo Vega Castro
Country: Colombia
RPD Number: TB9-19730
ATIP Number: A-2021-00655
ATIP Pages: 000111-000114


DECISION

[1]       MEMBER: This is the decision for [XXX], TB9-19730. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally.

[2]       You claim to be a citizen of Colombia and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a person in need of protection as your return to Colombia would subject you personally to a risk to your life for the following reasons.

[4]       The allegations of your claim can be found in your Basis of Claim form in Exhibit 2. In short, you allege the risk to your life at the hands of the criminal organization, in particular, Clan del Golfo or Golf Clan who have threatened to kill you unless you agree to collaborate with their security plan in Colombia through regular extortions.

[5]       Your personal identity as a citizen of Colombia has been established on a balance of probabilities by your testimony and the supporting documents in Exhibit 1, namely, copies of your passport and your national identity card.

[6]       With respect to the Nexus to the Convention, there is insufficient evidence that you were targeted for Convention grounds for race, religion, nationality, political opinion or membership in particular social group so the claim is being examined under Section 97.

[7]       In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you have alleged in your testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without embellishment. There were no major inconsistencies that went to the core of the claim that were not reasonably explained. You described how the threats from Clan del Golfo began in [XXX] 2019 when you were intercepted by a truck or a van and a motorcycle, threatened and demanded to pay extortions. You did not-, you were later in [XXX] 2019 supplied with instructions on when, where and how to bring the money and you did not comply with the demands, hoping for police protection. You relocated to Bogota to escape the criminals. When you retuned after almost two months, somebody broke into your home at the end of [XXX] 2019.

[8]       You left for Bogota again, lost hope for protection measures and because you had a tourist visa to Canada, you decided to leave Colombia as fast as you reasonably could and you flew to [XXX] 2019. Overall, your testimony was spontaneous including being able to provide details about your professional activities as a cattle farmer, an entrepreneur as well as the details of the threats and seeking protection from the authorities. You filed the denunciation, asked for protection. You turned to the army for additional protection, but you were only given recommendations and nothing else.

[9]       In particular, I noted substantial documentary evidence that you presented, particularly, in Exhibit 6 which corroborates your personal and professional identity as well as the details of the threats and attacks, paperwork and supporting letters confirming your professional activities as a cattle farmer, entrepreneur. Also supporting letters from family members who confirmed you were a victim of extortions and threats. Moreover, there are copies of denunciations made at Attorney General and copies of protection measures and crime reports, however, one of them, Exhibit 5 reports that you were first threatened by Golf Clan in 2013. When I asked you to explain why this information was omitted from your Basis of Claim form, you said, in 2013, it was a closed case. You didn’t lose any money [XXX]. In addition, the perpetrators back in 2013 were never identified as Clan del Golfo. The protection unit that took care of that case said that it was simply a paramilitary or a criminal group. That is why you did not mention it in your Basis of Claim form.

[10]     I find that explanation reasonable and it does not undermine your credibility. I find your testimony was consistent in content and chronology without the documents provided that were central to your claim and I find you are credible and I accept your allegations as identified in your written and oral testimony.

 [11]    I find that you would be subjected to a greater personalized risk compared to the general population in Colombia. Your professional activities as a [XXX] make you more affluent and thus easily targeted by the gangs for extortions. In addition, due to the nature of your professional activities, you’re well known in the community, hence, it made yourself open to public and easy to locate. I find on a balance of probabilities that you have established the personalized risk to your life that goes beyond the generalized risk in Colombia. Moreover, taking into account the past persecution at the hands of Clan del Golfo, I find you have established strong likelihood of harm in the future.

[12]     To just briefly comment on State protection and internal flight alternative. I find for two reasons that you have rebutted the presumptions of State protection and demonstrated there is no viable internal flight alternative. Firstly, you have provided credible evidence that you relocated, and you went into hiding in Bogota. You provided evidence that you approached the authorities for assistance and you applied for protective measures, but no adequate protection was provided. Due to the threats from Clan del Golfo that continued in spite of the complaints and recommendations from the police, you decided it was unsafe to remain in Colombia especially because no protection was forthcoming.

[13]     Secondly, I have reviewed the country condition evidence as reflected in National Documentation Package. Items 1.2 and 1.7 as well as the documents provided by the counsel on your behalf. Specifically, in Exhibit 5. The documents illustrate that while Colombia has made efforts to improve State protection, its ability to do so is severely limited due to a lack of presence and capacity in many areas of the country that have been recently vacated by FARC as well as significant issues of corruption and complicity by local offi-, officials. National Documentation Package, Item 7.2 reports that Clan del Golfo has succeeded in infiltrating divisions of the armed forces and the justice system. This narco-parla-, paramilitary group has infiltrated official institutions, forged alliances with public servants including armed forces, police, Attorney General and local governments officials so it would be the protection in my opinion would not be forthcoming in your particular circumstances. The preponderance of documentary evidence is clear and convincing in that.

[14]     In addition, I find you would be unable to safely relocate to any other parts of Colombia and that you fa-, face risk throughout that country at the hands of Golf Clan. Peace and Reconciliation Foundation reports in Item 7.2 in NDP and Exhibit 5 news articles provided by the counsel in particular, Colombia reports, news Latin America and Revista Semana ail confirm that Clan-, Golf Clan or Clan del Golfo also known as Urabenos or Clan Usuga or Autodefensas Gaitanistas de Colombia or AGC. They’re currently the largest criminal gang operating in Colombia. It had grown to include more than 8000 members, including informants. It has also become the largest and most powerful self American narco poster. Clan del Golfo has a presence in 279 municipalities in 27 departments, that’s NDP Item 7.2.

[15]     Clan del Golfo has made alliances with smaller groups and gangs throughout Colombia. They have a national reach and an ability to operate across the country. According to Human Rights Watch, there have been documented cases of persons being tracked down by the Cla-, Golf Clan after fleeing to other parts of the country and that’s in Item 7.15 on page 20. I find that Clan del Golfo has taken sustained efforts to locate you and having determined on a balance of probabilities that you are a credible witness, I am satisfied that this group has both the means and the motivation to locate you anywhere you go in Colombia. Therefore, on the evidence before me and based on your particular circumstances, I find that on a balance of probabilities you face risk to your life by the Clan del Golfo anywhere in Colombia and there is no viable internal flight alternative for you.

[16]     So, for all these reasons above, I find that you face risk to your life if you return to Colombia and accordingly I find you to be a persan in need of protection pursuant to Section 97(1)b of Immigration and Refugee Protection Act. Therefore, I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Hong Kong

2020 RLLR 45

Citation: 2020 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: October 8, 2020
Panel: Avril Cardoso
Counsel for the Claimant(s): Evan Andrew Karmazyn
Country: Hong Kong
RPD Number: TB9-15472
ATIP Number: A-2021-00655
ATIP Pages: 000106-000110


DECISION

[1]       MEMBER: This is the decision for [XXX]. You are claiming to be a citizen of Hong Kong Special Administrative Region Peoples Republic of China. And you’re claiming refugee protection pursuant to s. 96 and 97 (1) of the Immigration and Refugee Protection Act.

[2]       I’ve considered your testimony and the other evidence of the case. I’m ready to render my decision orally.

Determination

[3]       I find that you are a convention refugee on the ground of anti-government political opinion for the following reasons.

Allegations

[4]       You allege the following: In 2015 and 2016, you experience threats and pressure to resign from your position as a [XXX] because of your pro-democracy views and activities.

[5]       After obtaining a study visa for Canada, you left Hong Kong in [XXX] 2018. You fear returning to Hong Kong because of your anti-government views in relation to the autonomy and pro-democracy views of Hong Kong.

[6]       You allege if you return, you will be persecuted. You allege that there is no state protection for you or an internal flight alternative.

Identity

[7]       I find that your personal identity as a citizen of the Hong Kong Special Administration Region People’s Republic of China has been established on the balance of probabilities by your testimony and the supporting documents filed in the exhibits, specifically your passport, Hong Kong permanent identity card, and driver’s license found in Exhibit-1.

Nexus

[8]       I find there is a link between what you fear and the ground of political opinion, and your claim is therefore assessed under s. 96.

Credibility

[9]       In terms of your general credibility, I found you to be a credible witness, and I therefore believe what you have alleged in your oral testimony and in your basis of claim form. I find that you are a long-standing pro­ democracy activist in Hong Kong.

[10]     Your testimony about your long-standing involvement and participation in the quest for genuine democracy and an autonomous Hong Kong was detailed and spontaneous. You described your strong belief in the rule of law, of human rights, and universal suffrage, and testified about your participation in protests during the Umbrella Movement. You submitted photos of your participation in protest activities in Exhibit-7.

[11]     As the result of your activities, I find on a balance of probabilities, that you face threats and harassment from anti-democracy persons. You’ve provided detailed testimony about the threats and the steps you took to report them to school management and other colleagues. You explained that as a result of the ongoing threats, you were experiencing [XXX] which was [XXX], and you also tried [XXX]jjjl4po-0l with the symptoms.

[12]     Your testimony about the fear and worry you felt when you came to school each day was most compelling and without embellishment. Your testimony was corroborated by medical report which is found in Exhibit-7. You also testified that reported the issues to the police liaison officer who was assigned to your school, but no action was taken.

[13]     Based on legal advice from a colleague who is a lawyer, you decided not to file an official report to the police because of their violent response to protests and their bias against democracy and actions which demonstrate they are a tool of the communist government.

[14]     In support of your testimony, you filed a complaint letter and a letter from the episcopal delegate for education, both found in Exhibit-7 which are consistent with your testimony and basis of claim form.

[15]     Most compelling was your testimony about the significant impact the threats and harassment had on your [XXX] health and marriage.

[16]     You provided detailed testimony about your political activities in Canada as they relate to Hong Kong. And I find you’ve attended a number of protests in Canada to support your brothers and sisters in Hong Kong. You provided testimony which is corroborated with photos and other supporting documents found in Exhibit-7 about your attendance at the Canada-Hong Kong Link event on [XXX] 2019, a protest on [XXX] 2020 at Old City Hall, an event about forgiveness in the context of the Hong Kong protest on [XXX] 2020, and another protest on St. George Street outside the Hong Kong Economic and Trade Office.

[17]     Some of these events have been posted online, and papers you have written with political content about Hong Kong protests and anti-democracy policies are also published in writing and online.

[18]     I find that your reavailment to Hong Kong in [XXX] 2018, [XXX] 2019, and [XXX] 2019 was reasonably explained. You testified that you were experiencing difficulties in your marriage and returned to Hong Kong to save your marriage in [XXX]. And returned in May 2019 to support your wife during the difficult time she faced with the Joss of her mother.

[19]     I also find that your delay in claiming protection for about nine months is reasonably explained. You explained that it was not until the extradition law was proposed in mid-2019 that you were really fearful of returning to Hong Kong given your pro-democracy activist profile. You also testified that with the recent introduction of the Security Law, you are more fearful of harm given the dilution of democratic principles contained in this legislation.

[20]     I therefore find that your subjective fear is established by your credible testimony and supporting documents, and I believe what you’ve alleged on a balance of probabilities.

Objective Basis

[21]     Your fear of being deported to Hong Kong in the present circumstances is a fear that is well-founded in the objective documents.

[22]     Item 2.1 of the NDP indicates that the government increasingly moved to restrict the expression of views it found objectionable even when those expressions occurred abroad.

[23]     This item also reports the following: That the government also expanded attempts to control the global dissemination of information online. Economic leverage on the mainland was used to suppress freedom of expression in Hong Kong. For example, employees of Cathay Airlines who engaged in protests or who demonstrated radical conduct were not permitted to work on flights entering the Chinese airspace. The government heavily censored the Hong Kong protests and blocked any neutral or positive reports about the protestors.

[24]     Item 2.2 reports that the founders of the Occupy Central campaign were charged with public nuisance­ related offences for their involvement with the Umbrella Movement. Also, four elected pro-democracy legislators were disqualified for failing to meet the National People’s Congress standing committee interpretation of the Hong Kong basic law when they took their oaths of office.

[25]     The Freedom House report found in item 2.3 reports a downward trend due to the expulsion of four pro­ democracy lawmakers from the legislature, jail sentences against protest leaders, and other apparent efforts by pro-Beijing authorities to stamp out a movement calling for local self-determination.

[26]     Item 4.1 reports that the 2014 Hong Kong protests and 2016 Legislative Council elections caught Beijing’s attention, and since Beijing seems to be tightening it’s posture towards Hong Kong’s governance, Beijing views all protest and pro-democracy political voices as potential challenges to China’s one-party rule. But it perceives Hong Kong’s calls for democracy as particularly threatening because of the city status as an international economic hub.

[27]     Your Counsel has submitted more current, objective evidence from reliable sources. In particular, the BEC news report found in Exhibit-7 reports that a new security law came into force on June 30th 2020 which gives Beijing powers to shape life in Hong Kong like never before. This article reports that the provisions of this legislation effectively curtails freedom of speech and protest and includes the ability of referral of some cases for trial in mainland China.

[28]     The July 2020 Amnesty International report also found in Exhibit-7 states that the new security law is overly-broad and vague and almost anything could be construed as a threat to national security. A New York Times article dated April 23rd 2019 also in Exhibit-7 reports that Umbrella Movement activists have been sentenced with terms up to 16 months for their roles in demonstrations in 2014.

State Protection

[29]     In this case, the agent of persecution is the state, as the persecution you would face should you return to Hong Kong is at the hands of the authorities. Accordingly, I find there is no state protection available to you.

Internal Flight Alternative

[30]     I find that there is a serious possibility of persecution throughout Hong Kong and therefore, no internal flight alternative is available to you, as the state is the agent of persecution and would be motivated to find you.

Conclusion

[31]     Based on the totality of the evidence, I find you to be a convention refugee, and I accept your claim.

REASONS CONCLUDED

Categories
All Countries Pakistan

2020 RLLR 44

Citation: 2020 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: September 25, 2020
Panel: D. Marcovitch
Counsel for the Claimant(s): John Savalgio 
Country: Pakistan
RPD Number: TB9-15066
ATIP Number: A-2021-00655
ATIP Pages: 000100-000105


REASONS FOR DECISION

[1]       The claimant, [XXX] claims as a citizen of Pakistan and seeks refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA“).1

ALLEGATIONS

[2]       The claimant’s allegations are fully set out in his Basis of Claim (BOC) form2 and amendment.3 In summary, the claimant is a [XXX] man who was born to a Sunni Muslim family in Sialkot, Punjab province on [XXX]. He alleges a fear of persecution from the Sunni extremist group Lashkar-e-Jhangvi (“LeJ”) as a result of his conversion from the Sunni sect to the Shia sect and his active Shia religious practices.

[3]       On or about [XXX] 2019, the claimant traveled from [XXX]. Then, on or about [XXX] 2019 the claimant travelled from [XXX] Canada, via [XXX] and arrived in Canada on [XXX] 2019. On or about June 11, 2019, the claimant’s refugee claim was referred to the Refugee Protection Board (the “Board”).

DETERMINATION

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

ANALYSIS

Nexus

[5]       I find that the claimant has a nexus to the Convention ground of religion, based on his allegations of having converted from the Sunni to Shia sect and consequent persecution alleged.

Identity

[6]       I accept, on a balance of probabilities, that the claimant is a citizen of Pakistan on the basis of his Islamic Republic of Pakistan passport4 which was seized by Immigration, Citizenship and Refugees Canada (IRCC) when the claim was filed.

[7]       Further, I also accept on a balance of probabilities that the claimant converted from the Sunni sect to the Shia sect of Islam, based on his testimony and support letters from friends, [XXX] officials, religious leaders and family. I find on a balance of probabilities that the letters from the claimant’s father and the [XXX] of the [XXX] that the claimant’s father belonged to, establish that the claimant was formerly a follower of the Sunni Islam sect.

Credibility

[8]       I had certain issues with the claimant’s credibility stemming from the fact that he paid the equivalent of approximately [XXX] CAD to an agent, while he was still working in [XXX] in order to secure Visa’s to various countries around the world, including Canada. I note that the claimant spent this money after converting to the Shia sect, but prior to having any threats made against his life in Pakistan. I asked the claimant why he would have spent [XXX] CAD to get the Visa’s if there were no threat to his life. The claimant testified that he did so just to be safe in case he experienced problems related to his Shia conversion or feared for his safety. I find that such an explanation is unreasonable in these particular circumstances. I find that spending such a significant amount of money for a ‘just in case’ situation where he would not have used the Visa’s if nothing transpired on his return to Pakistan, is implausible. I find on a balance of probabilities that the claimant spent [XXX] CAD to get the assistance of an agent and associated travel visa’s because it was always his intention to leave Pakistan even though he had not yet experienced any persecution at the time the Visa’s were acquired.

[9]       However, having made the above noted findings, I recognize that the above noted issues neither go to the core of the claim, nor should the implausibility finding, without more, lead to a negative decision.

[10]     While the above noted issues certainly raise questions, by inference, as to the credibility of the claimant’s allegations concerning what happened to him after he returned to Pakistan from [XXX], I find on a balance of probabilities that the claimant has provided sufficient corroborative evidence of his faith and activities once he was back in Pakistan, that I am unable to deny the credibility the allegations that go to the heart of his claim.

[11]     I note that the claimant provided hospital records and a First Information Report (“FIR”) that corroborate his allegations of having been attacked and injured after he left his [XXX] on [XXX] 2019. The claimant’s allegations in his BOC regarding this attack and the details contained in the FIR largely corroborate each other. The primary difference is that the FIR does not mention the LeJ as the claimant’s attackers, but rather as local, unknown extremist persons.

[12]     I also accept, on a balance of probabilities, that the claimant fled [XXX] and went to [XXX] prior to leaving Pakistan based on the support letter from [XXX], who the claimant stayed with in [XXX].

Well-Foundedness

[13]     There is considerable documentary evidence5 before the panel that supports the claim that there are significant problems in Pakistan for Shia Muslims in general and Sunni to Shia Converts in particular.

[14]     I note that in a Response to Information Request at NDP Item 12.56 it is stated that, “[s]ectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties,” noting that Shia face threats from anti-Shia militant groups, including Lashkar-e­ Jhangvi (LeJ), which “seeks to have Shi’a declared ‘non-believers’ or apostates,” as well as from Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the Tehrik-e Taliban Pakistan (TTP) (Australia 20 Feb. 2019, para. 3.99).” I find that the claimant’s fear of persecution in Pakistan is well-founded.

State Protection

[15]     The UNHCR Eligibility Guidelines For Assessing the International Protection Needs of Members of Religious Minorities From Pakistan7 dated January 2017, states, that “[T]he government has been criticized for failing to protect Shi’ite Muslims from attacks, and for allowing militant organizations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan.”

[16]     Further, the same UNHCR document notes that “[E]ven where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites.”

[17]     As a result, and given that authorities in Pakistan did not appear to assist/protect the claimant beyond taking the FIR, I find on a balance of probabilities that the claimant did not receive adequate state protection in the past and nor would he receive it in the future. I find that the claimant has rebutted the presumption of state protection.

[18]     The claimant testified that should he return to Pakistan today, he would be killed by the LeJ or other extremist religious militant groups due to his Shia religious activities. Based on the evidence adduced, I find on a balance of probabilities that the claimant came to the attention of the LeJ and is currently being pursued to stop his Shia activities. I find that while the claimant has only recently become an active and outwardly practicing Shia convert in Pakistan, I find that the evidence suggests that the LeJ has been looking for him in locations other than his home town of Sialkot and they also have his photograph as shown on the placard for the [XXX] mourning event on [XXX] 2019. I therefore find that there is no Internal Flight Alternative for this claimant because the LeJ tracked him down to a friend’s house in Lahore and have therefore shown a continuing interest in the claimant.  Further, even if the claimant were able to safely relocate in the short term to Hyderabad, I find that his active faith and sponsorship of [XXX] activities would create a serious possibility that he would eventually be found and persecuted in the future.

[19]     Therefore, based on the totality of the evidence adduced, I find that there is more than a mere possibility that the claimant will be persecuted by religious militant groups on account of being a Sunni to Shia convert and perceived to be active in Pakistan’s Shia Muslim community.

[20]     In light of my finding that the claimant is a Convention refugee, it is unnecessary to consider his claim under s.97(1).

[21]     This claim is accepted.

(signed)           D. Marcovitch

September 25, 2020

1 The Immigration and Refugee Protection Act, S.C.2001, c. 27, as amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c.17 (the “Act” or “IRPA”).
2 Exhibit 2.
3 Exhibit 7
4 Exhibit 1.
5 Exhibit 3, National Documentation Package (NDP) for Pakistan (March 31, 2020) and Exhibit 5.
6 Exhibit 3, NDP (March 31, 2020), tab 12.5: Situation and treatment of Shia [Shi’a, Shi’i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias (2017-January 2020). Immigration and Refugee Board of Canada. 15 January 2020. PAK106393.E.
7 Exhibit 3, NDP for Pakistan (March 31, 2020), item 1.8, at p. 54.

Categories
All Countries Sri Lanka

2020 RLLR 43

Citation: 2020 RLLR 43
Tribunal: Refugee Protection Division
Date of Decision: October 30, 2020
Panel: C. Peterdy
Counsel for the Claimant(s): Ian Wong
Country: Sri Lanka
RPD Number: TB9-09362
ATIP Number: A-2021-00655
ATIP Pages: 000093-000099


DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection of [XXX]. The file number is TB0-09362. I have considered your oral testimony and the other evidence in this case and I’m ready to render my decision orally.

[2]       (Indiscernible) claiming to be a citizen of Sri Lanka and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a convention refugee on the grounds of your ethnicity, religion, and an imputed political opinion for the following reasons:

[4]       Your allegations are made out in your Basis of Claim Form which is found at Exhibit 2. In summary, you allege that you are a citizen of Sri Lanka and that you fear harm at the hands of the Sri Lankan government, army, police, and security forces, as well as ballistic extremist as a Tamil-speaking Muslim.

[5]       You allege that you and your family historically faced discrimination and harassment as Muslims. You allege that after the Candy Riots of [XXX] 2018, you and your employee were attacked by Sinhalese men and called racial slurs. Sinhalese people also boycotted your business.

[6]       You further allege that land you had purchased in 2012 was supposedly taken by the military in 2013. You reached out to government officials and even held a demonstration in 2018 to have the land returned.

[7]       A lawsuit was filed against the army in 2017 by the man from whom you purchased the land. As a result of your efforts, you faced harassment and threats. In [XXX] 2019, you were detained by the Terrorist Investigation Department, or TID, for one day where you were questioned about your work, your trips abroad and who funded these trips. The TID alleged they had information about your anti-government and anti-Buddhist activities and accused you of turning innocent people against the government. You were beaten by the TID and released with a strict warning not to engage in anti-government activities.

[8]       The man who sold you the land and who had purchased — sorry — who had sold you the land and who had launched the court case against the Military received threatening phone calls and went missing in [XXX] 2019. You also received threatening phone calls in [XXX] 2019. It was then that you determined it was no longer safe for you to remain in Sri Lanka and you fled to Canada.

[9]       Since fleeing, the army has returned to your home and gone to your Mosque and your wife’s workplace to inquire about your whereabouts. Your wife was informed that on return to Sri Lanka you are to present yourself to the Ampara Police Station concerning an investigation into your anti-government activities and a discovery of explosives on your land.

[10]     Your identity as National of Sri Lanka has been established on a balance of probabilities by your testimony and the identification documents found in Exhibit 1 and 6, including your passport and National ID card.

[11]     In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim Form. Your testimony was straightforward and consistent with your Basis of Claim Form. You did not embellish your testimony and there were no significant omissions or inconsistencies. Your testimony was spontaneous and included the detail one would expect from someone telling their own story.

[12]     You also provided several documents to corroborate your claim and the risks alleged. These include documents corroborating your work and involvement in the business community. At Exhibit 6, you have your business registration, Ampara District Chamber of Commerce and Industry ID, as well as certificates of membership from 2016 and 2018, Certificate of Membership from the International Association of Lions Club. You’ve provided documents confirming the land you purchased in Exhibit 6 and 8. There’s the land permit showing the grant of four acres to [XXX] (ph) as well as his affidavit confirming transfer of this land to you after receipt of [XXX], and a copy of the selling agreement and a request to have the land permit transferred to your name.

[13]     You provided the court order from [XXX] 2017 corroborating your allegation that a case was filed by [XXX] and dismissed by the court in (indiscernible) because the land falls under the Ampara Court’s jurisdiction.

[14]     There’s a letter from the lawyer who represented you and confirms that you and [XXX] approached him for help. He states that the re-opening of the case in Ampara had to be suspended because [XXX] went missing and you were being harassed and ultimately fled to Canada.

[15]     There’s a letter from your Mosque, your wife, your father, a friend, and an employee who are aware of what has happened to you in Sri Lanka. [XXX] (ph) (indiscernible) states that the TID has visited the Mosque asking about you. Your wife states that since you fled, the TID has gone to your home in [XXX] 2019 and twice in [XXX] 2019 after the Easter bombings to ask about you and to search the home. [XXX] (ph) confirms that he was with you in [XXX] 2018 when you were attacked by Sinhalese men and called a racial slur.

[16]     Based on your testimony as well as the documents provided to corroborate your claim, I find on a balance of probabilities that you have established that you were harassed and targeted because you were a Muslim. I further find that you have established on a balance of probabilities that you purchased land that was forcibly taken by the military and that after trying various avenues of recourse to have the land returned to you, you were arrested, detained, and questioned by the TID.

[17]     I accept that the TID believes that you are opposed to the Government and have engaged in in anti-Sinhalese and anti-Buddhist activities and as a result, you face a serious possibility of persecution in Sri Lanka. Furthermore, I find that you have established subjective fear of harm.

[18]     The objective evidence in both the National Documentation Package found in Exhibit 3 and counsel’s Country Conditions Package found at Exhibit 7, further corroborates what you allege and the risk you face as a Muslim in Sri Lanka.

[19]     With respect to the land issue, Item 10.4 of the National Documentation Package is particularly instructive. It’s a Human Rights Watch Report on Land Occupation from October 2018. That corroborates the issue you had with your land being taken by the military as well as the challenges in having the land returned.

[20]     Security forces have occupied new land even after the end of the war to expand their role and presence in civilian activities including infrastructure development, tourism and administration. It contains examples of military going into villages, forcibly taking land and erecting military camps in the East and in Ampara, which is the district where you lived.

[21]     The report raises concerns that “the Sinhalese-dominated state is seeking to diminish the rights of minorities through continued militarization and territorial aggrandizement.”

[22]     There are many challenges getting the land back. The government’s approach seems at best ad hoc, and decisions are too often left to the discretion of the security forces, without a serious effort to systematically map and review military use of land as well as the status of release and reparations initiatives.

[23]     The report also talks about specific incidents where people have filed complaints in the court for their land and have been harassed forcing them to withdraw these complaints. Most cases that have been filed are either still ongoing or did not result in the release of the lands.

[24]     There are also numerous documents in both the National Documentation Package and counsel’s Country Conditions Package that discuss the rise in anti-Muslim sentiment that has occurred in Sri Lanka over the past six or seven years. There’s been violent attacks, threats, and harassments that came to a head in 2018 after the Candy Riots and again, in 2019 after the Easter bombings.

[25]     The articles in Exhibit 7 as well as Items 1.9, 2.1, 2.2, 2.4, 12.1, 12.5, 12.6, 12.8, and 12.9 in Exhibit 3 all discuss the myriad of attacks against Muslims in retaliation for the Easter bombings.

[26]     Exhibit 7, there’s an article that talks about “angry mobs” going house to house to attack and threaten Muslims. On article — another article in Exhibit 7 states that the Human Rights Watch is urging the government to stop mob violence, threats, and discrimination against Muslims. Authorities are arbitrarily arresting and detaining hundreds under counterterrorism and emergency laws, and there had been a lot of arrests under the Prevention of Terrorism Act, which allows long-term detention without charge or trial.

[27]     Human Rights Watch spoke to lawyers who had a list of 105 detainees that summarized the justification for arrest by authorities and included such reasons such as keeping money at home, talking in a playground, a post that’s shared on social media five years back, having English lecturer documents, Arabic songs on their laptop, or travelling to Jaffna for a job. Or simply no reason. Abuses by authorities had long been prevalent and unaddressed by the government.

[28]     And Government leaders themselves appeared to associate themselves with Buddhist Nationalist elements. On May 23rd, 2019, then President Sirisena pardoned the leader of (indiscernible) of the Buddhist-extremist group known for targeting Muslims.

[29]     In Item 12.8 which was also included in Exhibit 7, states that months after the Easter bombings, the situation is still dangerous, even though attacks were committed by a fringe group of Muslims. Muslims in general are facing significant backlash.

[30]     The government has sat idly by or even egged on violence and political divisions in Government have constructed efforts to reform the dysfunctional police and intelligence services.

[31]     Since the election of Gotabaya Rajapaksa as President in 2019, and Mahinder (ph) Rajapaksa as Prime Minister in 2020, the security situation and conditions in Sri Lanka have only deteriorated. Concerns of any gains made under the previous government towards improving the human rights situation, would be reversed are reflected both counsel’s Country Conditions Package and the National Documentation Package.

[32]     Item 2.13 noted that the concern that the government will roll back any progress made under the previous government towards improving the human rights situation and that this government will renege on promises made under the former government. Item 4.13 of the National Document Package states that since Rajapaksa seeking power there is a trend towards authoritarianism and militarization. There has been a crack down on human rights with no regard for minorities. Rajapaksa is dismissive of what he calls divisive political demands and frames them as a result of manipulation by Tamil politicians and western aligned interests.

[33]     Item 13.1 states that human rights have deteriorated significantly since Rajapaksa was elected president. Both Gotabaya and Mahinder Rajapaksa have espoused anti-Muslim news publicly.  An article in Exhibit 7 sates that Gotabaya campaigned on the province to protect Sri Lanka from the Muslim threat, and after the election, he appointed an all male cabinet with no Tamil or Muslim representatives.

[34]     Another article from 2020 states that Gotabaya and Mahinder Rajapaksa campaigned on a nationalist platform projecting your family as protectors of the Sinhalese Buddhist population. There has always been anti-Tamilism (ph) in the country, but recently there has been arise in hatred against the Muslim minority too. Mahinder Rajapaksa’s message has been that Sri Lanka belongs toto the Sinhalese and that Tamils are Muslims are their permanent threats.

[35]     In 2020, a year after the Easter bombings, the situation from has not improved, and in fact, has worsened due to the global pandemic of COVID 19. Item 12.5, which was also included in exhibit 7, states that concerns were raised in April 2020 about recent arrests of well-known Muslims, biased government actions and rising ant-Muslim hate speech. COVID has worsened the situation, where there has been calls to boycott Muslim business and accusations that Muslims are deliberately spreading COVID 19. Senior government figures have made public remarks associating the Muslim community with COVID 19 infections.

[36]     Another article states that the government’s frequent incidents of demonization, vilification and state guarding of Sri Lanka’s Muslim population are a cause of great concern. The government has mandated cremation for those who have died due to COVID 19 and the body of the first Muslim death due to COVID 19 was forceable cremated against the wishes of his family and against urging of the Muslim community and religious leaders, a policy that was seen as discriminatory. This was also reflected in Item 12.9, which again noted the discriminatory law mandating cremation for those who die from COVID and for accusing the Muslim community being at high risk for spreading the disease. In the past year [XXX] have been arbitrarily arrested and accused critiquing Buddhism and the government.

[37]     Furthermore, the objective documents confirm the risk he would face on return to Sri Lanka as a Muslim who is under investigation by the TID and has been accused of engaging in anti-government and anti­ Buddhist activities. Item 1.9 of the National Documentation Package states that there is a watch list which includes names of those individuals of the Sri Lankan Security Services considered to be of interest, including for suspected separatists or criminal activities.

[38]     Item 4.11 states that returning failed asylum seekers would likely be questioned at the airport by immigration officials and may be passed to the criminal investigation department. But they do security checks at the airport where they look into a police database from where the returnee is from, and it is not unusual to have further checks at home and to be monitored.

[39]     Item 14.6 states that returnees are checked against the watch list maintained by police as well as one maintained by State Intelligent Services. Returnees are questioned on arrivai by the Department of Immigration and Emigration, State Intelligence Services and Criminal Investigation Department for a few hours to several days. They may also be visited by police at their residence at a later time after the interrogation. Returnees from western countries in particular are placed under surveillance to determine whether they have ties to the LTTE.

[40]     Therefore, based on this documentary evidence, I find that the claimant has an objectively well-founded fear of persecution.

[41]     I find that state protection would not be available to you were you to seek it in Sri Lanka. Where agents of the state themselves are sources of persecution, the presumption of state protection may be rebutted without exhausting ail avenues of recourse in the country. In this case, the agents of persecution are the state; the police, army and intelligence community. Your evidence is that since fleeing, the TID has informed your wife that you are under investigation for engaging in anti-government activities. For that reason, it would not be reasonable to expect you to approach the state for protection.

[42]     The National Documentation Package also contains information about the Human Rights Commission in Sri Lanka. Item 1.9 states that the commission can only make recommendations to the Attorney General, but there is evidence that the state is not investigating a major of complaints filed. This report further states that Sri Lanka Jacks independent and efficient mechanisms to address complains to torture.

[43]     Item 2.2 also states that limited steps are taken to hold perpetrators of serious human right violations accountable. In Item 2.3, it is noted that police and security forces are known to engage in abusive practices, including extra judicial executions, forced disappearances, custodial rape, and torture.

[44]     So in light of the objective country documentation, as well as your persona) experience, I find that the claimant has rebutted the presumption of state protection. And based on this information again, I find that there would not be adequate state protection available to you in Sri Lanka.

[45]     I have also considered whether a viable internal fight alternative exists for you, however, given that the agent of persecution is the state and you have been targeted both the army and TID, I find that you face a serious possibility of persecution throughout Sri Lanka. Item 1.9 states that Sri Lankan forces maintain effective control throughout the country and individuals are unlikely to relocate internally with anonymity. You are known to security officials who believe you have engaged in anti-government activities. Security officials have repeatedly gone to your home looking for you and have instructed your wife to have you present yourself to the Ampara police station (indiscernible). Therefore, I find there is no viable IFA, or internal flight alternative, for you in Sri Lanka.

[46]     Based on the totality of the evidence, I find that you have established on a balance of probabilities that there is a serious possibility of persecution if you were to return to Sri Lanka. Therefore, I find that you are a convention refugee and your claim is therefore accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries India

2020 RLLR 42

Citation: 2020 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: R. Moutafova
Counsel for the Claimant(s): Mohammad Khan Khokhar
Country: India
RPD Number: TB9-07818
ATIP Number: A-2021-00655
ATIP Pages: 000085-000092


REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the panel) in the claim for refugee protection of [XXX] (the claimant), citizen of India. She claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the IRPA).1

[2]         The Chairperson’s Guideline 4- Women Refugee Claimants Fearing Gender-Related Persecution was considered and applied to the hearing and determination of this claim.2

ALLEGATIONS

[3]       The claimant’s detailed allegations are contained in her Basis of Claim form (BOC)3 and in her testimony. In summary, the claimant is unmarried [XXX] single woman, who graduated from the [XXX] with a [XXX] and found work in the [XXX] field. She fears serious harm or death in India at the hands of her former managers, who sexually assaulted her and blackmailed her. The claimant also fears serious hmm or death in India at the hands of a high-ranking police officer who colluded with her former managers and participated in the abuse and the blackmailing.

DETERMINATION

[4]       Having considered ail of the evidence, including the claimant’s testimony, the panel finds that the claimant faces a serious possibility of persecution in India on the basis of her membership in the particular social group of Indian women facing gender-based violence. The panel therefore finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA and accepts her claim.

ANALYSIS

Identity

[5]       The panel is satisfied that the claimant’s identity has been established, on a balance of probabilities, by a certified copy of her Indian passport filed into evidence4.

Nexus

[6]       The panel finds that for the claimant, there is a nexus with one of the five Convention grounds, i.e. her membership in the particular social group of women fearing gender-related persecution.

Credibility

[7]       Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this case, the panel has no such reason. The panel finds the claimant to be a credible witness and believes, on a balance of probabilities, the key allegations of her claim. The testimony of the claimant was spontaneous, emotional, detailed, and sincere. The panel did not find that she tried to embellish or exaggerate her allegations during her testimony. There were no significant inconsistencies or omissions with regard to the main allegations. Her testimony was consistent with the allegations in her BOC, and also included additional details that allowed the panel to more fully understand her claim.

[8]       Since this claim involves gender related violence, the panel considered the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.5 The Chairperson’s Guideline assists in assessing the key evidentiary elements in determining to what extent women making a gender-related claim of fear of persecution may successfully rely on any Convention ground and under what circumstances gender violence constitutes persecution. The Chairperson’s Guideline also highlights that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. Factors that may affect their ability to provide evidence include difficulty in providing testimony on sensitive matters, cross­ cultural misunderstandings as well as social, religious, and economic differences. The Chairperson’s Guideline was used to help assess the circumstances of this claim and to understand and apply the added sensitivities necessary to properly assess the evidence.

[9]       The claimant is unmarried [XXX] single woman, who graduated from the [XXX] and found work in the [XXX] field. She was promoted soon to [XXX]. In [XXX] 2016 a new manager substituted her previous lady- manager. Soon the physical and psychological mistreatment of the claimant started at the hands of this manager, who proposed to the claimant to become his personal assistant as a manner of promotion. She refused and then the sexual harassment began. Details of the mistreatment are detailed in the BOC form. The claimant tried to complain to HR department, but was made to understand that a dismissal will follow, should she proceed formally with the complaint.

[10]     The claimant decided to put the harassment to an end by leaving her job and she filed a notice of resignation.6 Her manager threatened her, that she would not find job in the [XXX] industry again. Nevertheless, she proceeded with her resignation and the employment contract was terminated upon the expiry of the notice, in [XXX] 2016.

[11]     Indeed, the claimant was not able to find a job [XXX] for a while and, thus, decided to change the industry of occupation. She found a job in another town, where she lived with her parents, as a [XXX]. The professional relationships in the new workplace were very good to the moment when her old manager appeared in the office, and talked to her current manager in [XXX] 2018. Then the claimant was subjected to horrible mistreatment and molestation by her manager and a man in police uniform and, who was introduced as a Senior Superintendent of the Police Department. She was threatened with kidnapping of family members and troubles for her family should she attempt to complain to the police. The claimant was repeatedly intimidated by her manager, who would come to the claimant’s parents’ house looking for the claimant and threatening to ruin her family and more particularly – her dignity by posting the video-material on-line.

[12]     The claimant felt she had no choice and resumed work in the office. The molestation and the sexual harassment continued on a regular basis. The claimant was devastated. Her mistreatment was turning into horrible sexual abuse, which led to profound [XXX].

[13]     The claimant arranged for the continuation of her study in Canada and arrived in [XXX] 2018 and filed this asylum claim.

[14]     The claimant outlined in her BOC that throughout her employment several men severely abused her, molested her and finally, learning about her plan to leave India and obtained student visa to Canada, abducted her and subjected her to a most horrible sexual violence, committed by several men. She provided credible testimony about her fears in India and the events that occurred in India that precipitated her departure. She testified about her employment experience and provided the expected details about it. She explained how, in early [XXX] 2017, she left her job, understanding that this is the only way to resolve the problem with the sexual harassment at work. She explained how she arrived to the decision to change the industries and the cities of employment. She explained that following the molestation at the new workplace, she unsuccessfully attempted to file a complaint in the police. She also described in detail how, in [XXX] 2018, she was intimidated by her manager, who came to her residence, insisting that she comes back and continue to work in the office, threatening to destroy her family and her reputation.

[15]     The claimant’s allegations are supported by corroborating evidence, including her employment history, which was consistent with her allegations.

[16]     In the claimant’s case, there were no relevant contradictions, inconsistencies, or omissions between her BOC, her testimony at the hearing, and the documentary evidence on file, that were not reasonably explained.

[17]     The claimant’s allegations are supplied by the objective documentary evidence on file. The National Documentation Package for India indicates that violence against women, including sexual violence, has increased in India,7 and also points out the inadequacy of state protection, as discussed below. The documentary evidence also is replete with references to abuses of authority and corruption within the justice system, including within the police, and the growing demand for police account ability.8

[18]     The panel therefore finds that the claimant has established, on a balance of probabilities, that she suffered physical and sexual assault by her two managers, who initiated and organised violent and brutal sexual violence and harassment, involving a high-ranking police officer and unknown men, and that the police refused to perform their duties and to protect the claimant, when she attempted to file a First Information Reports (FIR) and to get police protection, but this was not successful.

State Protection

[19]     The panel finds that the claimant has rebutted the presumption of state protection, with clear and convincing evidence that the Indian state would be unable or unwilling to provide her with adequate protection.

[20]     The documentary evidence indicates that in April of 2013, the President of India approved the Criminal Law (Amendment), which criminalizes several forms of violence against women and enlarged the definition of rape.9 However, the law has been criticized for not going far enough in certain aspects. According to the same source, the legislation “does not remove the effective legal immunity that security forces accused of sexual violence enjoy under special laws like the Armed Forces (Special Powers) Act.”10 In addition, the documentary evidence points to inadequacy and inconsistency of police response to sexual assault across India, and the widespread need for the training of police officers in this regard.11

[21]     ln this case a high-ranking police officer was among the claimant’s agents of persecution. The panel has found credible the claimant’s allegations of sexual assault at the hands of her ex­ managers and their friends. The panel has also found credible her allegations with respect to the unsuccessful attempt to complain to the police in Chandigarh and about the threats she received. Moreover, as indicated above, the documentary evidence is replete with references to police abuse and impunity throughout India.

[22]     Given the evidence, the panel finds, on a balance of probabilities, that adequate protection would not be provided to the claimant in India.

Internal Flight Alternative

[23]     At the hearing, the panel asked the claimant whether she could relocate safely and reasonably to a large Indian metropolis, such as Mumbai or Kolkata.

[24]     The test to apply to assess whether there is an Internal Flight Alternative (IFA) has two prongs. The first is to determine whether there is, in the proposed IFA, a serious possibility of persecution under section 96 of the IRPA or if there is a risk, on a balance of probabilities, that the claimant would be subjected to one of the harms set out in subsection 97(1) of the IRPA. The second prong involves determining whether it would be objectively unreasonable to expect the claimant to seek refuge there, taking into account the circumstances specific to her.

[25]     The claimant testified that she would not be able to relocate, arguing that she fears that her manager will find her given that he has ties with the police which would enable him to find her. This already happened once when the claimant, hoping to put the assault to an end, resigned from her job, changed her location, going to another town, and even changed the industry of employment, but, nevertheless, she was found by her former manager.

[26]     The panel finds that the claimant has demonstrated that the alleged agents of persecution – the claimant’s managers and the colluding high-ranking police officer, have the means and the motivation to find and harm the claimant anywhere in India.

[27]     Accordingly, since the possibility of an IFA fails on the first prong, the panel will not proceed to the second prong of the IFA analysis. Thus, the panel concludes that an IFA is not a reasonable option in the claimant’s particular case.

CONCLUSION

[28]     After assessing all of the evidence, the panel concludes that if the claimant returned to India, she would face a serious possibility of persecution under section 96 of the IRPA, as a result of her membership in the particular social group of women fearing gender-related persecution. Thus, the panel finds that the claimant, [XXX], is a Convention refugee. Accordingly, the panel accepts her claim.

(signed)           R. Moutafova

March 10, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act.
3 Document 2 – Basis of Claim form (BOC).
4 Exhibit # 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC); Certified true copy of the claimant’s passport.
5 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act.
6 Exhibit# 6 – Notice of resignation.
7 Exhibit # 3 – National Documentation Package on India, 31 May 2019; Item 5.2: IND105130.E, 15 May 2015; Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence (2013-April 2015).
8 Idem; Item 7.8: IDFC Institute, 20 April 2017, Safety ])-end,· and Reporting a/Crime; Item 9.6: Amnesty International, 2017, Justice Under Trial: A Study of Pre-Trial Detention in India; Idem; Item 9.7: IND105781.E, 5 May 2017; Independence of and coJTuption within the judicial system, including the scale of corruption at different levels (2015-May 2017);Item 10.5: Commonwealth Human Rights Initiative, December 2012, Police Complaints Authorities in India: A Rapid Study.
9 Idem.
10 Idem.
11 Idem, Item 5.3: BharatiyaStree Shakti, March 2017, Tackling Violence Against Women: A Study, if State Intervention Measures.

Categories
All Countries Romania

2020 RLLR 41

Citation: 2020 RLLR 41
Tribunal: Refugee Protection Division
Date of Decision: July 7, 2020
Panel: G. Griffith
Counsel for the Claimant(s): Peter G Ivanyi
Country: Romania
RPD Number: TB9-02978
Associated RPD Number: TB9-03059, TB9-03070
ATIP Number: A-2021-00655
ATIP Pages: 000076-000084


REASONS FOR DECISION

[1]       [XXX], the principal claimant, his common-law spouse, [XXX], the female claimant, and their son, [XXX], the minor, claim refugee protection in Canada, pursuant to s. 96 and s.97 (1) of the Immigration and Refugee Protection Act (IRPA)i.

[2]       The minor son was born in the USA and is a citizen of the USA.

[3]       [XXX] was appointed Designated Representative for the minor son.

INTRODUCTION

[4]       The claimants claim to be ethnic “Roma”, and the adult claimants, who were born in Romania, testify that, in Romania, they have been victims of extreme discrimination, because of their ethnicity. They allege that, in a number of cases of discrimination and confrontation by Romanians, the police in Romania have not assisted, or have been complicit.

[5]       The adult claimants left Romania in [XXX] and, after a stay in the USA, where an asylum claim was made, they travelled to Canada on [XXX] 2018.

[6]       The principal claimant lived for brief periods in Sweden and Belgium in the years 2003 and 2006, respectively.

[7]       The Minister’s Representative provided submissions (written only) on the issue of the credibility of the overall testimony, as well as with specific concerns and request for clarification on the nature of criminal charges issued to the principal claimant in the USA, and clarification on the claimants’ method of entering Canada.

[8]       No evidence was adduced in the claim of the US-born minor claimant.

[9]       The principal claimant is also the father of three children who, at the time of the hearing, were listed as being resident in Romania.

ALLEGATIONS:

[10]     A summary of the key elements of the testimony is, as follows.

[11]     The principal claimant gave oral testimony in which he states the following, as in the written narrative of the claimants’ Basis of Claim (BOC)ii Form.

[12]     He states that in Romania, starting at an early age, as an ethnic Roma, he, personally, experienced extreme discrimination and persecution.

[13]     He testifies that he and his spouse are identified as “Roma” in Romania, as that, generally, a Roma is identified by a combination of skin color, facial hair, manner of dress, customs, language, and places of residence, and that they endure certain impositions such as that a “Roma” must register with the police if there is any attempt at residential relocation.

[14]     The principal claimant testifies that he experienced those conditions, starting as a young child, and that, at school, he experienced hard times, being called names such as “dirty gypsy” or “crow”. He testifies that the teachers at school had no sympathy for him, or for other Roma students from his community.

[15]     The principal claimant testifies that, as a result of the regular harassment at school, he sought employment at an early age, but that in searching for employment, also, he experienced difficulties and discrimination. He testifies that he was regularly refused employment, with only the explanation that he was Roma.

[16]     The principal claimant testifies further, that, as an adult, also, he experienced direct physical and verbal abuse by Romanian persons, and even by the police in Romania. He testifies that on three occasions when he sought help of the police in Romania, he was rebuffed and insulted.

[17]     The principal claimant testifies to the following specific incidents that he faced as an adult., such as happened in Romania at a market, in the year 2008. On that occasion, he states, he became involved in a physical and verbal altercation at a grocery store with employees who perceived that his cousin, his wife and himself were there to steal.

[18]     The principal claimant testifies that they were followed around, and, at the cashier, an employee pulled the hair of his cousin. He testifies that he intervened, to also protect his wife, and he was punched in the face, and they were called “crows”. As well, when they managed to exit the store, they noticed on that there were other persons on the outside who were gathering to physically abuse them.

[19]     The principal claimant testifies that, in that same year, 2008, while on his way to work in one of the villages, he was beaten by racist Romanians. Also, in that same year, he and his wife were kicked out of a restaurant because Romanians in the building felt uncomfortable. And, when he attempted to make a report to the police, it was not accepted.

[20]     The principal claimant states, further, that in the year 2010, while driving with a friend, they were pulled over by the police, and that even after offering a bribe, they were beaten by the police.

[21]     The principal claimant testifies further, as contained in his narrativeiii, to incidents that occurred in the years 2011, 2012, 2013, 2014, and 2015, where the underlying facts are alleged to be incidents of discrimination, and physical altercations with Romanians, in which, also, he states, the police in Romania did not offer any assistance, following complaints, and that the police, themselves, assisted in the discrimination.

[22]     The principal claimant testifies that he left Romania in [XXX] 2016, and, after travelling with his brother [XXX] through [XXX] he arrived in the USA, where he asked for asylum.

[23]     The principal claimant testifies that he was arrested for being illegally in the USA, and, later, he was released, with an ankle monitor device.

[24]     The principal claimant testifies that, on [XXX] 2018, he and the spouse travelled to Canada in order to make a refugee claim, and they did so, travelling by boat.

DETERMINATION

[25]     For reasons below, I find that the claimants are Convention refugees, as, in my opinion, their expressed subjective fear has an objective basis.iv

ANALYSIS

[26]     The claimants’ national identity is established on the basis of a certified true copy of documentsv submitted by Immigration Canada, and, as well, as established in their package of personal documentsvi which include a copy of the national Identity card of Romania, in the name of the adult claimants.

Credibility/plausibility

[27]     I agree with counsel’s submissions, namely that, overall, the evidence is credible, and that it presents information of a serious violation of the claimants’ human rights in Romania.

[28]     I am satisfied that the principal claimant presented his testimony in a straightforward and consistent manner, and I find that he clarified, satisfactorily, the concerns raised by the Ministervii, in the written document.

[29]     I find that the principal claimant has adequately clarified that a charge against him in the USA was the result of an accusation of a [XXX] and that, in the end, it was [XXX] by a US Judge.

[30]     I note that, also, as clarification, the principal claimant has explainedviii that, in [XXX] by the police on a [XXX] on the street. Similarly, he explained, in [XXX], the principal claimant was [XXX] for the same offence of [XXX] on the street. He returned to Romania in 2007, following which he travelled around Europe job hunting, but eventually resorting to [XXX].

[31]     I find that the principal claimant was straightforward in his testimony in this area, and, with particular respect to the Minister’s concern on the charge against the principal claimant in the USA, the testimony is accepted, and not fatal to the claims.

[32]     As well, I find that the details of the manner in which the adult claimants entered Canada [XXX] in a process that, seemingly was contrary to CBSA requirements, is not a bar to the making of a refugee claim, and given the clarification provided.

Objective Basis

[33]     I find that the claims, as presented by the adult claimants, are supported by the guidelines in the Hand Bookix, and by the case-lawx, where it is held that a number of discriminatory and harassing acts may cumulatively amount to persecution.

[34]     I find that, in addition to the claimants’ undisputed testimony, I can rely on the documentary evidencexi, some of which forms part of Counsel’s submissions.

[35]     In his writtenxii and oral submissions, Counsel has provided a helpful review of the country condition documents and case law that relate to Romania, and as found in his documentary packagexiii.

[36]     In my own review, also, I find that a relevant guide to my conclusions is found in excerpts of the Response to Information Request, ROU105285.Exiv, as follows.

[37]     In that documentxv, the following is said, in part.

” … The World Bank report indicates that Roma in Romania are “poor, vulnerable and socially excluded” (28 Feb. 2014, 5). A report produced by the European Union Agency for Fundamental Rights (FRA) and the United Nations Development Program (UNDP) that” draws on the results of the UNDP/World Bank /European Commission regional Roma 2011 survey [3]”, reports that approximately 81 percent of Roma are at risk of poverty compared to approximately 41 percent of non-Roma (EU and UN 2012, 24.xvi

Under the heading Treatment of Roma (Treatment by Society), it is stated that, “the US Department of State’s Country Reports on Human Rights Practices for 2014 indicates that roma face systemic discrimination by society, which affects them in areas of education, housing, health and employment (US 25 June 2015)… Country Reports 2014 notes that stereotypes and discriminatory language regarding Roma was widespread (US 25 June 2015,33)… According to a report the Open Society Foundation (OSF)… indicates that “pervasive racism and racist violence continue to distance many Roma families and groups from the greater society (OSF 10 Sept 2013yvii.

[38]     I find to be relevant, also, a documentxviii found in Counsel’s package where the opening sentence reads, ” … In a ruling dealing with what it called “institutionalized racism” directed against Roma in Romania, the European Court of Human Rights has for the first time explicitly made use of the term “ethnic profiling” with regard to police action it found to be discriminatory”xix.

Failure to claim elsewhere- [XXX]

[39]     I have accepted as reasonable, the claimant’s testimony and counsel’s submissions on the issue that the claimant failed to seek asylum in [XXX], which he visited in the year 2003 and 2006, respectively. Counsel points out that, and as found in his documentary package, an IRB documentxx, notwithstanding that there is not likely a bar against claiming refugee protection in these countries by citizens of these countries, the provisions of the Asnar Protocolxxi virtually prevents the filing of refugee claims from citizen of European States, as there is an almost zero recognition of claims among the European States.

[40]     Counsel points out that, according to some documentary evidencexxii, procedurally, the governments of these countries behave differently in the matter of asylum claims, and that some countries reject applications from countries considered to be safe countries.

[41]     I have determined, also, that the claimants’ decision to leave the USA to seek protection in Canada is not unreasonable, The principal claimant testifies that he was informed that Canada could provide them with protection, while, at the same time, during his wait in the USA he faced the difficulty of surviving on little money [XXX] while his spouse, the female claimant, [XXX] for money and food.

[42]     For these reasons and after careful consideration of the evidence and submissions, I find that the adult claimants [XXX], the principal claimant, and his common-law spouse, [XXX], the female claimant have established valid claims and are Convention refugees.

[43]     I accept the claims of [XXX].

[44]     I reject the claim of the son, [XXX], the minor claimant, a citizen of the USA. In his claim, no evidence has been adduced in support, pursuant to s.96 or s. 97 of IRPA.

(signed)           G. Griffith

July 7, 2020

i Immigration and Refugee Protection Act, S.C. 2001, c.27.
ii Exhibit 2.
iii Ibid.
iv Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).
v Exhibit 1.
vi Exhibit 6
vii Exhibit
viii Exbibit 6
ix Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, under the I 951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, January 1988, paras 54-55.
x Madelat v. Canada (Minister of Employment and Immigration), [1991] No. 49 (F.C.A.)
xi Exhibit 3, Index to National Documentary Package for Romania
xii Exhibit 10
xiii Exhibit 3
xiv Exhibit 3, Index to NDP for Romania, Response to Information Request (RIR), ROUI05285.E: Romania: Situation of Roma, including treatment by society and government authorities; state protection and support services available to Roma (2011-2015), Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 9 October 2015.
xv Ibid.
xvi Ibid.
xvii Ibid.
xviii Exhibit 10: Case Watch: European Court Finds Ethnic Profiling by the Police Discriminatory, Zsolt Bobis, Open Society Justice Initiative, April 23, 2019
xix Ibid.
xx Exhibit 12, European Union: Application of the Protocol on Asylum for Nationals of Member States of the European Union (2013- June 2015). Refworld (UNHCR), Canada: Immigration and Refugee Board of Canada, 9 July 2015
xxi ibid
xxii Ibid.

Categories
All Countries Turkey

2020 RLLR 40

Citation: 2020 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: February 25, 2020
Panel: J. Kim
Counsel for the Claimant(s): Aleksandar Jeremic
Country: Turkey
RPD Number: TB8-27767
Associated RPD Number: TB8-27831
ATIP Number: A-2021-00655
ATIP Pages: 000071-000075


DECISION

[1]       MEMBER: Okay, this is a decision for the following claimant’s [XXX] File number TB8-27767. I’ve considered your testimony and other evidence in the case and I’m ready to render my decision orally.

[2]       You are claiming to be citizens of Turkey and are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are Convention refugees for the following reasons.

[4]       You allege the following; that you are citizens of Turkey and are Alevi’s and that if you were to return you will face persecution due to your active involvement with HTP and CHP. You allege that there is no state protection for you or an internal flight alternative.

[5]       You allege that you were detained multiple times by the police and that even after you left Turkey people who knew you were being asked about you by the police when they themselves were detained.

[6]       Your personal identity as citizens of Turkey has been established by your testimony and the supporting documents including your passports and your identity as Alevi has been established by your testimony and the supporting documents including a support letter from your father, [XXX] and a letter from Canadian Alevi Culture Centre.

[7]       I find that on a balance of probabilities that your personal and religious identities have been established.

[8]       I find that there is a link between what you fear and one of the five convention grounds specifically political opinion. I therefore assessed your claims under Section 96.

[9]       In terms of your general credibility I have found you to be credible witnesses and I therefore believe what you have alleged in your oral testimony and in your basis of claim forms. Your testimony was straightforward and was in keeping with your basis of claim form and there are no significant inconsistencies or omissions that went to the heart of the claim.

[10]     I therefore find the following to be credible; that you are people who face persecution due to your involvement with the oppositional parties, namely HTP and CHP, at the hands of the state authorities.

[11]     Your oral testimony today included details regarding your involvement with HTP and CHP and the incidents you experienced with the police. You testified how you became involved with both parties and the roles and responsibilities you had.

[12]     You also describe the number of protests and rallies you attended as well as the work you did helping with referendum and election campaigns which lead to a house raid where your parent’s house was raided by the police and all of your sisters including yourself was taken into the police station and was interrogated.

[13]     You testified prior to the house raid that you experienced violent encounters with the police and were detained multiple times after protests. You also testified that you received phone calls that threatened you to stop your political engagements.

[14]     Your sister the associate claimant also testified regarding her involvement in political parties and rallies and the subsequent detainment and the house raid she also experienced.

[15]     You also provided documents in support of your testimony that you have been active members and supporters of HTP and CHP and that you have been experiencing threats and risk from the police and these documents include letters of support from your friend, father and sister, photographs of the associate claimant as she was campaigning for the referendum and a letter from Canadian centre for victims of torture.

[16]     You also submitted social media posts that were critical towards the government, the letter from your sister and your friend who was detained and interrogated after you left Turkey which describes how police were still looking for you and harassing your family members and friends to get information about you.

[17]     Your testimony and the supporting documentation all establish that you have been actively involved in the HTP and CHP and therefore have been targeted by the state authorities.

[18]     The objective documentation supports your allegations that individuals in your circumstance face persecution at the hands of state authorities and society at large.

[19]     According to the national documentation package Item 1.6, 2.1, 2.3, 13.1 and 13.3 the persecution that the HTP supporters and those who voice criticism against the government face, they face discrimination and violence.

[20]     National documentation package Item 13.1 speaks to it by stating that the anti Kurdish sentiment is high in Turkey and permissive political environment turns this sentiment into violence in some cases.

[21]     Item 13.3 describes that the anti terrorism legislation led members of the Kurdish community to be vulnerable to violence and that there are significant restrictions on their rights to freedom of expression and association as well as (inaudible), arrest and detention and persecution.

[22]     In your case it’s not that the state authorities identify you as Kurdish people but as those who are active in supporting HTP and their goals.

[23]     Item 2.3 describes the correlation between the heightened conflicts between the resurgence and how the Turkish government has been using these conflicts to justify a crackdown on Kurdish political parties, media outlets and civil society organizations.

[24]     NDP Item 1.6 and 2.3 also describe how the different laws such as anti terror and defamation laws have been used to stop political opponents as well as ordinary citizens from voicing criticism by filing criminal charges against and persecuting a wide range of individuals.

[25]     According to the national documentation package Item 2.1 during the year of 2018 the government opened investigations into thousands of individuals including minors for insulting the president and the detainees charged against anti terror laws had no substantial link to terrorism and that they were detained to silence critical voices or weaken political opposition to the ruling AKP particularly the HTP members and officials.

[26]     Specifically Item NDP Item 11.3 and 11.4 describe the lack of freedom of speech on the internet and how the government recently started to crackdown on those who post, posted critical things against the government through criminal investigation and persecutions which have affected a wide range of people from journalists and human rights activists to high school and university students and construction workers.

[27]     I therefore find that you have a well founded fear of persecution. I find that you have rebutted the presumption of state protection because the state is the agent of persecution in this case and it would be unreasonable for you to seek state protection in this case.

[28]     According to the national documentation package Item 2.1 the government continues to take limited steps to investigate, prosecute and punish members of the security forces and other officials accused of human rights abuses and that impunity for such abuses remained a problem.

[29]     In Item 2.3 it describes that the issues of corruption remains a major problem in Turkey.

[30]     Based on your personal circumstances as well as the objective country documentation l find that the adequate state protection will not be available to you as the state will be unwilling to protect you in Turkey.

[31]     As you have rebutted the presumption of state protection and since the country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country, I find that you do not have a viable internal flight alternative.

[32]     Based on the totality of evidence I find that you have established that there is a serious possibility of persecution on the convention ground namely the political opinion. I therefore find that you are Convention refugees and I accept your claims.

[33]     Thank you.

———- REASONS CONCLUDED ———-

Categories
Algeria All Countries

2020 RLLR 39

Citation: 2020 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: November 13, 2020
Panel: Julie Beauchamp 
Counsel for the Claimant(s): M. Mary Akhbari 
Country: Algeria
RPD Number: TB8-26732
ATIP Number: A-2021-00655
ATIP Pages: 000066-000070


DECISION

[1]       MEMBER: And I told the claimant I am accepting her claim, and here are my reasons.

[2]       So, the claimant, [XXX] — this is file TB8-26732 — is a citizen of Algeria and claiming refugee protection under s. 96 and s. 97(1) of the Immigration and Refugee Protection Act. As the claim involves allegation of domestic and gender-based violence, the chairperson’s guideline 4 on women refugee claimants fearing gender-related persecution was considered for the claimant and applied to the hearing and determination of this claim.

[3]       The details of this claim can be found in the Basis of Claim form, which is Exhibit 2, and as amended, found in Exhibit 2.2. The claimant alleges that she faces a serious possibility of persecution at the hands of her father and older brother. She alleges that she spent a life in Algeria being at the mercy of her father who regularly abused her, verbally, psychologically, and physically. She alleges that her father tried to stab her on two occasions, that both times he grabbed a sharp abject and came at her, but she managed to escape to her room. She alleges that she has not heard from her father since she left Algeria but fears for her life and continues to believe him to be capable of hurting or killing her, as she has disobeyed him by escaping and her father does not like to have his authority challenged.

[4]       I have considered all the evidence and I find that you are a Convention refugee and that you face a serious possibility of persecution under s. 96 of the Immigration and Refugee Protection Act on the basis of your membership in a particular social group as a woman fearing domestic violence.

[5]       With respect to your identity, I am satisfied of your persona) and national identities as a [XXX] Algerian woman and that these have been established on a balance of probabilities by a certified true copy of your passport filed at Exhibit 1, and this includes also a Canadian visa that you used to travel to Canada.

[6]       With respect to your credibility, I found you to be a credible witness, and I believe on a balance of probabilities the key allegations of your claim. You testified experiencing verbal and emotional abuse at the hands of your father in your childhood. You testified that the abuse got worse and included physical abuse after you finished school in 2005 and your father forbade you from working. You testified that your mother was also subject to frequent abuse by your father. You testified that your older brother subjected you to verbal abuse, but you testified during the hearing that you could “tolerate” him, and you felt like the one who would hurt you would be your father. You describe your father as a dangerous, illogical man with whom you had no relationship and who would frequently not talk to you. You testify in a straightforward, spontaneous, detail, and sincere manner.

[7]       I did not find that you embellished your story or exaggerated your allegations during your testimony. You provided several details beyond the parameters of your Basis of Claim thereby lending further credibility to your statements. I also note that there were no contradictions, inconsistencies, or omissions between your BOC, your testimony at the hearing, and the documentary evidence submitted.

[8]       You explained to me how you were living in an open prison, that you led a life with no goals, no purpose, with your dreams destroyed. Your father did not allow you to work or get married or have any friends. I believe what you have alleged on a balance of probabilities.

[9]       You also testified on the abuse by your father, the verbal and psychological abuse, the words he would use to call you at home, how he would constantly belittle you, and how he has attempted to severely hurt you with a sharp abject. You testified that your father’s abuse left you feeling betrayed and feeling like there was injustice for you having to go through such hardship. I believe what you have alleged on a balance of probabilities.

[10]     I had concerns about your departure from Algeria. You told me that your father did not know that you had applied for a passport and that you were hiding this passport in your room. You told your mother why you were leaving Algeria, to get away from mistreatment, and that in order for you to do so, your mother had asked your brother to come with her for a [XXX] so that the house would be empty while your father was at work. I accept this explanation on a balance of probabilities.

 [11]    I also had concerns about your delay in claiming in Canada. However, the evidence provided in your testimony and in your BOC satisfy me in terms of your efforts in seeking counsel and juggling the legal aid system in Ontario. You did initially file your Basis of Claim form with the assistance of your brother before retaining counsel. I also accept this explanation on a balance of probabilities, and I find that the credibility concerns by your delay in claiming in Canada are outweighed by your credibility regarding the violence and the threats perpetrated against you.

[12]     As such, I accept on a balance of probabilities what you have alleged as credible, and I also find that your actions reflected a subjective fear.

[13]     With respect to the objective basis now, your allegations are consistent with the objective documentary evidence concerning gender-related violence in Algeria.

[14]     There exist a societal atmosphere in Algeria that contributes to the tolerance of domestic violence and silence victims. That is found at item 5.3 of Exhibit 3.

[15]     Human Rights Watch has stated that the shortcomings of the Algerian government’s response to the problem of domestic violence include a lack of services for domestic violence, particularly shelters, a lack of measures for the prevention of violence, such as use of educational curricular to modify discriminatory social and cultural patterns of behaviours as well as derogatory gender stereotypes, and insufficient protection from abusers, such as restraining orders and inadequate response from law enforcement. Domestic violence was made a criminal offence in Algeria under law number 15-19, but the law has serious shortcomings, as the scope of the definition of domestic violence does not include ail individuals. It is intended to apply to both current and former spouses but does not extend to relatives, unmarried couples, or other household members. And also, there is no overarching legal framework governing violence against women in Algeria. That is found at item 5.2 of Exhibit 3.

[16]     Also, in item 5.3, domestic violence survivors can find themselves trapped, not only because of economic dependence on their abusers, but also because of social barriers which included pressure to preserve the family at all costs, stigma, and shame for their family if women leave or report abuse.

[17]     Counsel’s disclosure at Exhibit 6 included many reports about the domestic violence crisis in Algeria and the extent to which many women are killed by members of their own families.

[18]     Accordingly, I find your fear with respect to the violence at the hands of your father to be objectively well-founded.

[19]     With respect to state protection, you said that you never went to the police because you felt that they would not protect you, and that it would result in you ending up on the street, as there are no shelters. You added that, based on what you know, the police would call your father and force you and him to reconcile.

[20]     The documentary evidence provides that there are significant gaps in Algeria’s legal framework, and the evidence also supports what you have testified about. Frequently, when a woman has enough courage to approach the police to denounce the violence, the officers try to deciduate (sic) her from pressing charges on account of it being a familiar matter, or are dismissive in their response. As previously discussed, the law offers the possibility for the offender to escape punishment or benefit from a reduced sentence. This has the effect of increasing the victim’s vulnerability to social pressure to pardon her abuser, and it might lead to her being dissuaded from seeking court remedies for domestic violence. In addition, the law relies heavily on an assessment of physical incapacitation — think I said it right — in order to decide on sentencing without offering guidelines for doctors on how to make a determination of incapacitation in domestic violence cases.

[21]     So, in light of this evidence, I conclude that it would be unreasonable for you to seek protection from the authorities in Algeria, and as such, I find there is no adequate state protection.

[22]     Now, lastly, with respect to an internal flight alternative, you made it clear that the main problem in your relocation elsewhere in Algeria was not that your father would be able to find you anywhere you go, the problem is that you would have to live in Algeria as a single woman with no family support. You testified not being in contact with other family members living outside the capital, and that you had actually tried one time to reach out to your aunt for help because she lives in the desert of [XXX], but that she refused to help you. You have no family support available to you, and you explained that you had not worked since 2005, given that you were prohibited by your father from doing so. While I do note that you have a job in Canada, I will acknowledge the Canadian context and society to be different.

[23]     According to the objective evidence, women who try to relocate and live by themselves are mistreated in their new communities, and they expose themselves to gender-related risks, as they are seen as having poor morals. In addition, they usually face many challenges, including challenges in securing jobs and housing. To successfully relocate, women who are not accompanied by males need a strong network of relatives and friends in the new location, which you do not have. Often women running away from domestic violence end up living by themselves, and that is not something that can be done in Algeria. You are supposed to run to a family member.

[24]     So, based on this objective evidence, I find that the test for internal flight alternative fails on the second prong. I conclude that you do not have a viable internal flight alternative in Algeria.

[25]     In conclusion, after assessing all of the evidence, your testimony, objective evidence, your persona) evidence, I find that you would face a serious possibility of persecution should you return to Algeria based on your membership in a particular social group as a woman fleeing domestic violence and I therefore accept your claim.

[26]     That is it. Thank you, everyone.

[27]     And thank you for your patience. And congratulations and wishing you an excellent weekend.

[28]     COUNSEL: Thank you. Bye-bye.

[29]     CLAIMANT (without interpreter): Okay, thank you. Bye.

[30]     MEMBER: Madam [inaudible] —

[31]     INTERPRETER: Bye-bye.

[32]     COUNSEL: Thank you, everyone. Bye, everyone. Have a great weekend.

[33]     MEMBER: Thank you. You —

REASONS CONCLUDED