Category: All Countries

2020 RLLR 64

Citation: 2020 RLLR 64
Tribunal: Refugee Protection Division
Date of Decision: February 26, 2020
Panel: Angelina Guarino
Counsel for the Claimant(s): Eric Freedman
Country: Nigeria
RPD Number: MB8-01156
Associated RPD Number(s): MB8-01171, MB8-01221
ATIP Number: A-2021-00800
ATIP Pages: 000030-000037

REASONS FOR DECISION

[1] The principal claimant, [XXX], his wife, [XXX] (the female claimant), and their minor child, [XXX] (the minor claimant), are citizens of Nigeria. They are claiming refugee protection in Canada under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2] The panel appointed the principal claimant as the designated representative of his minor child, [XXX].

[3] The wife and minor child are basing their refugee protection claims on the principal claimant’s written account in the Basis of Claim Form (BOC Form).^[1]

ALLEGATIONS

[4] The principal claimant alleges that he fears his deceased father’s third wife, named [XXX], as well as his police officer half-brother, named [XXX], born from that relationship, who threatened to kill the male claimant and go after his family after he refused to give them the major share of the inheritance from his father.

[5] According to the will, the inheritance was to be divided equally between all the children of the male claimant’s father, and [XXX] request was very poorly received by the other heirs. Following their refusal, [XXX] threatened to kill the claimant and his brothers and sisters.

[6] The male claimant also alleges that two of his brothers were killed after receiving death threats from [XXX]. According to the male claimant, it was [XXX] who ensured that her threats were carried out. She was questioned by the police after the death of the male claimant’s brothers because people had witnessed her uttering threats. However, the investigation quickly ended as her son [XXX], a [XXX], intervened to have her released. The male claimant alleges that [XXX] has many influential contacts among the Nigerian authorities and that he is involved in shady dealings.

[7] Consequently, the male claimant fears that he will be the next victim of violence at the hands of [XXX] and her son owing to this conflict, especially since the issue of the inheritance has not yet been resolved and the other heirs do not want to agree to an unequal split.

DETERMINATION

[8] The panel concludes that the refugee protection claimants are “persons in need of protection” for the reasons set out below.

ANALYSIS

Identity

[9] The panel is satisfied as to the refugee protection claimants’ identity, which was established, on a balance of probabilities, by means of the testimony of the adult claimants and by the submission on the record of the certified true copy of their respective Nigerian passports.^[2]

Analysis under paragraph 97(1)(b)

[10] In his BOC Form and during the hearing, the principal claimant stated that he feared being mistreated or even killed because of the conflict with his father’s wife and with his half-brother [XXX], a conflict involving the estate of his deceased father. He also feared that his agents of harm could go after members of his nuclear family, as the threats targeted them as well. Refugee protection claims involving a physical risk from family members in Nigeria because of an inheritance fall under subsection 97(1) of the IRPA since there is no nexus to the Convention.^[3]

[11] It is also clear that, in relation to the claimants’ fears toward Nigeria, this refugee protection claim does not involve any danger of the claimants’ being subjected to a danger of torture within the meaning of paragraph 97(1)(a) of the IRPA.

[12] The panel has therefore analyzed this refugee protection claim under paragraph 97(1)(b) of the IRPA, that is, whether the claimants would be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they were to return to Nigeria.

Credibility

[13] The male claimant gave frank and sincere testimony before the panel about the conflict between [XXX] his half-brother [XXX], and himself, regarding the inheritance left by his deceased father.

[14] First, the male claimant provided detailed information about the way the inheritance was split between his father’s three wives. Subsequently, he explained the reasons that led [XXX] to insist on an unequal split–according to her, she was his father’s favourite wife–and stated that she had demonstrated her desire to appropriate the largest share of the inheritance by not hesitating to threaten the other heirs. The male claimant provided details on relationship dynamics within his family and the difficulty he had getting along with his half-brothers on his father’s side.

[15] The male claimant explained how the threats had escalated over time, with the murder of his two brothers. The male claimant also described the various means he had used to try to resolve the conflict. He testified that he had asked the police to intervene following the murder of his brothers, but said that the investigation had been sabotaged by the intervention of his half-brother, the [XXX]. The male claimant also asked the other heirs to agree to [XXX] demands in order to end the conflict, but they refused. The male claimant indicated that he had finally left the inheritance under the management of a company. This implies not only that it became more difficult for [XXX] and the claimant’s half-brother to appropriate the inheritance, but also that their desire for revenge grew.

[16] The male claimant testified that, on [XXX] 2017, he moved with his wife and child to the home of an uncle in Ogun State, as he felt that his life was in danger in Lagos. Nevertheless, he was found by men sent by [XXX] and his half-brother [XXX]. On [XXX] 2017, the claimants were informed by neighbours that some men had been asking about them, and it was because of this suspicious visit that the claimants decided to leave Nigeria for good.

[17] The principal claimant spontaneously answered every question he was asked. His answers were consistent not only with his written account but also with the various affidavits submitted in support of his claim.^[4]

[18] In addition to his credible testimony, the principal claimant provided several pieces of evidence to corroborate his allegations. He submitted into evidence his father’s will,^[5] his brothers’ death certificates^[6] and posters announcing their funerals,^[7] the contract stipulating that the inheritance is being managed by a management company,^[8] as well as evidence that his half-brother [XXX] is a [XXX].^[9] The male claimant’s attempts to obtain protection from the Nigerian authorities following the murder of his brothers are corroborated by a police report.^[10]

[19] The panel notes that the claimants arrived in the United States on [XXX] 2017. They finally left that country on [XXX] 2018. The principal claimant specified that he did not claim asylum because of the hostile climate toward asylum seekers in the United States. The panel considers this an unreasonable explanation for the failure to claim asylum. Nevertheless, as the claimants had valid status and given the duration of their stay, which lasted a few months, the panel is of the opinion that this behaviour is not determinative to undermine the credibility of the alleged facts taken as a whole.

Objective basis of the fear

[20] The objective documentation on Nigeria reports that violence related to inheritance issues is common. Indeed, in a European Union report, the Director of the Initiative for Equal Rights in Nigeria states that this is a major problem in Nigeria and that quarrels can happen between several family members; the violence that follows can go as far as killing.^[11]

State protection

[21] Objective documentation indicates that the Nigeria Police Force is perceived as corrupt and ineffective.^[12] The reports also highlight problems in the judicial system, which is reported to be short-staffed, underfunded, ineffective, subject to political intervention, corrupt, and lacking training and resources.^[13]

[22] The panel also notes that the male claimant testified that he reported some of the incidents to the police. He submitted a police report^[14] into evidence and testified about the time he went to file a complaint. He explained that the police officers questioned [XXX] but that they quickly released her. The male claimant thinks that [XXX] son, [XXX], himself a [XXX], may have bribed the police. The male claimant explained that he knew about his half-brother’s illegal trafficking in cars. The half-brother told the male claimant about his activities and influence within the police when he threatened him.

[23] For all these reasons, the panel is of the opinion that the male claimant has established, through clear and convincing evidence, that he would not have access to adequate state protection.

Internal flight alternative

[24] The panel considered the Jurisprudential Guide dealing with the various internal flight alternatives in major cities in southern and central Nigeria for claimants fleeing non-state actors.^[15] Having considered the profile of the male claimant’s agents of harm, the analysis in the Guide is not applicable in this case.

[25] The panel questioned the male claimant about the possibility of relocating to Port Harcourt in order to escape [XXX] and his half-brother [XXX]. Asked to explain why [XXX] and his half-brother would want to find him in the proposed IFA, the male claimant stated that they are motivated by their desire for revenge as well as by the fact that the male claimant is the last male heir standing in the way of management of the inheritance passing into the hands of his half-brother [XXX]. Asked about the ability of [XXX] and his half-brother to find him in Port Harcourt, the male claimant answered that, regardless of where he went in Nigeria, his agents of harm would be able to find him because of his half-brother’s duties as a [XXX] and his access to personal information banks. The male claimant’s agents of harm found him when he moved to his uncle’s home with his family, which demonstrates a strong and sustained interest in him. The principal claimant added that his agents of harm are capable of committing very violent acts, as they have demonstrated with the murder of his brothers.

[26] The panel takes note of the male claimant’s testimony regarding the means at the disposal of his agents of harm. The panel has also taken into account their potential interest in finding the claimant with a view to eliminating him from the line of inheritance and taking revenge on him for standing in the way of their demands as well as for having filed a complaint with the police against [XXX] regarding the murder of his brothers.

[27] Consequently, the panel is of the opinion that, on a balance of probabilities, the claimants face a risk to their lives or a risk of cruel and unusual treatment or punishment throughout Nigeria.

[28] In light of the above and taking all the evidence into account, the panel is of the opinion that the claimants have established that, should they return to Nigeria, they would be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment within the meaning of subsection 97(1) of the IRPA.

CONCLUSION

[29] For all these reasons, the panel concludes that the refugee protection claimants are “persons in need of protection” and allows their refugee protection claim under paragraph 97(1)(b) of the IRPA.

^[1] Document 1 — Basis of Claim Form.

^[2] Document 1 — Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada, formerly Citizenship and Immigration Canada.

^[3] Njeru v. Canada (Citizenship and Immigration) (F.C., No. IMM-2258-09), Russell, December 16, 2009, 2009 FC 1281; Kang, Hardip Kaur v. MC.I. (F.C., No. IMM-775-05), Martineau, August 18, 2005, 2005 FC 1128.

^[4] Document 4 — P-20 to P-23.

^[5] Document 4 — P-13.

^[6] Document 4 — P-15 and P-18.

^[7] Document 4 — P-14.

^[8] Document 4 — P-23.

^[9] Document 5 — P-24: Nigerian [XXX] ID card for [XXX].

^[10] Document 4 — P-16 and P-17.

^[11] Document 3 — National Documentation Package on Nigeria, November 29, 2019; Tab 1.3: European Union, European Asylum Support Office, August 2017, EASO COI Meeting Report: Nigeria.

^[12] Document 3, Tab 1.4: European Union, European Asylum Support Office, June 2017, EASO Country of Origin Information Report: Nigeria. Country Focus.
Document 3, Tab 16.2: United Kingdom, Home Office, 2016, Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation. Version 2.0.

^[13] Document 3, Tab 1.4: European Union, European Asylum Support Office, June 2017, EASO Country of Origin Information Report: Nigeria. Country Focus, p. 29.

^[14] Supra footnote 10.

^[15] Jurisprudential Guide, decision TB7-19851, May 17, 2018.

All Countries Uganda

2020 RLLR 63

Citation: 2020 RLLR 63
Tribunal: Refugee Protection Division
Date of Decision: October 13, 2020
Panel: S. Chauhan
Counsel for the Claimant(s): Juliette Ukpabi
Country: Uganda
RPD Number: VC0-02644
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000020-000029

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of [XXX] (the “claimant”), who is a citizen of Uganda, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act”).^[1]

[2] In rendering it’s reasons, the panel has considered the Chairperson’s Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE).

ALLEGATIONS

[3] The following is a brief synopsis put forth by the claimant in her Basis of Claim (BOC) form.^[2]

[4] She fears persecution at the hands of the society, her husband, and the government of Uganda due to her sexual orientation.

[5] The claimant is a bisexual woman. She first had a same-sex relationship at the age of 17 in 1996. Her mother suspected her of being a lesbian, hence the claimant was enrolled in a religious school. In 2002, she joined [XXX] University and met her girlfriend, [XXX]. They began a serious relationship, which continues to date. The claimant and [XXX] were suspended from university in the final year after being caught in sexual activities on the campus.

[6] The claimant married her husband on [XXX], 2009 due to family and societal pressure. She gave birth to her daughter in 2013. However, her husband mistreated her and used to sexually abuse her. She tried to leave him many times but every time he would find her and compel her to come back. In the meantime, the claimant continued her relationship with [XXX].

[7] On [XXX], 2017, the claimant’s husband caught her in an intimate position with [XXX] and beat her up. The neighbours came to know about the claimant’s sexual orientation and told her husband that they do not want her living in that neighbourhood as she will be a bad influence on their children. The next day, on [XXX], 2017, the claimant’s husband took all the evidence about the claimant’s sexual activities from her phone and presented it to the village elders. She was locked up in prison. However, the claimant’s brother-in-law, who is a [XXX], helped her escape the prison on [XXX], 2017.

[8] The claimant went into hiding with the assistance of her sister and [XXX]. The claimant’s husband and her community members, meanwhile, continued to search for her.

[9] The claimant was able to escape Uganda with the help of an agent on [XXX], 2019. She reached Canada on [XXX], 2019 and filed for refugee protection.

DETERMINATION

[10] The panel finds that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group for the following reasons.

ANALYSIS

Identity

[11] The claimant did not have a passport on her when she reached Toronto on [XXX], 2019. The panel asked the claimant if she had a passport issued to her by any country. She stated that she has her original Ugandan passport with her at the hearing. A copy of this passport is marked Exhibit 5. She was asked if she travelled from Uganda to Canada using this passport. The claimant explained that she travelled from Uganda to [XXX] using this passport. When she reached [XXX], the agent who was assisting her in her escape, then took her passport from her and gave her another passport with her picture but with a different name and date of birth on it. That passport had a visa to Canada on it. When they reached Toronto, the agent took all the documents from her and left her alone at the airport.

[12] The claimant was then asked how she has her passport on her if the agent took her passport from her. She stated that he returned to Uganda and handed her original passport to her sister. Her sister then couriered the passport to her (claimant) in Canada. The claimant showed the delivery receipt and envelope used to mail the passport using the DHL courier service to the panel.

[13] Based on the claimant’s reasonable explanation, as well as the documentary evidence produced at the hearing, the panel is satisfied with the claimant’s identity as a Ugandan national and accepts that she is who she says she is. Specifically, the panel finds that the claimant’s identity as a national of Uganda has been established, on a balance of probabilities,

based on her sworn statement and copies of her Ugandan National Identification Card^[3] and Ugandan passport on file.

Credibility

[14] At a Refugee Protection Division (RPD) hearing, the presumption before the panel is that a claimant’s testimony is true; however, this can be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions and undetailed testimony. However, this was not the case here. The claimant testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before the panel. She did not appear to embellish her testimony at any point.

[15] The claimant explained that she has always been attracted to men and women alike, and this is how she was born. It is natural for her to feel attracted to both men and women. She stated she will feel suffocated if her ability to express herself sexually is taken away from her. When she started her relationship with [XXX], she felt completely satisfied in that relationship, which is why it has lasted this long and is still going strong.

[16] The panel canvassed her about her relationship with her husband. The claimant explained that she was born into a Muslim family and that her father is a very religious person. When her parents discovered her bisexuality, they forced her to marry her husband, even though she did not want to marry him. Her father then locked her up in a garage for a week until the claimant relented and agreed to marry her husband. However, she has never felt attracted to him because he has been abusing her since they got married. When her husband discovered her in an intimate position with [XXX] on [XXX], 2017, he beat her up and took her to the village elders, who then put her in jail after registering a case of homosexuality against her. She has been separated from him since then and has no plans to ever live with him again because he is a heartless man and is still looking for her so that he could put her in jail. When asked how she knows that her husband is still looking for her, the claimant stated that her sister gives her updates whenever she talks to her. The claimant stated that the police is also on the lookout for her since there is a case pending against her and because she escaped from jail.

[17] The claimant was asked where she had lived after escaping jail in Uganda. She stated that she went into hiding in different villages and towns with the help of her sister and her partner, [XXX]. They were the ones who would provide her with everything she needed while in hiding, including taking care of her children. [XXX] and her sister arranged for a travel agent to help her escape from Uganda.

[18] The claimant has provided documentary evidence to support her claim. The panel has no reason to doubt the genuineness of these documents, which form Exhibit 4, and accepts them as genuine. In doing so, the panel finds that this evidence corroborates her claim as a bisexual woman. The documentary evidence contains the following:

Letter of support from claimant’s former roommate at the university;
Letter of support from claimant’s brother-in-law, who is a [XXX] and helped her escape from prison;
Affidavit from claimant’s sister, affirming the events faced by the claimant;
Affidavit from [XXX], affirming her relationship with the claimant and the events faced by them in Uganda;
Claimant’s marriage certificate;
Claimant’s proof of enrollment at the [XXX] University;
Letter of support from Centre for Newcomers’ in Canada, supporting the claimant as a member of the LGBTQ community;
Letter from [XXX] Church in Canada affirming claimant’s sexual orientation;
Claimant’s pictures with [XXX]; and
Claimant’s text messages with [XXX].

[19] Based on the claimant’s straight-forward and frank testimony, as well as the corroborative evidence discussed above, the panel finds her to be a credible witness and accepts her allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, the panel accepts that she is a bisexual woman, that the police arrested her on [XXX], 2017 following the complaint by her husband to the village elders regarding her sexual activities; that the claimant’s brother-in-law helped her escape from jail; that she went into hiding with the help of [XXX] and her sister, and that the police and her husband are now looking for her. The panel also accepts that the claimant has a subjective fear of returning to Uganda on account of her sexual orientation.

Well-founded fear of persecution and Risk of harm

[20] The persecution that the claimant faces has a nexus to one of the five Convention grounds, that of membership in a particular social group, i.e. her sexual orientation as a bisexual, and therefore this claim is assessed under section 96 of the Act.

[21] The panel finds that the claimant has established that she has a well-founded fear of persecution due to her bisexuality, which is supported by objective evidence. The documentary evidence shows a high level of societal homophobia in Uganda and also that same-sex relationships are illegal in that country. The country documentation is consistent with the claimant’s past experiences and confirms her forward-looking fear of returning to Uganda as discussed below.

The objective evidence shows that homosexuality is a crime in Uganda.^[4] Section 145 and 146 of the Ugandan Penal Code specify that any person acting against the order of nature and committing unnatural offences shall be imprisoned from seven years to life. Section 148 regarding indecent practices states that:

[22] Any person who, whether in public or in private, commits any act of gross indecency with another person or procures another person to commit any act of gross indecency with him or her or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or in private, commits an offence and is liable to imprisonment for seven years.^[5]

[23] Uganda’s openly hostile rhetoric has aggravated discrimination and violence against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. Several cases of people subjected to forced anal examinations to prove engagement in proscribed

consensual same-sex acts have been documented.^[6]

Statements by Ugandan officials have further fueled the sentiment of the public and authorities against the LGBTI community.^[7]

Uganda’s President, Yoweri Museveni, 2017: “Africans here, we know a few people who are ‘rumoured’ to be homosexuals, even in history we had some few being rumoured, but you cannot stand up here and say “I am a homosexual.” People will not like it. So whenever we talk to our partners in other parts of the world [we say]: “please that’s a private matter, you leave it”. But no, they want to impose it on you… that I should stand up and say, ‘oh yeah, homosexuals, oh yeah.’”

Minister of Health for General Duties Sarah Opendi, 2017: “Homosexuality remains an illegally activity, according to our laws and, therefore […] we cannot be seen doing the opposite […] the Global Fund money is supposed to help in the fight against malaria and other diseases not buying lubricants for homosexuals.”

Minister of Ethics and Integrity, Simon Lokodo, 2017 (variously): “Homosexuality is not allowed and completely unacceptable in Uganda. […] We don’t and can’t allow it. LGBT activities are already banned and criminalised in this country. So popularising it is only committing a crime”. “It’s true I ordered the police to stop and shut down all the gay pride events. No gay gathering and promotion can be allowed in Uganda. We can’t tolerate it at all. […] We know they are trying to recroit and promote homosexuality secretly. But it’s worse to attempt to stand and exhibit it in public arena. This is totally unacceptable. Never in Uganda.”^[8]

Amnesty International, in its Human Rights Review of 2019 in Uganda noted that:

In May, police acting on orders from the Minister of Ethics and Integrity raided and stopped an event organized by NGOs, Chapter Four Uganda and Sexual Minorities Uganda, to commemorate the International Day Against Homophobia and Transphobia. Between July and October four LGBTI people were killed in the wake of heightened anti-LGBTI sentiments being expressed by political leaders. Those killed included Brian Wassa, a gay paralegal who died on 5 October of a brain hemorrhage as a result of head injuries from an attack by unknown assailants the previous day at his home in Jinja town in the Eastern region. Uganda investigative authorities have not publicly commented on the killing. A transwoman from Gomba district, and a gay man from Kayunga district (both in the Central region) were also killed in attacks by unidentified assailants. In October, the police arrested 16 LGBTI activists and subjected them to forced anal examinations after the Ethics and Integrity Minister announced plans to introduce the death penalty for consensual same-sex sexual activity which is already punishable by life imprisonment. In November, the police charged 67 out of 125 people, arrested at a bar popular with LGBTI people, with “common nuisance”, punishable by imprisonment of up to one year. Their court case was ongoing at the end of the year, and they were required to report to the police each week for their bail conditions to be reviewed.^[9]

[24] Human Rights Awareness and Promotion Forum (HRAPF),^[10] in its report on human rights abuses and violations against the LGBTI community, notes that:

Uganda’s laws and policies do not specifically protect LGBT persons against violations within the criminal justice system,
There is a trend towards human rights-based detention and imprisonment practices embraced by both the police and the prisons,
LGBT persons in police detention suffer violations attributable mainly to their sexual orientation, and
LGBT persons in prison face discrimination and abuse of their dignity.

[25] Therefore, based on all the evidence before it, the panel finds that the claimant faces more than a mere possibility of persecution at the hands of state and non-state actors in Uganda by way of her membership in a particular social group, namely a bisexual person. Her fears of persecution in her country are indeed well-founded.

State protection and Internal flight alternative (IFA)

[26] The panel finds that state protection would not be reasonably forthcoming to the claimant as one of the agents of persecution is the state. The laws prohibiting homosexuality apply throughout the country and so do the laws that fail to protect homosexuals from discrimination and persecution. Therefore, the panel finds that the presumption of state protection has been rebutted.

[27] The country condition documents indicate that the high level of discrimination against homosexuals exists throughout the country. As such, the panel finds that there is no viable IFA available to the claimant in this case in Uganda

CONCLUSION

[28] Based on the analysis above, the panel concludes that the claimant is a Convention refugee as per section 96 of the Act. Accordingly, her claim is accepted.

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

^[2] Exhibit 2.

^[3] Exhibit 4.

^[4] Exhibit 3, National Documentation Package (NDP), Uganda, September 30, 2020, Item 6.2.

^[5] Exhibit 3, NDP, Item 6.2.

^[6] Ibid.

^[7] Ibid.

^[8] Ibid.

^[9] Exhibit 3, NDP, Item 2.2.

^[10] Exhibit 3, NDP, Item 6.5.

All Countries Egypt

2020 RLLR 62

Citation: 2020 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: November 5, 2020
Panel: Isis Marianne van Loon
Counsel for the Claimant(s): Thaer Abuelhaija
Country: Egypt
RPD Number: VB9-06930
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000011-000019

REASONS FOR DECISION

INTRODUCTION

[1] [XXX] (the “claimant”) seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).^[1]

Possible Exclusion

[2] The Minister was notified on August 5, 2020 of a possible Article 1F exclusion issue, based on the claimant’s disclosure of Egyptian court documents listing him as a terrorist. The Minister declined to intervene. The claimant could be excluded under either Article 1F(a) or Article 1F(c) if he committed crimes of terrorism or was complicit in crimes of terrorism.

[3] The claimant provided an Egyptian government court decree and orders, issued December 10, 2017 and April 26, 2018, in which the Muslim Brotherhood (MB) is listed as a terrorist organization and he is listed, among many other people, by name as a terrorist (Exhibit 4). While there are many allegations made by the government against the people named on this list, including references to terrorist schemes, there is no evidence to support the conclusion of the court on whatever evidence it may have collected.

[4] I considered the claimants credibility, discussed later in my analysis, and found him to be a credible witness. He denied any involvement with the MB or any other terrorist organization. He testified that “I wasn’t a member of any of the MB nor any other organization, however, I was happy with the change” and explained that he supported people who he believed were good candidates. The claimant testified that he did not contribute financially either to the revolution or to the MB.

[5] The claimant also stated that anybody who supported the revolution was considered a terrorist by the current government. Objective country documentary evidence supports his statement. According to National Documentation Package (NDP) 2.7^[2] the government has repressed a “wide range of Egyptians whose complicity in terrorist activities is highly questionable”. The state’s war on terror has “largely been a pretext to legitimize the ousting of the Muslim Brotherhood’s former hold on the reins of government and to solidify the position of the post-coup leadership by purging real and imagined followers of the organization”.

[6] There is no evidence before me that the claimant ever committed crimes of terrorism, that he was a member of the MB or any other alleged terrorist organization, or that he was complicit in any alleged crimes of terrorism. Therefore, I am satisfied that the issue of exclusion under either 1F(a) or 1F(c) does not apply in this case.

ALLEGATIONS

[7] The claimant’s allegations are set out in his Basis of Claim Form and in his testimony. The following is a brief summary;

[8] The claimant fears persecution by the Egyptian government on the basis of his real and imputed political opinion opposing the current regime.

DETERMINATION

[9] I find that the claimant is a Convention refugee as he has established a well-founded fear of persecution based on a Convention ground, namely, real and imputed political opinion.

ANALYSIS

Identity

[10] I find that the claimant’s identity as a national of Egypt is established by his testimony and supporting documentation filed including a certified true copy of his passport in Exhibit 1.

Credibility

[11] The presumption before me is that the claimant’s testimony is true; however; this can be rebutted in appropriate circumstances, such as inconsistencies, contradictions, omissions and undetailed testimony.

[12] The claimant provided detailed testimony with respect to his background, the origins of his political opinion and support for civilian as opposed to military governments dating to the revolution of 1952, when he was seven years old. He dearly and consistently stated that he believes in civilian run, democratic governments that support human rights.

[13] There were no relevant inconsistencies in the claimant’s testimony or contradictions between his testimony and the other evidence before me. He did not appear to embellish his description of events and actions, even when it might have appeared favourable to his claim. I found the claimant to be a credible witness and therefore believe what he alleged in support of his claim.

Nexus (96)/grounds (97(1))

[14] I find that the persecution the claimant faces has a nexus to one of the five convention grounds, that of political opinion, both real and imputed, and therefore this claim will be assessed under S 96.

Weil founded fear

[15] In order to be considered a Convention Refugee a claimant must demonstrate that they have a well-founded fear of persecution which includes both a subjective fear and an objective basis for that fear.

[16] Based on the claimant’s testimony and supporting documents and the country condition documents I find that that he has a well-founded fear of persecution for the following reasons:

Subjective Fear

[17] The claimant is an [XXX], and he founded his [XXX] in his hometown in 1986. He supported the 2011 revolution in Egypt, which he stated arose when people opposed police brutality, corruption, and the lack of freedom and human rights.

[18] The claimant described his support for civilian rule, and the hope that he had after the 2011 revolution and subsequent democratic election in June of 2012 that installed Dr. Morsi as

leader. Although he was not an activist, as the [XXX] of a [XXX] in his hometown, he was a

respected [XXX] who shared his opinion freely with others.

[19] The claimant said that the former government continued to interfere with the Morsi government and in June of 2013 it staged a military coup. Under the new regime anyone suspected of supporting the 2011 revolution and elections of 2012 came under scrutiny. The claimant’s [XXX] was targeted and forcibly taken over by the new regime in 2014. On [XXX] 2015, fearing for his safety and hoping that over time things would calm down so that he could return, he left Egypt to live with various family members around the world.

[20] Tired, and running out of funds he returned to Egypt after [XXX] months on [XXX], 2017. However, on [XXX], 2017 he learned that he was being accused of being a terrorist in a court decree. He left Egypt the next day and never returned.

[21] The claimant stayed with various family members on visitor’s visas in Malaysia, Saudi Arabia and the USA. He was living with his son in the USA in 2019 when he attempted to renew his Egyptian passport which was due to expire in [XXX] 2020. He paid the fee and submitted his application and waited four months only to be informed by Egyptian authorities that his passport would not be renewed. Fearing he was soon to be abroad with an expired passport and that his life was in danger if he was returned to Egypt, he decided to claim asylum. Having read President Trump’s tweets in support of Al Sisi, he feared claiming asylum in the USA. He had a daughter in Canada, and after discussion with his family he crossed into Canada in [XXX] of 2019 to claim asylum.

[22] I find that through his actions, his testimony, and in light of the country condition documents discussed below, the claimant has adduced sufficient credible evidence to establish that he has a subjective fear of persecution in Egypt

Objective Basis

[23] The US Department of State reports that there are significant human rights issues in Egypt including unlawful or arbitrary killings, forced disappearances, torture, harsh and life threatening prison conditions, political prisoners, the worst forms of restrictions on free expression, as well as substantial inference with peaceful assembly and freedom of association, among other human rights issues. Furthermore, the government’s lack of support for the investigation and prosecution of human rights abuses contributed to a culture of impunity.^[3]

[24] The Egyptian government targets those they perceive as opponents. Since the overthrow of Morsi, hundreds of MB members and supporters have been put on trial and given harsh sentences. Human Rights Watch has repeatedly criticized the lack of fair trials. As of 2016, as many as 40,000 people were detained for political reasons, most of them for real or suspected links to the MB.^[4]

[25] The country documents show that this mistreatment of real as well as perceived opposition supporters has continued. NDP 2.2 states that the authorities resorted to a range of repressive measures against protesters and perceived dissidents, including enforced disappearance, mass arrests, torture and other ill-treatment, excessive use of force and severe probation measures, particularly after protests against the President on 20 September [2019]. Constitutional amendments expanded the role of military courts in prosecuting civilians and undermined the independence of the judiciary.^[5]

[26] The mistreatment that both real and perceived opponents to the regime risk rises, in my opinion, to the level of persecution.

[27] I am satisfied that the claimant, who clearly and repeatedly expressed his support for democracy and human rights and condemned the military coup, holds a genuine political opinion against the current regime. I am satisfied that the authorities perceive him as having a political opinion in opposition to them, and that this is reflected in their inclusion of the claimant on a list of terrorists in the court documents in Exhibit 4.

[28] Based on all of the evidence before me, I find that the claimant would face a serious possibility of persecution by the state if he were to return to Egypt.

State Protection

[29] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens.

[30] In this case, the agent of persecution is the state, and the persecution the claimant would face if returned to Egypt is at the hands of the authorities. Accordingly, I find there is no state protection available to the claimant.

Internal flight alternative (IFA)

[31] Internal flight alternative arises when a claimant, who otherwise meets all the elements of the definition of a Convention refugee in his or her home area of the country, nevertheless is not a Convention refugee person in need of protection because the person can live safely elsewhere in that country.

[32] The test for a viable IFA is two-pronged:

[33] The Board must be satisfied on a balance of probabilities that

The claimants would not face a serious possibility of persecution (section 96) or be subjected personally to a danger of torture, or a risk to life or a risk of cruel and unusual treatment or punishment (section 97) in the part of the country to which the panel finds an IFA exists, and
1. Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him or her to seek refuge there.^[6]

First prong

[34] The state of Egypt is the agent of harm, and it is in control of all its territories. Therefore, I find that the claimant faces a serious possibility of persecution throughout the entire country. I find there is no IFA for the claimant in Egypt

CONCLUSION

[35] I find that there is a serious possibility that the claimant would be persecuted upon his return to Egypt due to his real and imputed political opinion.

[36] Based on the totality of the evidence, I conclude that the claimant is a convention refugee. Accordingly, I accept his claim.

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

^[2] Exhibit 3, National Documentation Package, Egypt, 30 October 2020, tab 2.7: Egypt’s failing “War on Terror”.

Heinrich-Boll-Stiftung. Helena Burgrova. February 2017.

^[3] Exhibit 3, National Documentation Package, Egypt, 30 October 2020, tab 2.1: Egypt. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

^[4] Exhibit 3, National Documentation Package, Egypt, 30 October 2020, tab 4.5: Treatment of members of the Muslim Brotherhood, including leaders, returnee members and suspected members, by authorities, following the removal of President Mohamed Morsi (2014-May 2017). Immigration and Refugee Board of Canada. 12 June 2017. EGY105804.E.

^[5] Exhibit 3, National Documentation Package, Egypt, 30 October 2020, tab 2.2: Egypt. Human Rights in the Middle East and North Africa: Review of 2019. Amnesty International. 18 February 2020. MDE 01/1357/2020.

^[6] Rasaratnam v. Canada (MEI), [1992] I FC 706 (CA)

All Countries Haiti

2020 RLLR 61

Citation: 2020 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2020
Panel: R. Jackson
Counsel for the Claimant(s): Tina Hlimi
Country: Haiti
RPD Number: TB8-25759
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000008-000010

DECISION

[1] MEMBER: So, I am just going to read you your Decision now. It is a positive decision. So, if everybody could just mute their microphone, I am going to read it to you, okay?

[2] I have considered your testimony and the other evidence in the case, and I am ready to render my Decision orally. These are the reasons for the Decision in the claim of [XXX], who claims to be a Citizen of Haiti and is claiming refugee protection pursuant to 96 and 97(1) of the Immigration and Refugee Protection Act or IRPA or the Act.

[3] You alleged that in your role in the [XXX] you made some enemies. There were two individuals who were for revenge upon you. One of them wishes to personally harm you, and the other has hired a gang to kill you. You fear you will be killed should you return to Haiti. I find on a balance of probabilities that you would be subjected personally to a risk to your life should you return to Haiti for the following reasons:

[4] I find that your identity as the national of Haiti is established by the documents provided, including copies of your passport and birth certificate.

[5] To establish your status as a Convention Refugee or as a person in need of protection, you had to show that there was a serious possibility that you will be persecuted or that you will be subjected on a balance of probabilities to a risk to life or of cruel and unusual treatment or punishment or danger of torture if you move to Haiti. You stated that you fear being killed because of the vendetta that (inaudible spot – 00:02:12) have against you because of (inaudible spot – 00:02:15) arrest and suspension among other matters of internal church politics.

[6] Refugee protection claims involving vendettas usually follow under subsection 97(1) of the Act, and since there is no nexus that I can mention. I therefore analyzed your Refugee Protection Claim under Section 97(1)(b) of the Act, and that is whether you would be personally subjected to a risk to your life or a cruel and unusual treatment or punishment should you return to Haiti.

[7] I find that the evidence presented in support of your allegations does establish a likelihood on a balance of probabilities of a risk to your life. I find you to be a credible witness and therefore believe what you have alleged in support of your claim. You testified in a straightforward manner, and you were able to spontaneously provide consistent testimony, as well as details of the many events in your narrative. You also provided evidence from credible sources which corroborates your allegations regarding what happened to you in Haiti. Your claim was very well documented. There is objective support for your allegations. Item 7.1 of the National Documentation Package describes the security situation in Haiti as bad, worrisome, precarious and unpredictable. Organized crime exists throughout the country, and there is a high level of crime and murder, kidnappings for ransom money or (inaudible spot – 00:03:44). Violent crime is primarily perpetrated by gangs in Haiti as well. I find that there is clear and convincing evidence before me that the state is unable to provide you with adequate protection. Section 4.2 of the National Documentation Package states that democracy is precarious in the country. 2.1 states that the perception of widespread impunity discourages some witnesses from testifying at trials. These factors will impact your ability to receive any protection from the state. Item 7.1 states that the police force does not have sufficient capacity to carry out its missions, on the other hands it is also reported that the forces demonstrated an increased capacity in the planning and execution of complex operations including the securing of elections and crowd control while simultaneously performing routine tasks in combatting crime and more effectively maintaining the public order. Nevertheless, sources report that Haiti’s police force is too small given the crime rate.

[8] Sources also reports that the police force lacks resources and means and doubts have repeatedly been raised as to whether the National Police Force is able to guarantee the security needed to protect Citizens, enforce the law and promote political stability. Haiti’s judicial system is also under resourced and inefficient and is burdened by a large backlog of cases. Bribery is common at all levels of the judicial system. So, taking all of that into consideration I do not find that there is going to be a reasonable state protection for you and there is prior convincing evidence that the state is unable to provide you with adequate protection in your particular circumstances from the people who are after you.

[9] I have considered whether a viable Internal Flight Alternative exists for you, and I find that there are no other parts of the country where you would not face a risk to your life. Haiti is a very small country, and you have been located more than once when you attempted to relocate within the country.

[10] Based on this analysis, I conclude that you are a person in need of protection, and accordingly I accept your claim.

[11] So that is the end of your hearing. Do you have any questions?

[12] You have to unmute if you have a question.

[13] CLAIMANT: I don’t have question.

[14] MEMBER: Okay. Well that’s it then.

[15] COUNSEL: Okay. Thank you.

[16] MEMBER: Thanks everybody. Thank you, Mr. Interpreter.

[17] INTERPRETER: Okay. Thank you, Madam Member.

———- REASONS CONCLUDED ———-

All Countries Uganda

2020 RLLR 59

Citation: 2020 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: October 1, 2020
Panel: Kevin Wiener
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Uganda
RPD Number: TB8-20429
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000001-000003

DECISION

[1] MEMBER: This is the decision in the claim for refugee protection of [XXX]. Sir, you are claiming to be a citizen of Uganda and your claiming refugee protection in Canada pursuant to sub-Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] I considered your testimony today and I’ve considered the other evidence you provided, and I am ready to render a decision, I’ve decided to accept your claim. In making my decision I have considered the Chairpersons Guideline on persons with diverse sexual orientation and gender identity and expression. As I said, my determination today is that you are a Convention refugee on the grounds of your sexual orientation, that is that you are a gay male.

[3] In your claim you’ve alleged the following, that you are a citizen of Uganda, and that you are being stalked by the Ugandan police after your partner’ s wife discovered the two of you together. You allege that if you return to Uganda you will face arrest and social persecution because of your sexual orientation.

[4] Now there is a number of things I have to look at in your claim but first there’s your identity, who you are and what your country you’re a citizen of. In this case I find your identity has been established, your passport is seized by the Canada Border Services Agency and a copy of that passport was provided into evidence. In addition, you’ve also provided other documents, including your national ID card and your birth certificate. I find these documents establish on the balance of probabilities who you are and that you are a citizen of Uganda.

[5] The next issue in a claim is Nexus, that is whether the harm you fear falls into one of the five categories under refugee Convention. In this case the applicable category is one called particular social group and that is because you are a gay man and that something integral to your identity and it’s out of your control. That makes you a member of a particular social group and therefore any persecution you may face because of your membership in that group falls under Section 96 of the Act.

[6] The next issue is credibility. In any claim I have to determine whether the person making the claim is telling the truth. In this case I found that you are a credible witness and I believe what was in your oral testimony and your Basis of Claim form. Now in any claim when a claimant swears they’re telling the truth that starts a presumption that they are telling the truth and that can only be rebutted if there are inconsistencies in their testimony or other things that make me believe that what they are saying is not the truth. In this case I have no reason to believe that you are telling me anything other than the truth, your testimony today was consistent with what was in the Basis of your Claim. But I also find that you were able to go into a number of details outside of your Basis of Claim, including about your relationship with [XXX], your relationship with [XXX] what things were like at school. I found particularly compelling your testimony about your conversation with your mother at the hospital and how she said that you had brought shame to her and how that made you feel. You know that was the detail in your Basis of Claim, but you were able to answer that question very spontaneously, and I found that your testimony in that regard was credible. There was only one significant inconsistency in the hearing today and that was as I mentioned in the hearing when you were interviewed by Dr. [XXX], you gave dates for when you first realized you were gay and your first experience of sexual-, of consensual sex that were different than the dates in your testimony and your Basis of Claim. When I asked you about that you said that, that interview was shortly after you came to Canada and you were under a lot of stress and that’s why you got that answer wrong when that interview with Mr-, Dr. [XXX]. However, I note your testimony in this area was consistent between your Basis of Claim and your testimony today and ultimately, I don ‘t think this one inconsistency is signif-, is sufficient to show that you are not a credible witness. So, I find that presumption that you’re telling the truth is still in place.

[7] Your testimony was not the only evidence you provided, you also provided supporting affidavits from three individuals who confirmed various parts of your testimony. I have no credibility concerns about those affidavits, and I find they further prove the same allegations. So ultimately, I accept on the balance of probabilities what you testified to, that you are a gay man and that you are being sought by the Ugandan police and that you fear returning to Uganda because of those facts.

[8] I also have to determine whether your claim is objectively well-founded. That is there’s objective evidence showing that you are actually at risk in Uganda and there’s a National Documentation Package that forms parts of every decision and that package has documents that are very clear that sexual minorities, including gay men face severe persecution in Uganda. For example, the United States Department of State has issued a human rights report which is Item 2.1 of the National Documentation Package. That report notes that homosexuality is illegal in Uganda and that both society and the authorities routinely perpetrate violence against the LGBT community. I also draw on Item 6.1 which is a report from ORAM, and it talks about the anti-homosexuality laws in Uganda, that while the more restricted anti-homosexuality law was struck down by the courts, homosexuality remains illegal under Uganda’s Penal Code. But the fact that less than a decade ago Uganda was putting in place harsher penalties against homosexuality is to me a strong signal that homosexuality remains widely unacceptable in that country and subject to persecution. That report from ORAM says that no one has yet been convicted for violating the law against homosexuality but that police frequently charge people for violating it. And for me just the fact that you may be arrested and charged for violating this law is itself a form of persecution even if you don’t face a risk of conviction. ln addition, I’ve accepted your personal testimony that you are personally being sought by the Ugandan police and that you personally have been arrested by the Ugandan police. So, when looking at this I have to look forward at your risk if returned to Uganda and the question is, is there a serious possibility that you will face persecution if you return to Uganda. And because I’ve accepted that you are gay and that you were sought by the police, I do find that there is a serious possibility that you will face persecution in Uganda and the reason for that persecution is your sexual orientation.

[9] There’s two other things that we have to look at in the claim, the first is state protection, whether the government can protect you from any harm. That doesn’t apply to this case because the agent of persecution is itself the State, because of that no state protection can be available to you. The next question is what’s called an internal flight alternative. In order to make a refugee claim, you either have to show that you face persecution everywhere in Uganda or if you face persecution only in some parts that it would be unreasonable to move somewhere else in Uganda. In this case again, the agent of persecution is the government of Uganda, they control the entire country and therefore I find you face a serious possibility of persecution everywhere in Uganda.

[10] So, in conclusion, when I look at the totality of the evidence, your testimony, the documents in the National Documentation Package, I find that you face a serious possibility of persecution everywhere in Uganda and the State cannot protect you from that persecution; therefore you meet the definition of a Convention refugee under Section 96 of the Immigration and Refugee Protection Act. I therefore accept your claim today sir.

———- REASONS CONCLUDED ———-

All Countries Cuba

2020 RLLR 60

Citation: 2020 RLLR 60
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Gabriel Ukueku
Country: Cuba
RPD Number: VB9-01930
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000004-000007

DECISION

[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of [XXX] as a citizen of Cuba who is claiming refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

Allegations

[2] The claimant alleges persecution at the hands of the Cuban government due to his political opinion. The following is a brief synopsis of the allegations put forth by the claimant in his Basis of Claim form in Exhibit 2. He opposed changes to the Constitution in 2018 through consultations conducted by the local neighborhood CDR, which is the Commi-, Committee for Defense of Revolution. The claimant was confronted in his home by the CDR executives in [XXX] 2018 and accused of being anti-government. After a few days, he along with his family was questioned by two officers of the DSC which is the Department of Security. He felt he was being scrutinized and watched closely by his neighbors and was scared of being persecuted. The claimant traveled to Canada on a business trip in [XXX] 2019 and filed for protection.

ANALYSIS

Identity

[3] The claimant’s identity as a national of Cuba is established by way a certified copy of his Cuban passport on file in Exhibit 1.

Nexus

[4] In rendering this decision, the Panel has considered the claimant’s testimony and documentary evidental-, evidence on file. For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason one or more of the five grounds which are race, religion, nationality, membership in a particular social group, or political opinion. In this case, the evidence before the Panel is that the claimant is wanted by the Cuban authorities due to his opposition to some of the Constitutional changes affected in his country. The Panel finds, in this case, that the claimant has established a Nexus to a Convention ground, political opinion. Accordingly, the Panel has assessed this claim under Section 96 of the Act and not under Section 97.

Credibility

[5] When a claimant swears to the truthfulness of certain facts, there is a presumption that what he or she is saying is true unless there are reasons to doubt it. Secondly, when assessing credibility, the Panel is entitled to rely on rationality and common sense. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities. At the hearing, the claimant’s testimony was direct, thoughtful, and earnest. He testified in a very detailed and forthright manner, there were no inconsistencies in his testimony, and he clearly identified the agent of harm as being the government of Cuba. The claimant made no attempts at embellishment. He explained the provisions of Articles 31 and 135 of the Cuban Constitution and why he opposed them. Article 31 deals with issues related to workers and their remuneration and Article 135 deals with the election of state officials such as governors. He asked for [XXX] and did not agree with how [XXX]. The claimant stated that when he-, when the changes were opposed and everyone was told that-, sorry-, the claimant stated when the changes were proposed and everyone was told that consultations were being held to seek citizens’ opinions, he thought that the government was being earnest in bringing about positive change in his country. However, when he was confronted by the executives of the CDR and then visited by DSC officers, who threatened him with being against the government of Cuba, he started to fear for his life. He was excluded from any further CDR meetings and his children were excluded from participating in sports and extracurricular activities at the school.

[6] The claimant stated that he will be immediately arrested upon his return to Cuba for two reasons. His political opinion and abandonment of his training in Canada since he is an employee of the government of Cuba. He quoted Article 135 of the Cuban Constitution which states that any employee who abandons his mission in a foreign country and does not return to Cuba incurs a penalty of deprivation of liberty for three to eight years. The claimant provided an uncertified translated copy of this provision to the Panel during the hearing, which was then translated on record from Spanish to English. The Panel accepts this document and claimant’s argument as credible. The claimant has also provided testimonies from his family and a friend as to the events he faced prior to leaving Cuba. Based on the claimant’s consistent and forthright testimony and the corroborative evidence, the Panel finds him to be a credible witness and accepts his allegations to be true on a balance of probabilities.

Well-Founded Fear of Persecution and Risk of Harm

[7] The United States Department of State as per NDP Item 2.1 states that Cuba is an authoritarian State. Human rights issues included reports of unlawful and ar-, arbitrary killing by police, torture of political dissents, detainees and prisoners by security forces, harsh and life-threatening prison conditions, arbitrary arrest and detention, holding of political prisoners, and arbitrary or unlawful interference with privacy. The law allows the maximum four-year preventative detention of individuals not charged with an actual crime with a subjective determination of pre-criminal dangerousness, defined as the special proclivity of a person to commit crimes, demonstrated by conduct in many first contradiction of so-, so-, of societal norms. Mostly used as a tool to control anti-social behaviors such as substance abuse or prostitution, authorities also used such a detention to silent peaceful political opponents. Multiple domestic human rights organizations published lists of persons they considered political prisoners. Individuals appearing on these lists remained imprisoned under the pre-criminal dangerousness provision of the law. The Ministry of Interior employed a system of informants and neighborhood committees, known as CDRs, to monitor government opponents and report on their activities.

[8] Human Rights Watch as per NDP Item 2.4 states that the Cuban government continues to employ arbitrary detention to harass and intimidate critics, independent activists, political opponents, and others. Detention is often used pre-emptively to prevent people from participating in peaceful marches or meetings to discuss politics. Detainees are often beaten, threatened and held incommunicado for hours or days. Cubans who criticize the government continued to face the threat of criminal prosecution. They do not benefit from due process guarantees such as the right to fair and public hearings by a competent and impartial tribunal. In practice, codes are subordinate to the executive and legislative branches denying meaningful judicial independence. Freedom House, as per NDP Item 2.6, also reports that political parties other than the PCC are illegal in Cuba. Political defense is-, dis-, sorry-, political dissent is a punishable offense and dissidents are systematically harassed, detained, physically assaulted, and frequently imprisoned for minor infractions. As noted, the claimant has been questioned by the State authorities in Cuba due to his political disagreement over constitutional changes. He and his family were under watch by the neighbors through the neighborhood CDR. This was followed by questioning by executives of the CDR and officials of the DSC. He is now being constantly sought after in his country, the claimant fears persecution due to his political opinion. Based on the objective evidence as discussed, the Panel agrees that his fear of returning to Cuba is indeed well-founded.

State Protection and Internal Flight Alternative

[9] State protection would not be forthcoming in this particular case as it is the State of Cuba that seeks to target the claimant. He has been threatened and questioned by the executive’s office CDR and the DSC officers. His family is being harassed and questioned about his whereabouts. The Panel finds that it would be objectively unreasonable in these circumstances for the claimant to have or to seek the protection of the very authorities that seek to persecute him. Since adequate state protection is not available to the claimant, the Panel finds that there is no internal flight alternative available to him, as the Cuban authorities are in control of the entire territory of the country.

Determination and Conclusion

[10] For the foregoing reasons, the Panel finds that the claimant is a Convention refugee as per Section 97-, 96 of the Act and accepts his claim.

———- REASONS CONCLUDED ———-

All Countries Peru

2020 RLLR 58

Citation: 2020 RLLR 58
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Selena Eng
Counsel for the Claimant(s): Richard Addinall
Country: Peru
RPD Number: TB8-18682
ATIP Number: A-2021-00655
ATIP Pages: 000194-000198

DECISION

[1] MEMBER: This is the decision of the claim of the principal claimant [XXX] in file number TB8-l8682. The claimant is a citizen of Peru and is claiming refugee protection pursuant to Section 96 and 97 and the Immigration and Refugee Protection Act.

[2] The facts and evidence alleged in support of the claim are set out in the claimant’s respective Basis of Claim form. In summary, the claimant fears harm in Peru from his ex-partner on the basis of his sexual orientation as a gay man. I have determined that the claimant is a Convention refuge or a person in need of protection pursuant to Section 96 and subsection 97(1) of the IRPA.

[3] In making this assessment, I have considered all the evidence, including the oral testimonies, the documentary evidence, and counsel’s submissions, and the documentary evidence.

[4] The claimant arrived in Canada with a fraudulent [XXX] passport. The claimant testified that he paid a [XXX] smuggler for the documents to come to Canada, as it was easier to go through [XXX] than to apply for a [inaudible]. The claimant provided a Peru issued national identification card to verify his Peruvian identity when he entered Canada. I find the claimant’s testimony regarding his identity and how he was able to come to Canada to be credible. I find, on a balance of probabilities, that the claimant’s identity was established by the certified true copy of his Peru issued national identification card and accepts that the claimant is a citizen of Peru.

[5] Regarding credibility, in the assessment of this claim, I have taken into consideration the Chairperson’s Guideline that deals with the assessment of claims from persons who are members of the LGBTQI community. They are also referred to as the SOGIE Guidelines. I find that the claimant testified in a straightforward fashion with regards to the central elements of the claim. I find that the claimant’s overall testimony was credible.

[6] The claimant testified about identifying and living as a gay man in Peru. The claimant testified about meeting his ex-partner in [XXX] 2017, moving in together in [XXX] 2017, and about his partner becoming increasingly jealous, possessive and accusing him with being with other men, as well as beating him, especially when he was drunk. I also heard testimony regarding the partner’s harassment of the claimant at his workplace [XXX], and that a restraining order was obtained, that did not deter the ex partner from finding him at the [XXX].

[7] The claimant testified about an incident on [XXX] 2018, when his ex-partner threw a stone at his head, opening up his skin, along with breaking a bottle over the head and also kicking and punching the claimant while threatening his life. The claimant testified about going to the hospital and obtaining treatment. He also filed a police report at the station and indicated the police made fun of him for deciding to become gay and told him to go back to his husband and cook for him. The claimant testified about the police telling him that they would investigate, but the claimant did not hear back from police despite following up a week later. The claimant testified about forcing his ex-partner to leave his apartment for good, around [XXX] 2018. The claimant testified about an incident where he was waiting at a bus stop on [XXX] 2018, when he was kidnapped by four men, including his ex-partner. The claimant was beaten, cut, and raped by his ex-partner and the men. The claimant testified that he woke up in a hospital and was advised that- by a nurse -that a lady had found him and brought him there. The claimant remained in hospital for two days, and did not return to his place of rental or his apartment unit when he left and, instead, he went to the home of the [XXX], where he worked, for help.

[8] The claimant also testified about his ex-partner having many friends in the police force and being afraid to go to police.

[9] The claimant testified that he was estranged from father and other family members, and that is the reason why he went to the couple that [XXX] for help. The claimant testified they assisted him with obtaining money and helping him to go to [XXX] to come to Canada, where he was told by his other gay friends that he could obtain protection.

[10] The claimant went to [XXX] to obtain his travel documents before arriving in Canada to make a refugee claim.

[11] Regarding the claimant’s supporting documents, he has provided several of them that are on file. A police report dated [XXX] 2018, noted that the claimant filed a corn plaint against his ex-partner, attacking him when he attempted to terminate their relationship due to the increase psychological and physical abuse. The report states that the claimant had punches to the face and kicks, a bottle being broken over his head, as well as threats from the ex-partner that he was going to kill him. The report noted that the claimant was brought to the hospital by ambulance. There was also a medical report indicating that the claimant was treated in an emergency unit for a [XXX], on [XXX] 2018. Another medical report notes that the claimant was treated on [XXX] 2018, for [XXX]. The claimant also provided letters from friends in Peru who attested to witnessing verbal and physical abuse against the claimant by his ex-partner. I find that the reports corroborate the claimant’s testimony regarding the threats and attacks by his ex-partner, and the medical treatment he received. I find that the claimant was attacked on more than one occasion and required medical treatment. I find that the claimant’s concerns were not addressed by police, and that the claimant has established his subjective fear of persecution in Peru.

[12] Regarding the claimant’s identity as a gay man, I note that he had a daughter with a woman in Peru. The claimant testified he was very young when he had sex with woman one time, when they were both drinking and celebrating the end of school. The claimant testified he did not find out about his daughter until she was one-years old and has not had any contact with them since his daughter was four. The claimant testified about being attracted to men and only in relationships with men. The claimant provided a [XXX] report from a hospital, dated [XXX] 2018, which indicates he was experiencing [XXX], and [XXX] to his sexual orientation. The report notes that the claimant was receiving [XXX]. The claimant also provided letters from friends from Peru and Canada that speak to his sexual orientation as a gay man. The claimant also had newcomer orientation training record, dated [XXX] 2018, for the 519 Organization in Toronto, dedicated to advocacy inclusion for the LGBTQ communities in Toronto. I find that the claimant testified in a credible and straightforward manner, and accepts the claimant’s explanation as to why he had sexual relations with a woman which resulted in the birth of a daughter, despite identifying as a gay man and being attracted to men. I find that the claimant has established on a balance of probabilities that he is a gay man and that he has a subjective fear from his ex-partner in Peru.

[13] Regarding the claimant’ s failure to claim refugee status in [XXX], the claimant was asked why he didn’t want to apply for refugee or more permanent status there. The claimant testified that it was his goal to come to Canada because he heard it was more friendly to the LGBTQI community, and that he only entered [XXX] to obtain the documents to come to Canada. Based on the evidence before me, I find that the claimant did not have permanent status in [XXX] and was only present in [XXX] as a transit to Canada. I do not find that the claimant’ s lack of applying for refugee status in [XXX] undermines the credibility of his claim. Regarding the objective basis and country conditions in Peru, I find that there is general, widespread corruption within the police and judiciary in Peru. The 2020 Freedom in the World report for Peru indicates that government corruption remains a critical problem in the country. The law enforcement authorities frequently investigate and persecute corruption allegations. On the issue of the application of the rule of law, the report found that the judiciary is perceived as one of the most corrupt institutions in the country. The report also found that constitutional guarantees of due process are also unevenly upheld.

[14] With regards to country condition for LGBTI, or lesbian, gay, bisexual, transgender and intersex individuals, the United States Department of State’s Country Report on Human Rights Practices for 2019 for Peru, or the D-O-S report, DOS report, indicates that the law in Peru recognizes the right of individuals to file legal claims of discrimination based on sexual orientation or gender-identity. However, the DOS report noted that the government officials, non-government organizations, or NGOs, journalists and civil society leaders, reported widespread official and societal discrimination against the LGBTI persons in employment, housing, education and healthcare, based on sexual orientation or gender-identity. NGOs also reported an increase in forced or coerced conversion therapy in Peru.

[15] Increasing LGBTI rights in Peru is also moving slowly. In the National Report 2017 submitted to the Human Rights Council for Peru, it was noted that the National Human Rights Plan for 2017 to 2021 was to include special protections to be included for LGBTI persons. It was noted that the national human rights coordinator that ail mention of protection on the grounds of sexual orientation and gender-identity have been removed from Peru’s National Plan for 2014 to 2016, despite LGBTI groups having participated in its preparation. The document notes that the new National Human Rights Plan for 2017 to 2020 was under consultation and there continued to be challenges with the coordination, implementation, monitoring and evaluation of plans.

[16] The US DOS report also further indicates that NGOs continue to report that law enforcement authorities repeatedly fail to protect and often even violated the rights of LGBTI citizens. The United Nations Human Rights Council Compilation on Peru further cited concerns at reports of harassment and violent attacks, some of which had resulted in death against the lesbian, gay, bisexual and transgender community, by members of the national police, armed forces, municipal security patrols and prison officials. I find that there is objective basis for the claimant’s fear of his ex-partner as an individual belonging to the LGBTI community, and that he has a well-founded fear of persecution in Peru.

[17] Regarding state protection, there is a presumption that countries are capable of protecting their citizens. The claimant bears a legal burden of rebutting the presumption that adequate state protection exists by educing clear and convincing evidence which satisfies on a balance of probabilities. I’ve reviewed the country conditions set out in the National Documentation Package and find that the claimant has rebutted the presumption of state protection with the evidence provided.

[18] I find that, in the claimant’s circumstances, the state has not been willing or able to protect him. I find that the claimant’s ex-partner attacked the claimant causing injury that required hospital care. Despite the attack, I heard evidence that police did not take the claimant’ s complaint seriously, instead making fun of the claimant for being gay. I find that the police in this case had the information of the identity of the perpetrator, but nothing was done, even after the claimant followed up with police. The claimant’s ex-partner was not arrested or charged for the attack or the death threats against the claimant. I also heard evidence of the claimant’s ex-partner being able to continue to move freely in Peru. Subsequently, the claimant was attacked, threatened, and raped by his ex-partner and other men. I find that, on a balance of probabilities, that the claimant’s ex-partner has continued interest in the claimant and would continue to seek him out, should the claimant return to Peru. Based on the documentary evidence, there has been a Jack of effective implementation of protection for LGBTI individuals in Peru. I find that the documentation does not indicate protections to be adequate at the operational level for LGBTI individuals. I do not find the claimant’s return to Peru would allow him to obtain justice against his ex-partner, or the claimant would receive further protections or assistance from police, should he continue to face threats or attacks. The assumption that the claimant will be able to receive meaningful protection in Peru from the state is contradicted by the country conditions evidence. I am satisfied that the claimant has rebutted the presumption of state protection.

[19] Regarding internal flight alternative, the question of whether an internal flight alternative exists is an integral part of the Convention refugee definition. It arises when a claimant, who otherwise meets all elements of the Convention refugee definition in his or her home area of the country, nevertheless, is not a Convention refugee because a person has an IFA elsewhere in that country. I find that the claimant’s ex partner is a violent person who has demonstrated continued interest in the claimant after their breakup, going so far as to kidnap him with additional friends to attack him, after they broke up. I also find the claimant testimony regarding his ex-partner’s ability to continue moving freely and threatening him in Peru, to be credible and supported by the evidence provided. I find that the claimant, as a gay man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police. I also heard evidence of the claimant’s ex-partner has friends in the police force, and he would be able to pay bribes to locate the claimant wherever he went in Peru. I find that the issues with receiving protection from the state for LGBTI individuals, who are [inaudible] by police, appears to be present throughout Peru. As the claimant has rebutted the presumption of state protection and because the agent of persecution has shown motivation to continue to track the claimant, I do not find the claimant has a viable internal flight alternative in Peru.

[20] In conclusion. I find that the claimant has established a serious possibility of persecution in Peru from his ex-partner and based on a Convention ground, namely his sexual orientation as a gay man, and I accept the claim.

———- REASONS CONCLUDED ———-

All Countries Kenya

2020 RLLR 57

Citation: 2020 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: Deborah Coyne
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB8-17416
ATIP Number: A-2021-00655
ATIP Pages: 000189-000193

DECISION

[1] MEMBER: These are the reasons in decision, for decision in the claim of [XXX] who claims to be a citizen of Kenya and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimant fears persecution due to her gender and her membership in a particular social group, as a woman facing risk of female genital mut-, mutilation and gender violence.

[2] The Panel applied the Chairperson’s Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution in assessing the harm feared by the claimant.

Allegations

[3] In her written and oral testimony, the claimant provided a very detailed account of entering into a forced marriage, enduring serious domestic violence, resisting her husband’s insistence that she undergo FGM and ultimately escaping from him and the va-, vigilantes he hired to ensure she complied but not before she was raped and violently assaulted. The police were of no assistance on at least three occasions when she approached them for help. Ultimately, she was able to obtain a TRV and came to Canada seeking refugee protection at the Port of Entry.

Determination

[4] The Panel finds that the claimant is a member of, of a particular social group which is women at risk of gender violence and is therefore a Convention refugee under Section 96.

ANALYSIS

and Identity

[5] The Panel was satisfied on a balance of probabilities that the claimant is a citizen of Kenya from the certified copy of her passport on the file.

Credibility

[6] The claimant responded to all questions clearly and spontaneously in the English language. The Panel finds the claimant to be a credible witness. And her evidence was corroborated by and is consistent with the documents she submitted that the Panel finds credible. Notably, medical reports, statement of suppor-, statements of support and some photographs.

[7] The Panel makes the following findings on a balance of probabilities. The claimant was born into the Kisii tribe in Kenya in which FGM is still practiced in young girls and women along with other traditional customs. For example, after her father died, his brother inherited the claimant’s mother as his wife. Her mother was forced to marry her brother-in-law who then insisted that her mother undergo FGM.

[8] The claimant successfully pursued studies and became [XXX] and her step-father found a way to send her to study [XXX] at the [XXX] from 2008 to 2012. When she returned to Kenya, she started working at the [XXX]. In or about 2013 and 2014, she discovered to her horror that her step-father had promised her in marriage to a man who had secretly funded her university studies in the Philippines.

[9] A summary of the next traumatizing fours years are set out in persuasive detail in the claimant’s written narrative. The claimant was forced into the marriage in [XXX] 2015, raped brutally by her husband and ordered to undergo FGM. Shortly after the marriage, she reported her spousal rapes and violence to the Nakuru Central Police Station at the suggestion of her doctor. The police mocked her and said that alleging spousal rape was a waste of their time. The FGM was scheduled for [XXX] 2015. The claimant escaped from her husband and the vigilantes he hired to ensure that she underwent FGM. She moved around and worked in different places. For example, Nairobi, Nakuru and then Kibera where she stayed with her aunt. The claimant went to the police again in or about [XXX] 2016 when she was forced to return to her husband but managed to escape again. They told her that resisting FGM was a family matter but that she should go to the Anti-FGM Organization. The claimant went to get help from the Anti-FGM Organization but had to find money to hire a lawyer.

[10] Among other things, she lived undercover by wearing a burqa in [XXX], about [XXX] kilometres away from Nairobi. In [XXX] 2017, while she was recuperating from an [XXX] she was discovered by the vigilantes, raped and seriously injured. She went to the police. A detailed copy of the report is found in Exhibit 5. And there was also other documents such as the [XXX] dated [XXX] 20^th, 2017 and so forth. After this ordeal, she was advised by her friend [XXX] who had witnessed the attack on her by the vigilantes to leave the country and she applied for her T-, TRV. She falsiv-, she falsified the existence of a common-law husband and a child and some other documents to ensure that she was accepted. I also note that there were corroborative affidavits for most of the incidents from her friend [XXX], her aunt [XXX], her mother, [XXX] and another childhood friend. All of these are in Exhibit 5.

[11] So, on a balance of probabilities the Panel accepts that the claimant has a subjective fear of persecution because of her membership in a personal social group, women at risk of gender violence.

[12] So, now I’m going to turn to the objective basis. The claimant testified that the traditional practice of FGM is rooted in Kenyan culture and the Kisii tribe. The United States Department of States, State report called the DOS report for 2018 on Kenyan human rights notes that human right issues in the country including the lack of accountability in many cases involving violence against women including rape and FGM.

[13] Authorities cited domestic violence as a leading cause of preventable and non-accidental death for women during the year. Except in cases of death, police officers generally refrain from investigating domestic violence which they consider a private matter. With specific reference to FGM, the DOS report indicates and this is in, oh this is in still in 2.1, the law makes it illegal to practice FGM, procure the services of someone who practices FGM or send a person out of the country to undergo the procedure. The law also makes it illegal to make derogatory remarks about a woman who has not undergone FGM.

[14] Government officials often participated in public awareness programs to prevent the pra-, the practice. Nevertheless, individuals practiced FGM widely particularly in some rural areas. According to a study by ActionAid Kenya published in October despite the legal prohibition on FGM, mis-supported the practice-, supporting the practice remain deep-rooted in some local cultures. The study concluded approximately 21% of adult woman have undergone-, had undergone the procedure some time in their lives. But the practice was heavily concentrated in a minority of communities.

[15] The DOS report further states that there were also reports the practice of FGM increasingly occurred underground to avoid prosecution. The May 2018 report entitled Kenya and the Law of FGM which is Exhibit 5.10 states as follows FGM in Kenya continues to be carried out predominantly by traditional circumcizers for 74.9% of girls age 0 to 14. And 83.3% of women aged 15 to 49. There has been some concern over the increasing medicalization of FGM in Kenya. In recent years however, with claims that its risen to as much as 40 per-, 41% in some areas. And that medical professions-, professionals are performing FGM in homes, hospitals or temporary clinics.

[16] According to the UK Home Office and this is exhibit or, sorry Item 1.4 of the NDP for Kenya, women and girls in Kenya in fear of FGM forma particular social group within the meaning of the refugee Convention. And it further reports that although it is against the law and in decline, FGM continues to be practiced in Kenya among most ethnic groups to varying extents. The report indicates that communities that practice FGM report a variety of social and religious reasons for continuing with it. Deeply-rooted customs linked to social and economic benefits are associated with FGM.

State Protection

[17] The agents of persecution in Kenya are the claimant’s husband and his extended family and the vigilantes he hired to pursue the claimant. As noted above, the claimant approached the police with complaints and requested help on at least three occasions and was turned away. An extensive report entitled FGM in Kenya, this is Item 5.3 it’s dated 2016 so it’s actually longer than a sequel to it which is, was done in 2018. However, it, it finds that “While there has been progress in both legal and policy frameworks, implementation and enforcement remain a challenge largely due to a lack of resources, difficulties reaching remote rural areas and the limited capacity of law enforcement agencies”.

[18] This is enforcing the Anti-FGM legislation and, and policies that are technically in place. The report further finds that there have been few prosecutions and low conviction rates across the country. Often even if survivors do report FGM they fail to attend court to give evidence. Finally, the report finds that intimidation and fear help to keep the practice secret and cases unreported.

[19] Item 2.3 which is the 2018 Freedom of the World report for Kenya indicates that corruption continues to plague national and county governments in Kenya. And State institutions tasked with combating cor-, corruption have been ineffective. Item 2.5 which is the 2017-2018 Amnesty International report indicates that the authorities continue to use legal and administrative measures to restrict the activities of civil society organizations working on human rights and governance.

[20] And finally, according to the 2019 Human Rights report which is Item 2.2, women are also vulner-, vulnerable to abuse from the State security forces that should be there to protect them. The Watch report, the Human Rights Watch reports further indicates that the Jack of accountability for serious human right violations perpetrated by security forces remains a major concern in 2018.

[21] So, the Panel finds on a balance of probabilities and in the particular circumstances of this case, that the objective country evidence supports the conclusion that the Kisii tribe and the Kenyan government and security forces are too often complicit in the gender violence experienced by the claimant. The claimant has provided clear and convincing evidence that the State is unable or unwilling to protect her. Accordingly, the claimant has successfully rebutted the presumption of state protection.

Internal Flight Alternative

[22] The claimant testified that she would be at risk in all regions within Kenya. And that her husband and his vigilantes might have the means and motivation to seek her out wherever she might live and work. The evidence that the Panel found credible indicated that her husband was able to find her on several occasions as she sought to escape him after their marriage. The Panel finds that relocation within Kenya would be unreasonable in the claimant’ s circumstances. And the Panel further finds that there is no viable IFA where the claimant could reside safely.

[23] So, in conclusion the Panel finds that the claimant is a member of a personal, particular social group which is women at risk of gender violence. And is therefore, a Convention refugee.

———- REASONS CONCLUDED ———-

All Countries Czech Republic

2019 RLLR 147

Citation: 2019 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: January 7, 2019
Panel: H. Ross
Counsel for the Claimant(s): Howard Gilbert
Country: Czech Republic
RPD Number: TB6-04818
ATIP Number: A-2021-00655
ATIP Pages: 000040-000051

REASONS FOR DECISION

[1] [XXX], the principal claimant, [XXX] and [XXX] (a.k.a. [XXX]) claim protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)¹.

[2] In accordance with Rule 55 of the Refugee Protection Division (RPD) Rules the claims were heard jointly,² with the principal claimant being designated the representative for the three minor claimants.³

ALLEGATIONS

[3] The claimants rely on the allegations set out in the narrative portion of the principal claimant’s Basis of Claim Form (BOC)⁴. Briefly, the claimants allege a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity. They claim to be afraid of the ethnic Czech population, racist elements in Czech society, namely, skinheads and the police. The claimants also state that they do not have a reasonable expectation of state protection, as whenever they have made attempts to obtain state protection, the police did not respond to their attempts.

DETERMINATION

[4] For the following reasons, the panel finds that the claimants are Convention refugees.

ISSUES

[5] The determinative issue in the claim is credibility. At issue also is the claimants’ delay in claiming protection, and their failure to claim protection in the United States (US).

ANALYSIS

Identity

[6] The panel finds that the claimants’ identities as nationals of the Czech Republic are established by the copies of their passports, found in Exhibit 1.⁵

[7] The panel also finds that the claimants’ ethnic profiles as Roma persons is satisfactorily established on the basis of the principal claimant’s testimony, the attestation from the Roma Community Centre,⁶ and also by the fact that during the hearing, interpretation services were provided using the Romungro dialect of the Roma language.

Credibility

[8] In assessing the credibility of the claimants’ allegations of discrimination, the panel noted that there were several issues relevant to the assessment, namely the principal claimant’s failure to claim protection in US, his re-availment of the protection of the Czech Republic, and his delay in claiming protection once the claimants arrived in Canada. The panel considered each of these issues in turn.

Delay in claiming

[9] The claimants arrived in Canada on [XXX] 2016, and made claims for protection on or about [XXX] 2016.⁷ A witness, [XXX], was called to explain the delay in claiming.⁸ She provided a number of reasons for the delay, including that she had to meet with the claimants several times before the forms were completed. The panel considered her evidence, as well as the length of the delay in assessing the impact of the delay on the claimants’ credibility. The delay is was six weeks. The panel concluded that when the totality of the circumstances is considered, a six-week delay is not so lengthy as to seriously impugn the credibility of the claimants.

Failure to claim elsewhere/re-availment

[10] The principal claimant travelled to the US in 2012, but did not make a claim for asylum. He testified that having travelled to the US on a temporary work programme, and being alone in the US, he only wanted to return to his family. He explained that had he claimed asylum in the US, he likely would have been separated from them for a long time, something that he did not want to do.

[11] Counsel submitted that the principal claimant had provided a reasonable explanation for his failure to claim asylum in the US, and why he returned to the Czech Republic. On considering the principal claimant’s explanation, the panel concluded that the explanation was credible, in the circumstances of the family being a young family. Accordingly, the panel finds that the credibility of the principal claimant was not undermined by the fact that he did not claim protection in the US and returned to the Czech Republic.

Did the claimants experience discrimination?

[12] In their BOC, the claimants alleged a well-founded fear of persecution in the Czech Republic due to their Roma ethnicity.⁹ In their amended narrative, they detailed their living circumstances which they described as poor and crowded.¹⁰ The settlement in which they lived was primitive, its roads were unpaved, there was no running water, garbage pickup was sporadic. In addition, the settlement was not serviced by public transportation. The claimant alleged that conditions in similar Czech communities was radically different from those in the Roma settlement. The principal claimant testified that he made several attempts to find alternate housing through government agencies, but was turned down at each attempt.

[13] The principal claimant testified as to the difficulties he and the other claimants encountered in public places and in obtaining publicly-available services. His cited incidents where he and his family were refused service in restaurants, followed in stores, as well as being attacked and beaten on public transit. Although the claimants turned to the police for assistance, the police did not act on their reports.

[14] In response to the panel, the principal claimant described the following incidents of discrimination:

a) being refused employment that had been promised to him through agent;

b) being refused public housing although such housing was available;

c) being constantly humiliated in public spaces, particularly in shops where the family was followed; and

d) the family was refused service in restaurants.

[15] The principal claimant alleged that the family’s Roma ethnicity was the sole reason for the discriminatory treatment meted out to him and the associate claimants.

[16] In the instant case, the discriminatory acts include being refused employment some 30-40 times. The principal claimant alleged he had been unemployed since 1998.¹¹ He testified that he made some 30-40 unsuccessful attempts to finds work. As he did not speak the Czech language well, a Czech speaking friend would call the prospective employer on his behalf. Assured that there was work to be had, the principal claimant would then report to the workplace. Invariably, he would then be told that there was no work. The principal claimant cites this situation as an example of anti-Roma racism. The panel is not entirely persuaded of his position, because it can be argued that the employer never agreed to hire the principal claimant. He was intending to hire the Czech speaking person to whom he spoke. Put simply, the principal claimant was not the person the employers were expecting. In the result, the panel is not persuaded that the principal claimant’s ethnicity was the only deciding factor at play.

[17] With respect to their treatment in the public sphere, the panel finds that following the claimants while they shopped and refusing entry into restaurants, without justification, are clearly discriminatory acts.

[18] The principal claimant also described the following incidents:

• in the summer of 2015, an ice cream parlour refused to serve his wife and son;

• that same summer, the principal claimant’s mother and son were ejected from coffee shop;

• substandard medical care – Roma forced to wait or pay for services that should be free;

• intimidation by skinheads – in [XXX] 2013 about 80 skinheads marched through their community, screaming insults and beating Roma. The police took no action when complaints were made, although the complainants were able to describe their attackers; and

• in [XXX] 2014, the principal claimant and his spouse were attacked in a similar fashion. They went to a hospital and after a three to four hour wait, they were told that the doctor was too busy to see them. They went to the police station where they made a complaint. When they followed up two weeks later, the police informed them that the case was closed due to a lack of information.

[19] The panel finds that these actions are all clearly discriminatory in nature. In fact, the [XXX] 2013 incident is clearly of a criminal nature.

The documentary evidence

[20] The Board’s documentary evidence stated that racial discrimination is widespread in the Czech Republic. The Report of the Czech Ombudsman Office cites the following statistic:

Racial or ethnicity-based discrimination is perceived as the most frequent type of discrimination in the Czech Republic. Almost two thirds of respondents believe it is widespread, one fifth even believes it is extremely widespread.¹²

[21] With respect to the perception of how readily redress for discrimination is available, report goes on to note that:

[t]he respondents are very sceptical in rating the chances of the victims to assert their rights. Only 15 % believe that it is easy to get help for the victims of discrimination; and only 2 % of the respondents find the redress very easy. On the other hand, three quarters of the respondents think that it is difficult to invoke their rights, and more than one quarter consider it to be very difficult.¹³

[22] The US Department of State (DOS) Country Reports on Human Rights Practices for 2018 in the Czech Republic, identifies “crimes involving violence or threats of violence” against members of the Roma population as among the human rights issues prevalent in that country.¹⁴ Amnesty International makes specific reference to the ruling of the police in the death of a Roma man who died while being restrained by municipal officers and employees of a pizzeria as a result of his allegedly aggressive behaviour.¹⁵ The police discontinued their investigation finding that no crime had been committed.

[23] In its latest report, the US DOS states the following regarding the treatment of Roma persons:

National/Racial/Ethnic Minorities

There were approximately 300,000 Roma in the country, and many faced varying levels of discrimination in education, employment, and housing and have high levels of poverty, unemployment, and illiteracy.

Hate crimes against Roma continued to be a problem… Observers reported hate crimes are not sufficiently recognized by police, prosecutors, and judges, who often lacked will or adequate knowledge.

[… ]

Despite legislative measures aimed at desegregation of Roma in education, according to a Ministry of Education study, more than 29 percent of students in special schools were Roma, compared with 3.6 percent in regular elementary schools. After the introduction in 2017 of a free compulsory year of preprimary education at the age of five to six years old, the enrollment of Romani children in kindergartens increased slightly but remained markedly below the levels for non Romani peers. To support desegregation of Roma in schools, the government increased funding to provide additional support to students with special needs in mainstream schools.

Approximately one-third of Roma lived in “excluded localities” or ghettos. While the law prohibits housing discrimination based on ethnicity, NGOs stated that some municipalities discriminated against certain socially disadvantaged groups, primarily Roma, basing their decisions not to provide housing on the allegedly bad reputation of Romani applicants from previous residences.

The 2017 amendment to the law on persons with material need, which was intended to solve housing problems, in some cases had the opposite effect. The amendment allowed cities to declare certain areas as having an “increased occurrence of socially undesirable activity”. In such designated zones the government paid only a part of housing subsidies. Some cities started to use this instrument to get rid of Roma and other low-income citizens.

In September the European Roma Rights Center criticized President Zeman for his negative statements on Roma and in an open letter called for his resignation.

Zeman had stated that the unemployed persons in one of the country’s villages he visited were exactly the Roma who were forced to work during communism under the threat of imprisonment.

Roma were the most frequent targets of hate speech on internet.

In September the district court in Tachov fined a woman 20,000 koruna ($800) for posting threatening comments on the internet under a school photo of first graders from a local school. The children were mainly Romani, Arab, and Vietnamese, and the comments suggested sending them to gas chambers, shooting them, or throwing a hand grenade into the classroom. Police did not originally qualify the incident as a hate speech offense, but the supreme prosecutor requested a further investigation that led to the conviction.¹⁶

[24] The panel takes the documentary evidence to indicate that, in the Czech Republic, there is widespread discrimination against Roma persons. The panel finds that the claimants have clearly experienced discrimination.

Discrimination as opposed to persecution

[25] The issue for this panel is whether the discrimination these claimants experienced in the Czech Republic has risen to the level of persecution such as to bring them within the Convention refugee definition. Counsel for the claimant took the position that it has. He described the situation for Roma in the Czech Republic as being dire. He argues that the discrimination that Roma, in general, and the claimants in particular, experience in the Czech Republic has risen to the level of persecution.

[26] The United Nations High Commissioner for Refugees (UNHCR) Handbook and Guidelines discusses the issue of discrimination, noting the following:

54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.

55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.¹⁷

[27] The UNHCR document provides guidance in the determination of whether the experiences of a claimant have, cumulatively, risen to the level of persecution. The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook, affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution, it is necessary to “evaluate the claimant’s personal circumstances and vulnerabilities including age, health, and finances … “¹⁸

[28] The principal claimant’s personal circumstances include a low level of education, limited employment prospects, and limited finances. Balanced against these are the facts that he is relatively young ([XXX]), and in good health. This is also true of the female claimant.

[29] The claimants allege, and their counsel submits, that the measures of discrimination they faced in the Czech Republic has led to consequences of a substantially prejudicial nature for them, namely serious restrictions on their access to normally available educational facilities and their right to earn their livelihoods. In addition, counsel submits that, as Lovari, the claimants are made particularly vulnerable to discrimination. While conceding that many Roma are well integrated into Czech society, counsel described the [XXX] as being among the most excluded group of Roma in the Czech Republic. He stated that they, along with the [XXX], tended to live in isolated communities and were susceptible to the types of discriminatory practices the documentary evidence speaks to.

[30] In its report, Freedom House, estimated that the size of the Roma population in the Czech Republic was about 250,000 persons.¹⁹ Freedom House stated that Roma face “occasional threats and violence from right-wing groups.”²⁰^.

[31] The panel finds the two reports to be reliable, as the information they contain originates from sources that have an awareness of the situation of Roma in the Czech Republic. The sources cite information from NGOs and appear to be unbiased. Moreover, while the two reports are distinct, they contain and confirm substantially similar information. The panel gives significant weight to this objective information.

[32] Nonetheless, in assessing whether the discrimination the claimants experienced has risen to the level of persecution, the panel is mindful of the dicta of the Federal Court in Liang, regarding the necessity of evaluating a claimant’s personal circumstances and vulnerabilities including age, health, and finances when determining whether cumulative discrimination and harassment constitutes persecution.²¹

[33] The principal claimant’s personal circumstances are that:

• he is from one of the groups of Roma that are not integrated into Czech society;

• he lacks much formal education, does not speak the Czech language well, and has considerable difficulty finding employment;

• he is relatively young, with a growing family; and

• he and his family members have personally suffered a number of racist incidents, including witnessing an intimidatory march of skinheads through their community and an attack by skinheads in [XXX] 2014.

[34] In considering whether the incidents of discrimination amount, on a cumulative basis, to persecution, the panel is not persuaded that being refused service at an ice-cream parlour or being asked to leave a café amounts to persecution. Unpleasant yes, embarrassing, yes, but these appear to have been isolated incidents for which there may or may not be other explanations, which were not disclosed to the panel.

[35] The march through the claimant’s community was patently intended to frighten and intimidate all of the Roma in the community. The DOS Report indicates that:

Human rights issues included crimes involving violence or threats of violence against members of the Romani minority.

The government took steps to prosecute and punish officials who committed abuses in the security services and elsewhere in the government.²²

[36] In the panel’s view, this speaks to the willingness of Czech authorities to investigate and prosecute offences against the Roma and other minorities, which is at odds with the claimants’ position that state protection will not be available to them.

[37] The result is that it is not clear to the panel that the incidents of discrimination the claimants complain of rise to the level of persecution. At the same time, the panel is also mindful of the statements in paragraph 55 of the UNHCR Handbook relating to cumulative discrimination. In particular, the effect of the measures of discrimination on the mind of the claimants. In testimony, the principal claimant discussed the effect the various incidents have had on him. The panel found him to be largely credible, as he answered all questions put to him without seeming exaggeration or subterfuge. He expressed his apprehension of returning to the Czech Republic, and the certain discrimination he and his family would face. The panel is not an expert in [XXX] issues. However, it finds that, in all the circumstances of the case, including the principal claimant’s personal circumstances, the cumulative effect of the discriminatory incidents was that they have created a feeling of apprehension and insecurity in the mind of the principal claimant, as regards his future existence and that of his family if returned to the Czech Republic. The panel finds that this apprehension is not limited to their financial existence, as the principal claimant could go abroad to earn money as he has already done.

The claims of the associate claimants

[38] As stated earlier, each associate claimant relies on the same set of circumstances as the principal claimant. The panel finds that they have established a nexus to the Convention refugee definition as members of a particular social group, namely, family members of the principal claimant, as well as by virtue of their Roma ethnicity. As such, the panel determines that the outcomes of their claims will be similar to that of the principal claimant.

CONCLUSION

[39] For the reasons provided, the panel finds that there is a reasonable chance that the principal claimant would be persecuted on the ground of his Roma ethnicity if returned to the Czech Republic. The panel determines the principal claimant to be a Convention refugee. His claim for protection is accepted.

[40] The panel makes a similar determination with respect to the associate claimants. Their claims are also accepted.

(signed) H. Ross

January 7, 2019

¹ The Immigration and Refugee Protection Act, S.C.2001, c.27, as amended, sections 96 and 97(1).
² Refugee Protection Division (RPD) Rules SOR/2012-256, Rule 55.
³ Ibid., Rule 20.
⁴ Exhibits 2, Basis of Claim Form (BOC)-TB6-04818.
⁵ Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copies of Passports.
⁶ Exhibit 11, Personal Disclosure received July 19, 2019, at p. 1.
⁷ Exhibit 1, Package of Information from the Referring CBSA/CIC, Generic Application Form for Canada.
⁸ Exhibit 12, Personal Disclosure received July 19, 2019.
⁹ Exhibits 2-6, BOCs.
¹⁰ Exhibit 10, BOC Amendment.
¹¹ Exhibit 1, Package of Information from the Referring CBSA/CIC, Schedule A Form.
¹² Exhibit 7, National Documentation Package (NDP) for Czech Republic (March 29, 2019), item 13.4.
¹³ Ibid.
¹⁴ Ibid., item 2.1.
¹⁵ Ibid, item 2.2
¹⁶ Ibid., item 2.1.
¹⁷ Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, NCR/IP/4/REV.1, Reedited, Geneva, January 1992, UNHCR 1979, at paras 54-55.
¹⁸ Liang. Hanquan v. M.C.I. (F.C., no. IMM-3342-07), Tremblay-Lamer, April 8, 2008, 2008 FC 450 [Liang], at para. 22.
¹⁹ Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.5.
²⁰ Ibid.
²¹ Liang, supra, footnote 18.
²² Exhibit 7, NDP for Czech Republic (March 29, 2019), item 2.1.

All Countries Pakistan

2020 RLLR 56

Citation: 2020 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2020
Panel: R. Moutafova
Counsel for the Claimant(s): Peter J Wuebbolt
Country: Pakistan
RPD Number: TB8-13720
Associated RPD Numbers: TB8-13781, TB8-13786, TB8-13787
ATIP Number: A-2021-00655
ATIP Pages: 000177-000188

REASONS FOR DECISION

INTRODUCTION

[1] [XXX] (father and a principal claimant), his wife [XXX] (mother and an associate claimant), and their two children [XXX] (the adult child-claimant) and [XXX] (the minor claimant), are citizens of the Islamic Republic of Pakistan (hereafter Pakistan). They are claiming refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act¹, hereafter “the IRPA“.

[2] The claims were heard jointly pursuant to Rule 55 (1) of the Refugee Protection Division Rules².

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

[4] The Chairperson’s Guideline 4³ – Women Refugee Claimant’s Fearing Gender-Related Persecution was used to help assess the circumstances of this claim that may affect findings of fact and findings of mixed fact and law.

Procedural history

[5] The claims were heard on May 31, 2019, however the member of the Refugee Protection Division of the IRB did not render decision on the merits of the claims. The IRB decided to administratively re-hear the claims in a DeNovo hearing, presided over by another member of the Refugee Protection Division of the Board. This DeNovo hearing was held on September 17, 2020

DETERMINATION

[6] The panel finds on a balance of probabilities that the claimants are Convention refugees on the grounds of their views on religion which places them as Members of a Particular Social Group. Their religious views are of moderate Sunni Muslims with humanitarian and liberal mindset, who do not support the Jihad and the fundamentalism in Pakistan, and who are against the religious extremists’ methods of suiciding attacks against their perceived enemies.

[7] The reasons are as follows.

ALLEGATIONS

[8] The complete story alleging the basis of the Claimants’ fear is captured in their Basis of Claim (BOC) forms⁴, and was expanded upon in testimony by the three adult claimants. In short, the claimants fear that they will be harmed or killed by religious extremists and fundamentalists in Pakistan stemming from their unsuccessful attempt to recruit the son of the family (the adult child-claimant) as a Jihadist solder and a suicide bomber.

[9] Both parents are university educated individuals from Karachi. The family has only one son – the adult child-claimant, who is hafiz, a person who has memorised the Quran in Arabic language (the native language of the claimants is Urdu.). For this purpose, since the age of four he had attended a special religious school and had completed six classes, where he had studied also subjects from the general educational curriculum. He had obtained two Certificates for his achievements in the memorizing of the Quran.

[10] Then he continued his education in a secular, international private school in Karachi. As a devoted Muslim, in performing his duties to volunteer and help those in need, and also to maintain his memory about the verses of the Quran, he attended the [XXX] 3 days at the end of each week. There he was teaching the Quran to younger children who were from poor families and were receiving free board, food and religious education in the [XXX] at the mosque. The adult child-claimant was also praying in this mosque with his father on the Fridays.

[11] In the month of [XXX] 2017 several unknown and unintroduced men began appearing at the classes with the children (students) and began talking about Islam and about Jihad. They interpreted for the children some Qur’anic passages that refer to the Jihad and explained the meaning of the Quran as requesting the true Muslims to be part of Jihad. They spoke about the purpose in life as per the Qur’an and that being a better Muslim means fight against the nonbelievers like Christians, Ahmadi, Shia Muslims, etc. The men were not friendly, they tried to instill fear in the students and warned them to keep secret the meetings with the men and threatened them with death if they would dare to speak with anybody else about these teachings. The unknown men gave away written materials with information, purporting to be the right interpretation of the Qur’an and appealing to the readers to be true Muslims and followers of the Qur’an by joining Jihad.

[12] These materials were found inadvertently by the mother of the adult child-claimant (the associate claimant) and alarmed her. She asked her son for explanation, but he was very scared and did not tell her anything about the source of the materials. She sent her husband (the PC) to the [XXX] to inquire what is happening and the source of the materials.

[13] The father attended the [XXX] and was assured by the management that there is no danger of fundamentalism of the students there. However, the extremists continued to visit the classes in the [XXX] and the adult child-claimant became more and more scared with each visit. The mother continued to invite explanations from her son about the Jihad literature and he eventually confided what is going on. Thus, the parents prohibited their adult child-claimant to continue to teach in the [XXX], which was not taken well by the administration there.

[14] The management of the [XXX] tried multiple times to pressure the claimants to send back their son and initially the claimants were providing medical-problem-excuses for their son not attending any more. Eventually they got the courage to state, that their son – the adult child claimant is not going to attend any mote and immediately they were threatened over the phone by the administrator of the [XXX]. They started receiving calls from unknow persons threatening that they will regret if disobey and do not send again the son back to the [XXX]. The claimants filed a complaint with the police on [XXX] 2018.

[15] Further, the threatening phone calls continued and even on one occasion unknown people visited the family, angry from the disobedience to the orders the son to return to the [XXX]. They repeated the death threats against the entire family again.

[16] Few days later, on [XXX] 2017 a stone with a life-threatening letter around it was thrown through the window of the claimants. The letter was accusing them as infidels, deserving to be killed, because they vive western education of their children and engage in un-Islamic activities. A second complaint was immediately filed with the police⁵, which did not investigate any of the complaints.

[17] The adult child-claimant fell ill from fear. When recovered, he did not go any more to the [XXX], but he continued to attend his international high school. The commute to and back from the private school was arranged with a special school bus. Nevertheless, one day an unknown person attempted to pick up the boy after school. The security prevented the attempt and alarmed the administration and the family.

[18] The Police refused to accept any more complaints and to be involved in a such religios issue, which they pretended to be a minor, unimportant dispute about the education of the son. Understanding that no protection is coming, the scared family moved immediately to Islamabad, where they stayed with a cousin. The threatening phone calls continued on the cell phone of the mother, insisting that the adult child-claimant get back to the [XXX]. The claimants arranged their travel to Canada and arrived on [XXX] 2018. They were planning that the PC would be able to make some alternative arrangements for their safe return and residence back in Pakistan.

[19] The PC, who was working for the [XXX], and could not take a longer leave from his job, returned in Karachi on [XXX] 2018. He took precautious measures and stayed at his brother, visiting his home rarely only at night to pick documents and things of necessity.

[20] Encouraged that everything seems calm, one night, on [XXX] 2018, the PC stayed in the house and on the next day, when leaving for his prayer, he saw many abusive slogans painted on the house. He left quickly for his brother, but on his way he was attacked and shot at by two individuals on a motorbike. The PC arrived back in Canada on [XXX] 2018 and the entire family applied for refugee protection three days later.

ANALYSIS

Identity

[21] The panel finds, on a balance of probabilities, that all claimants have provided sufficient documentation to establish their personal identities and citizenship in Pakistan, based on their testimony and the certified true copies of their Government of Pakistan passports.⁶

Religious identity

[22] The panel is satisfied that the mother and associate claimant are Shia Muslim and that the father and principal claimant are Sunni Muslim, based on the testimony of the adult claimants, the donation receipts from [XXX] and personal documents provided into evidence⁷. The claimants explained that they are cousins and the differences in their religious views have never been an issue, because the extended family has broad, liberal, humanitarian views on religion and on the individual liberty.

[23] The panel accepts, on a balance of probabilities, that the adult child-claimant, is hafiz, a person who had memorised the Quran. He submitted two Certificates from the [XXX] from 2011 and 2012 for his achievements in memorization of the Holy Quran⁸. The claimant testified personally about his study experience and was able to demonstrate his knowledge by reciting verses from the Quran by heart in Arabic language. The panel is satisfied, on a balance of probabilities, that the adult child-claimant is a Sunni Muslim and hafiz.

NEXUS

[24] The panel finds that the claimants are Convention refugees in that they have a well-founded fear of persecution from religious extremists due to their humanitarian and liberal religious views on Islam, and, thus, the nexus to the Convention is their membership in a particular social group.

CREDIBILITY

[25] All three adult claimants provided testimony. The panel finds that the claimants are credible on the material aspects of their claims – specifically the panel finds that the adult child claimant is hafiz and that while teaching classes of poor children, boarding and studying in the local [XXX], he had been identified and targeted by extremists over a couple of meetings, who tried to pursue him to join Jihad and become a suicide bomber.

[26] Generally speaking, the claimants’ testimony was direct, sincere, detailed and spontaneous. Overall, the panel did not find any contradictions, inconsistencies, omissions or implausibility regarding any aspects of their account which could have undermined the credibility of their statements. They provided many details of the events, that have led to their fleeing Pakistan. In coming to this finding on credibility the panel also considered the numerous claimant-specific documents tendered into evidence⁹ by the claimants to support their allegations, namely: school documents, reports to the police, First Information Reports to the police, affidavits from eye eyewitnesses of the kidnapping incident from the school, letters of support from family members, letters from [XXX] from Pakistan and from Canada about the affiliation of the claimants, birth and death certificates, employment history records.

[27] The panel finds that the claimants were credible witnesses and did not find any discrepancies or inconsistencies between their testimony and the documents they submitted. The panel finds, that the evidence before the panel establish, on a balance of probabilities, that the adult child-claimant was a victim, together with the [XXX] boarding school children, of persuasion to join the Jihad and attempt to be recruited as a suicide bomber. When his parents intervened and stopped him from further attending the [XXX] and meetings with the religious extremists, the entire family was targeted for harm by the particular individuals, belonging to the religious extremists and fundamentalists in Karachi, Pakistan.

Objective basis of future risk

[28] Based on the credibility of the claimants’ allegations, and the documentary evidence set out above, the panel finds that the claimants have established a future risk to their lives and that they will be subjected to violence at the hands of Islamic extremists in Pakistan, owing to their identities of mixed family of Shia and Sunni Muslim, who has liberal and moderate religious views and is against Jihad, promulgated by religious extremists and fundamentalists.

[29] The objective documentary evidence that corroborate the allegations of the claimants are found in many documents: In item 1.18 of the NDP on Pakistan (NDP)¹⁰ the UK Home Office informs about the report of the UN Secretary General (UNSG) on Children and armed conflict, dated 16 May 2018, where is noted:

“The United Nations continued to receive reports of the recruitment and use of children, including from madrasas, and allegations of the use of children by armed groups for suicide attacks. In January [2017], TTP released a video showing children, including girls, being instructed in how to perpetrate suicide attacks.”

Further, the UK Home Office advises that According to the USSD human rights report for 2017:

“Nonstate militant groups kidnapped boys and girls and used fraudulent promises to coerce parents into giving away children as young as 12 to spy, fight, or die as suicide bombers. The militants sometimes offered parents money, often sexually and physically abused the children, and used psychological coercion to convince the children the acts they committed were justified. The government operated a center in Swat to rehabilitate and educate former child soldiers.”

[30] The suicide attacks are already part of the contemporary mode of terrorism of the militant groups. Item 7.1 of the NDP about the Jaish-e-Mohammed (JeM) militant group in Pakistan from the Research Directorate of the Immigration and Refugee Board of Canada reports that JeM was the first jihadi organization to launch suicide attacks (…) in 2002. Sources indicate that the group’s attacks are aimed at killing the maximum number of people, including security force personnel and civilians, targeting the Pakistani state and sectarian minorities. Despite bans on JeM’s activities, the group continues to operate openly in different areas of Pakistan and has claimed to have 300 suicide bombers available to attack (…).

[31] In a June 2010 article¹¹, The Economist quoted a Lahore-based political analyst as saying that:

“[t]he Punjab government is not only complacent, there is a certain ambivalence in their attitude’ towards extremists…..They compete for the religious vote bank”‘ (The Economist 3 June 2010). The same source states that as the death toll grows, so do concerns that even the appearance of official tolerance gives these organisations legitimacy……The Federal Interior Minister, Rehman Malik, declared that an “operation” was needed to clear out the Punjabi groups. He claimed that 44% of Pakistan’s madrassas – Islamic seminaries – are based in south Punjab and that groups like (…..) Jaish-eMohammed are “part of the Taliban and al-Qaeda.”

Reavailment

[32] The panel had concerns about the reavailment of the PC back to Pakistan after arriving in Canada and leaving his family here. The PC testified that he was having a lucrative employment in the [XXX] in Karachi and that he was not planning to seek refugee protection in Canada, when he fled Pakistan with his family after the incident, that looked like an attempt of kidnapping of his son. The PC testified that the family was planning to re-locate somewhere in Pakistan and he returned to maintain his job while obtaining re assignment or finding another solution for re-location. However, upon his return in Pakistan, although the precautionary measures, he became a victim of an assassination attack and his house was vandalized with abusive slogans with religious context. This made him re-assess the threats from the religious extremists and fundamentalists for the entire family and to find them real and inevitable. This is when he decided to seek protection from Canada.

[33] The panel finds, on a balance of probabilities, that the explanations of the claimant were reasonable and credible and that in the circumstances, the PC’s individual return to Pakistan does not amount to re-availment demonstrating a lack of subjective fear.

State Protection

[34] The claimants alleged that the state is unable or unwilling to provide them with adequate protection. The objective documentary evidence indicates that there is a lack of rule of law in Pakistan, including a lack of due process and a lack of government accountability. This means that abuse often goes unpunished, fostering a culture of impunity amongst perpetrators. The claimants have previously sought police protection in Pakistan, which was not provided to them due to unwillingness of the Police to be involved in such sensitive religious issue with violent agents of persecution/harm. The NDP contains numerous reports that outline deficiencies and inaction from state authorities in situations such as those, alleged by the claimants. There are reports that law enforcement authorities are often unwilling, or even when they are willing, are unable to protect from the attacks of religious extremists. Pakistani authorities have faced criticism for their failure to protect religious violence, for permitting militant organizations to operate with impunity, and for not investigating and punishing the groups responsible for violent attacks.¹² The United States Commission on International Religious Freedom described the response of the Pakistani government as “grossly inadequate state protection for Shia Muslims.”¹³ That same report notes that “the government has proven unwilling or unable to crack down on groups that repeatedly plan, conduct, and claim credit for attacks, or prevent future violence.”¹⁴

[35] Further the reports inform that:

“Pakistan’s police system suffers severe deficiencies in a number of areas, including equipment, technology, personnel, training, and intelligence capability. They are considered one of the most corrupt institutions in Pakistan. There have also been reports that the police have often failed to protect members of religious minorities, women and the poor.”¹⁵

[36] In addition, the News International, a Pakistani newspaper, stated in a 3 March 2014 article that, according to the NISP, there are a total of 60 banned organizations in Pakistan, including JeM, and although the government has taken steps to ban certain organizations, “metamorphism” of these groups and “implementation gaps” remain a challenge for the government’s internal security mechanisms.

[37] The panel, therefore, concludes that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

Internal flight alternative (IFA)

[38] The panel inquired as to whether the claimants could relocate to Hyderabad or Multan, or DG Khan and live safely. The male claimant testified that nowhere is safe for them in Pakistan and they would be at high risk of harm by the extremist organizations who would try to hurt him and his family.

[39] The panel finds that there is a well-founded fear of persecution which exists throughout the country, and there’s a serious possibility of persecution throughout Pakistan for the claimants. The conclusion is based not only on the statements by the claimants above, but also on evidence in the NDP, which indicates that, in general, an internal flight alternative would not be available where there is a likelihood that persons such as the claimants would be persecuted by extremists for their perceived un-Islamic position with respect to Jihad.

[40] There are reports within the documentary evidence that given the wide geographic presence and reach of religious extremists or anti-Shia militant groups, a viable internal flight alternative would generally not be available to individuals at risk of being targeted by such groups, as is the family of the claimants, which is of mixed reldigion: Sunni and Shia Muslim and which opposed involvement of their son in Jihad. The panel finds that there is a serious possibility of the claimants being persecuted throughout the country given their profile and the reach of the agents of persecution.

[41] Given the objective documentary evidence cited above regarding state protection and the claimants’ testimony the panel finds that there is no viable IFA for these claimants in Pakistan at this time.

CONCLUSION

[42] Based on the analysis above and to the relevant provisions of IRPA, the panel concludes that the claimants do have a well-founded fear of persecution on Convention grounds and, therefore, are Convention refugees, within the meaning of section 96 of IRPA.

[43] Therefore, the panel accepts these claims for refugee protection.

(signed) R. Moutafova

October 9, 2020

¹ Immigration and Refugee Protection Act, S.C. (2001), c. 27, as amended.
² Immigration and Refugee Board, Refugee Protection Division Rules, SOR 2012/256.
³ Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the IRPA.
⁴ Exhibits # 2.1, 2.2, 2.3.
⁵ Exhibit # 8: Disclosure – Personal documents.
⁶ Exhibit # 4.1.
⁷ Exhibit # 8.
⁸ Idem.
⁹ Idem.
¹⁰ Exhibit # 3 – NDP on Pakistan, version from 31 March 2020.
¹¹ Idem, item 7.1.
¹² Idem, item 1.8: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017.
¹³ Idem, items## 12.5 and 1.22.
¹⁴ Idem, item 12.5.
¹⁵ Idem.