Category: All Countries

2020 RLLR 7

Citation: 2020 RLLR 7
Tribunal: Refugee Protection Division
Date of Decision: January 28, 2020
Panel: Jacqueline La
Counsel for the Claimant(s): Cynthia Niteka
Country: Burundi
RPD Number: MB7-24231
ATIP Number: A-2021-00540
ATIP Pages: 000044-000049

REASONS FOR DECISION

INTRODUCTION

[1] The claimant, [XXX], born on [XXX], 1967, is a citizen of the Republic of Burundi. He is claiming protection in Canada under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2] The claimant is of Tutsi ethnicity. From 1986 until his retirement in 2010, the claimant worked [XXX].

[3] In 2015, when Burundian president Pierre Nkurunziza declared that he wanted to run in the elections, even though he knew that a third presidential term violated the provisions of the Constitution, which set the limit at two terms, Burundi was plunged into a serious crisis marked by ethnic clashes. The Tutsis were accused of trying to destabilize the government, and former members of the Tutsi-dominated Burundian armed forces (ex-FAB) were apparently targeted by the Burundian authorities.

[4] When he realized that several of his former colleagues had been victims of targeted killings, and after becoming a person of interest to the police, the claimant started sensing that his own safety was at risk.

[5] Accordingly, the claimant left Burundi on [XXX], 2017, and after a brief two-week stay in the United States, he came to Canada and claimed refugee protection.

ANALYSIS

Identity

[6] The claimant’s identity was established to the panel’s satisfaction by a copy of his passport issued by the Burundian authorities that was entered on the record.¹ The panel concludes that it is an acceptable document establishing identity within the meaning of section 106 of the IRPA.

Credibility

[7] In general, no contradictions, omissions or implausibilities were identified in the claimant’s testimony. In support of his allegations about his lengthy career in the Burundian [XXX], the claimant filed a photograph of himself [XXX],² a certificate of service issued by the [XXX],³ and his bank: statement showing deposits of his retirement pension from the [XXX].⁴

[8] In short, the panel finds that the claimant is a credible witness.

[9] So, what does the documentary evidence on the ex-FAB say?

[10] For decades, the Tutsis were given preferential treatment over their Hutu compatriots in the FAB.

[11] However, following the Arusha peace agreement and the election of President Nkurunziza, a Hutu, in 2005, the FAB had to integrate thousands of former Hutu rebels into the corps. As a result, many Tutsi soldiers from past military regimes were quietly retired from their commands, transferred or dispersed to isolated provincial locations.⁵

[12] In 2015, there was strong opposition to President Nkurunziza’s decision to run in the presidential elections because it violated the constitution, which limited the presidency to two terms.

[13] Divisions between the ethnic groups in Burundi started to manifest themselves, especially within the security forces.⁶ The movement against the third term became more ethnically driven against the Tutsis and became more about the military.⁷ Since the beginning of the crisis and especially since January 2017, the army has been the target of a purge and reprisal campaigns mainly against the ex-FAB, both active and retired.⁸ The Burundian authorities have been accused of being involved in dozens of targeted murders, forced disappearances and arbitrary arrests of former soldiers and police officers in the Tutsi-dominated Burundian armed forces. The evidence also indicates that the bodies of ex-FAB soldiers, both active and retired, are often found in rural or urban areas.⁹ The ex-FAB are considered to be disloyal elements in the army and likely to tum against President Nkurunziza because of their ethnicity.

[14] So, after learning that two of his former [XXX] had been arrested by the police, the claimant decided not to respond to the summons from the commissioner general¹⁰ and to leave the country.

[15] Given those circumstances, even though the claimant was not personally targeted before he left his country, the evidence shows that ex-FAB members are persecuted by the current regime by reason of their real or imputed political opinion. As Justice Shore eloquently stated in Matore,¹¹ “Something must certainly be done before we see the corpses in the media.”

State protection

[16] The evidence is clear: opponents of the regime, or people perceived as such, as in the case of the ex-FAB, cannot expect to obtain protection from protection and security services, who are politicized in favour of the Nkurunziza regime.¹²

[17] Therefore, at this time, it is simply unreasonable to expect that the claimant could obtain adequate protection from the authorities, when they are his agent of persecution. Accordingly, the panel is of the opinion that the presumption of state protection has been rebutted.

Internal flight alternative

[18] As mentioned, in this case, the agent of persecution is the entire state apparatus, which has the interest and the necessary resources to find the claimant no matter where he is, especially in a small country like Burundi. Therefore, the panel concludes that there is no internal flight alternative.

CONCLUSION

[19] Having considered all the evidence, the panel concludes that the claimant has discharged his burden of establishing that there is a serious possibility that he would be persecuted on one of the five Convention grounds. The panel determines that he is a “Convention refugee.”

DECISION

[20] The refugee protection claim is allowed.

(signed) Jacqueline La

January 28, 2020

¹ Document 1 – Information package provided by the Canada Border Service Agency and/or Immigration, Refugees and Citizenship Canada: Passport.
² Document 4 – Exhibit P-11: Photograph of [XXX] in a [XXX]. Document 4 – 3
³ Exhibit P-1: Certificate of service.
⁴ Document 4 – Exhibit P-7: Cooperative statement (for [XXX] retirement pension).
⁵ Document 3 – National Docupentation Package, Burundi, March 29, 2019 (NDP on Burundi), Tab 13.1: Response to Information Request, BD1105750.FE, Immigration and Refugee Board of Canada, March 6, 2017.
⁶ Supra, footnote 5.
⁷ Idem.
⁸ Document 3 – NDP on Burundi, Tab 2.7: Burundi on the Brink: Looking Back on Two Years of Terror, International Federation for Human Rights; Ligue burundaise des droits de l’homme [Burundian human rights league], June 2017, p.12.
⁹ Idem.
¹⁰ Document 4 – Exhibits P-2 and P-3: Convocations de la police nationale du Burundi [summonses from the Burundi national police].
¹¹ Matore v. Canada (Citizenship and Immigration), 2017 FC 1009.
¹² Document 3 – NDP on Burundi, Tab 2.1: Burundi. Country Reports on Human Rights Practices for 2018, United States, Department of State, March 13, 2019.

All Countries Democratic Republic of Congo

2020 RLLR 6

Citation: 2020 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: February 13, 2020
Panel: Kristelle De Rop
Counsel for the Claimant(s): Russell L Kaplan
Country: Democratic Republic of Congo
RPD Number: MB7-18074
ATIP Number: A-2021-00540
ATIP Pages: 000037-000043

REASONS FOR DECISION

INTRODUCTION

[1] [XXX] (the claimant) is a citizen of the Democratic Republic of the Congo (DRC) and is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2] The claimant’s complete allegations are set out in his Basis of Claim Form (BOC Form).¹ The following is a short summary.

[3] The claimant alleges that he joined a not-for-profit organization (NGO) entitled Congo Handicap in [XXX] 2013 as a [XXX].

[4] The claimant alleges that the NGO’s goals are to advocate and stand up for persons with disabilities in South Kivu and to fight against all crimes, including rape.

[5] The claimant states that, on [XXX], 2017, he was summoned to the national intelligence agency office (ANR), where he was detained and criticized for his involvement in a report exposing [XXX] who allegedly committed rape.

[6] The claimant alleges that he fears he will be arrested again and killed should he return to his country as a result of his involvement in the NGO and in published reports exposing [XXX].

DETERMINATION

[7] For the reasons set out below, the panel concludes that the claimant is a Convention refugee by reason of his imputed political opinion as a result of his involvement in an NGO that exposed military officers for their crimes against persons with disabilities.

Identity

[8] The claimant’s identity was established to the panel’s satisfaction by means of a copy of his passport issued by the Congolese authorities filed on the record.²

ANALYSIS

Credibility

[9] The panel finds that the claimant was a credible witness. The panel did not identify any serious contradictions, omissions or inconsistencies that could not be reasonably explained during his testimony. The panel considers that the claimant gave credible testimony on the essential aspects of his claim. As a result, the panel believes that the claimant’s allegations in his BOC Form are truthful, on a balance of probabilities.

[10] The panel considers that the claimant gave credible testimony on his involvement and role in Congo Handicap and in reports exposing armed forces officers. The panel also considers that the claimant gave spontaneous and credible testimony on his and his parents’ detention at the ANR.

[11] The panel notes that the claimant submitted as evidence the following documents that corroborate his testimony: Congo Handicap membership card with proof of payment, [XXX] card, letters from the ANR, article from the awareness campaign held in [XXX] 2015, and a number of photographs taken at events related to his duties.³

[12] The claimant explained that, before his detention, he presented a detailed and complete dossier at his NGO’s quarterly meeting concerning cases of rape by officers in the DRC’s [XXX], the FARDC, including [XXX], [XXX], [XXX], [XXX] and [XXX]. He explained that his role in the NGO was to [XXX] in the community of persons with disabilities and to identify information likely to bring the culprits to justice.

[13] The claimant testified that [XXX] wanted to use him as a spy in his NGO and that he had an informer in his group and should be smart and accept the offer.

[14] While the claimant was already in Canada to attend a work-related conference, his brother called to inform him that a convoy of soldiers visited their home, that the soldiers were looking for him and that, after searching his room, they left with all his personal effects. The soldiers also took his parents away with them. After being detained for two days, his parents were released on a promise to report to the ANR every two weeks until the claimant returned home.

[15] The claimant testified that another report exposing cases of abuse and rape was supposed to be released when he returned from Canada in [XXX] and that the soldiers left with his information.

[16] The claimant also referred to the murder of Dr. [XXX]⁴ on [XXX], 2017. The claimant had worked with this [XXX] when persons with disabilities were raped and needed care. The claimant testified that the doctor’s cause of death was never disclosed. The claimant is convinced that the doctor was killed because of his involvement with victims and his possible possession of incriminating information regarding certain [XXX].

Change of circumstance

[17] At the hearing, the panel asked the claimant why he thought that he would be at risk should he return to the country, given the change in circumstances, namely, the election of the new president in January 2019. He explained that only the leader changed, but that all the rest remains unchanged. He stated, as an example, that the security service and police [XXX] remain the same. He added that the new president does not have a majority in either parliament or the serrate.

[18] The panel notes that, on December 30, 2018, Félix Tshisekedi, the leader of the UDPS party, was elected president. However, sources state that the transfer of real power is debatable. The former president Kabila is now Senator-for-Life, and his party won sweeping majorities in the parliament and provincial assemblies.⁵ Some contest the legitimacy of the elections.⁶ The post-election demonstrations turned violent, and the security forces responded with excessive force.⁷ The authorities are still being accused of political killings and arbitrary arrests. After Tshisekedi’s election, student demonstrations against power and water cuts and rising tuition fees led to an intervention in which the police shot and killed demonstrators.⁸

[19] The panel notes that the documentary evidence⁹ states that an [translation] “easing” of political tensions occurred. The same document states that the country had a [translation] “new openness,” that opposition radios reopened, that exiled politicians returned to the country and that political prisoners were released. However, the same evidence also states that, after the release of some political prisoners, human rights advocates were still waiting for the conditional release of the 700 prisoners who had been pardoned.¹⁰

[20] In light of the foregoing and in the claimant’s specific case, the panel concludes that the claimant would not be safe in the DRC, which remains unstable despite the recent change in government. The claimant stated that he would continue to face a risk since the same repressive structures remain in place and that, despite the change in leader, the situation remains unchanged. On the basis of the claimant’s testimony and the documentary evidence, the panel concludes that the claimant established that he faces a risk of persecution by reason of his imputed political opinion linked to his role and involvement in the NGO.

State protection

[21] In light of the objective evidence, the panel concludes that the presumption of state protection is rebutted. The claimant would not obtain adequate state protection in the DRC because the agents of persecution are part of the state.

[22] According to the objective documentary evidence, sources indicate that the state security forces, including the police, are undisciplined and corrupt.¹¹ They are often accused of arbitrary, political and extrajudicial killings.¹² State security forces are also accused of having weak leadership, low capacity and a lack of training and of engaging in extortion.¹³

[23] The panel concludes that the objective evidence constitutes clear and convincing evidence that rebuts the presumption of adequate state protection in the DRC for the claimant.

Internal flight alternative

[24] The panel also assessed whether the claimant had an internal flight alternative (IFA).

[25] In this case, the agents of persecution are state agents, namely, the Congolese government intelligence agency. According to the objective documentary evidence, people in situations similar to that of the claimant face the same difficulties throughout the country. The claimant has reason to fear the authorities because the police and military forces are present and in control throughout the country. The panel considers that the claimant would face a serious possibility of persecution throughout the DRC. As a result, the panel considers that it would be unreasonable to expect the claimant to return to the DRC.

[26] The panel therefore concludes that an IFA is not available to the claimant.

CONCLUSION

[27] In light of the foregoing and after reviewing all the evidence, the panel determines that the claimant, [XXX], has established that he faces a serious possibility of persecution in his country of origin, the DRC. Therefore, the refugee protection claim is allowed.

(signed) Kristelle De Rop

February 13, 2020

¹ Document 2 – 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, Claimant’s Congolese passport.
³ Document 5 – Evidence submitted by the claimant (exhibits 1 to 14).
⁴ Document 5 – Exhibits 12 and 13 (articles concerning the death of Dr. [XXX]).
⁵ Document 3 – National Documentation Package (NDP), Congo, Democratic Republic of the (DRC), July 31, 2019, Tab 4.3: Democratic Republic a/Congo: Background and US. Relations. United States. Congressional Research Service. April 30, 2019.
⁶ Document 3 – NDP, DRC, Tab 4.11: DR Congo: Post-Election Killings Test New President. Human Rights Watch. February 14, 2019.
⁷ Idem.
⁸ Idem.
⁹ Document 3 – NDP, Tab 4.2.
¹⁰ Idem.
¹¹ Document 3 – NDP on the DRC, March 29, 2019, Tab 2.1: Democratic Republic of the Congo. Country Reports on Human Rights Practices for 2018. United States. Department of State. March 13, 2019.
¹² Idem.
¹³ Idem.

All Countries Sri Lanka

2020 RLLR 4

Citation: 2020 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: October 20, 2020
Panel: A. W. Chin
Counsel for the Claimant(s): Meghan Wilson
Country: Sri Lanka
RPD Number: TB9-16354
ATIP Number: A-2021-00540
ATIP Pages: 000028-000032

DECISION

[1] MEMBER: This is a decision for the claimant [XXX] file number TB9-16354. The hearing date is October the 20th, 2020.

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

[3] You are claiming to be a citizen of Sri Lanka and are claiming refugee protection pursuant to Sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act.

[4] I find that you are a Convention refugee on the grounds of your imputed political opinion for the following reasons:

Allegations:

[5] Your allegations are found in your Basis of Claim Form and related narrative which are found in Exhibit 2.

[6] You alleged that you lived in the Vanni area during the civil war which was an LTTE controlled area. You then moved to Jaffna under army control where they grew to be suspicious of you since you had come from Vanni. You moved to Columbo in 2006.

[7] You … you allege that on [XXX] of 2008, the police raided a market where you were located. They checked your ID and found that you were found from Vanni and then you were detained and abused for two days. They asked you questions about your involvement in the LTTE and you were released.

[8] On [XXX], 2009, you allege that you moved to Chani, India on a tourist visa and registered as a refugee there and subsequently got a degree in [XXX] there. During this time you allege that you’d taken interest in Tamil refugees and started work on a documentary outlining the challenges that they face.

[9] Sometime in [XXX] of 2017, you allege that you mailed a portion of the documentary to a Tamil leader in Jaffna. You then returned to Columbo on [XXX] of 2017.

[10] Upon returning at the airport, you allege that you were detained where you were questioned, abused, and accused of spreading anti-government propaganda and being a supporter of the LTTE. You were held for [XXX] days and then released after you learned that your mother had bribed the police.

[11] You allege that on [XXX] of 2018, when you were [XXX] for a [XXX] you were approached and detained by at TIB Head Office in Columbo where you were beaten and questioned again.

[12] You allege that you managed to escape while left unattended at the [XXX] hospital. You fled to your aunt’s house for three months after which point an agent arranged for your departure to Canada.

[13] You allege that you’ll be harmed or killed anywhere throughout Sri Lanka since you were found in Columbo and you will not be protected.

Identity:

[14] With respect to your identity, I find your identity has been established, on a balance of probabilities, as a national of Sri Lanka by your testimony and the supporting documents you provided, namely your expired passport, birth certificate, and national ID card.

Nexus:

[15] I find there is a nexus between what you fear in Sri Lanka and Section 96, namely on the ground of imputed political opinion for the reasons that follow.

Credibility:

[16] In terms of your general credibility I found you to be a credible witness and therefore accept what you have alleged in your oral testimony and your Basis of Claim Form.

[17] In support of your claim you provided or rather counsel provided a country conditions document which supports what I’ve noted in the objective evidence.

[18] You also provided education records and evidence of your prior refugee registration in India, a letter from your mother, a letter from your aunt which supports where you were hiding, a letter from your friend who attested to your detainment in [XXX], is [XXX] 2018, and a letter from a member of parliament in Jaffna. You also provided a photo of your injuries.

[19] I’ve reviewed that evidence and I found it to be consistent with the testimony that you’ve given today.

[20] You testified in detail about the detainments and abuses that you had to endure, specifically, the [XXX] detainment where you were at the market, the [XXX], 2017 detainment when you were coming back from the airport, and the [XXX], 2018 detainment when you were preparing for the memorial service.

[21] I found your testimony in this regard to be credible. Therefore, I find that you’ve established your subjective fear, on a balance of probabilities.

[22] With respect to the objective evidence, it indicates that there’s an ongoing risk for Tamils who are suspected of supporting the LTTE. These supporters, whether real or perceived, are still subject to abuses at the hands of Sri Lankan authorities, including arbitrary arrest and detention where torture and other human rights infringements are known to occur.

[23] I further note that the objective evidence indicates that the majority of victims of enforced disappearances have been male.

[24] COUNSEL: Sorry, can you lift your … your mask up?

[25] INTERPRETER: Yeah, sorry.

[26] COUNSEL: Thank you.

[27] MEMBER: Thank you.

[28] Item 1.8 indicates that the Sri Lankan military police and intelligence services have continued to practice torture, including other forms of sexual torture in the years of peace since the end of the armed conflict.

[29] Those at a particular ongoing risk of torture includes Tamils with real or perceived associations with the LTTE at any level and whether or not it’s current or historic.

[30] Torture and sexual violence have occurred under the new government in known army camps throughout the north of Sri Lanka and there are secret camps that are still operating in unknown but diverse places throughout Sri Lanka.

[31] I’ve also found there to be evidence of detainments at airports. Item 1.4, specifically Section 8.2.5, indicates that there … arbitrary detentions still occurs for Tamils returning to Sri Lanka from abroad and that these individuals are monitored. More information can be found in Item 13.5.

[32] I found this evidence to be consistent with the testimony that you gave today and what’s in your narrative and therefore I find that your subjective fear has an objective basis. Therefore, I find that you’ve established a well-founded fear within the meaning of Section 96, on a balance of probabilities.

[33] Therefore, on a balance of probabilities, I find that those three detainments that I had mentioned earlier had occurred in the manner that you allege.

State Protection:

[34] I find your agent of persecution is the Sri Lankan police and military groups which are Federal institutions. Therefore, I find it objectively unreasonable for you to seek out protection and that State protection could not be seen as being reasonably forthcoming. I find the presumption of State protection is rebutted.

[35] I’ve also considered whether there is a viable internal flight alternative for you. Given that the agent of persecution is also the State, I also find that the claimant’s IFA analysis fails at the first prong of the test and therefore an IFA is not available to this claimant, as you’d be located by the police or authorities throughout Sri Lanka.

[36] In conclusion I found you to be credible in relation to the material elements of your claim. You testified in a straightforward and spontaneous manner and you didn’t embellish your story.

[37] Therefore, on the basis of the totality of the evidence I accept your claim pursuant to Section 96 of the Immigration and Refugee Protection Act and I find that you’re a Convention refugee. Your claim is accepted.

———- REASONS CONCLUDED ———-

All Countries Democratic Republic of Congo

2020 RLLR 3

Citation: 2020 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2020
Panel: Anika Marcotte
Counsel for the Claimant(s): Nico Breed
Country: Democratic Republic of Congo
RPD Number: VB9-08742
Associated RPD Number(s): VB9-08743
ATIP Number: A-2021-00540
ATIP Pages: 000020-000027

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] as a citizen of Congo-Brazzaville and her minor child [XXX] who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the ” Act”).¹ The claimants’ minor son, [XXX], is a citizen of the United States (US). As such, his claim will be assessed against that country.

[2] At the start of the hearing, the principal claimant was designated as the representative for the minor claimant.

[3] In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[4] The principal claimant has outlined her reasons for seeking Canada’ s protection in her Basis of Claim (BOC) form², as well as through her testimony. The principal claimant fears returning to Congo- Brazzaville because she fears further physical and sexual violence at the hands of Mr. [XXX] the minor claimant’ s father.

DETERMINATION

[5] I find that the principal claimant is a Convention refugee pursuant to section 96 of the Act.

[6] I find that the minor claimant is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to subsection 97(1).

Identity

[7] The principal claimant’s identity as a national of Congo-Brazzaville is established by her testimony and passport³ in evidence. The claimant’s minor son’s identity as a national of the US is established by his passport.⁴ I am satisfied of their identity by these documents.

Countries of Reference

[8] In order for a claim for refugee protection to be successful, the Act requires that a claimant must establish a claim against each of their countries of nationality.

[9] The minor male claimant did not advance a claim against the US. Indeed, there is no evidence before me that he faces a risk of persecution or a risk to life or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture, in the US. Accordingly, his claim for protection is rejected.

Credibility

[10] In refugee determination cases, there is a presumption that claimants and their allegations are truthful, unless there are reasons to doubt it. I found the principal claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner, offering spontaneous answers to my questions. In this case, there were no material inconsistencies or contradictions within the claimant’s testimony that were not reasonably explained or that undermined her credibility with respect to her allegations.

[11] I find the principal claimant’s testimony credible and believed the allegations in support of her claim. She met the agent of harm in 2015 while she worked in her grandmother’s restaurant. His bodyguard approached her asking for her phone number telling her Mr. [XXX] found her attractive. The claimant noted that she was aware that the agent of harm was the [XXX] of the President, a [XXX] She also knew that he had two [XXX]. She provided her phone number and Mr. [XXX] called her to set up a meeting. Over the course of 2015 to 2017 the agent of harm provided the claimant with an apartment in Pointe Noir and Brazzaville where he would come spend time with her. He also provided her with two bodyguards who would act as chauffeurs, run errands for her and monitor her. A few months into their arrangement the agent of harm started to physically and sexually assault her. She never sought protection from the police as she feared her assailant’ s power over the police and that they would not take claims of domestic abuse seriously. In [XXX] 2017, the violence escalated to such a point that the claimant passed out and was brought to the hospital the next day by a maid. At the hospital she learned that she was pregnant and decided to leave for the US in [XXX] 2017.

[12] The principal claimant returned to Congo-Brazzaville in [XXX] 2017 in order to get her older child that she had left with her mother, as she feared for her safety after the agent of harm had contacted her mother asking her whereabouts. The claimant met with Mr. [XXX] in [XXX] 2017 after he reached out to her. During that encounter, he threatened her and her children. During this encounter she found the agent of harm in a sexually compromising situation with the claimant’s minor daughter. Fearing for her life and those of her children the principal claimant left for the US in [XXX] 2017.

[13] The principal claimant submitted corroborative documents including identity documents, birth certificates and letters from the hospital⁵ consistent with her BOC⁶ and testimony. The objective country conditions evidence in the National Documentation Package (NDP) also substantiates the claimant’s allegation concerning the prevalence of domestic abuse in Congo Brazzaville. Based on the presumption of truthfulness, the claimant’s testimony, and the corroborative evidence, I find, on a balance of probabilities, the principal claimant to be a credible witness who has established that she is the victim of domestic violence at the hands of her former partner.

Well-Founded Fear of Persecution and Risk of Harm

[14] I find that the principal claimant has established sufficient credible evidence to demonstrate that she faces more than a mere possibility of persecution if she returns to CongoBrazzaville.

[15] The agent of harm demonstrated his motivation in seeking out the principal claimant upon her return to the Congo-Brazzaville, as well as through ongoing inquiries as to her whereabouts with the principal claimant’s mother. The principal claimant also testified that the agent of harm did not want her to have his child and fears severe repercussions should she return to the country. This demonstrates a prospect of further violence if the claimant returns to CongoBrazzaville.

[16] I find that the claimant has a well-founded fear of persecution based on her membership in a particular social group based on her gender as a woman, which is an immutable characteristic as defined in the Ward case.⁷ As her fear of persecution is based on belonging to a particular social group, her allegations form a nexus to a Convention ground.

[17] According to Country Reports 2013, domestic violence against women, which includes rape and beatings, is “widespread” in the Republic of the Congo⁸ (US 27 Feb. 2014, 20). According to the report by APC and AZUR développement, the rate of domestic violence and incest across the country is [translation] “rather high,” and “two thirds of all cases of violence reported to the police and the gendarmerie concerns various forms of domestic violence” (ibid., 5, 7).⁹

[18] The objective evidence further highlights that among the human rights violations committed in 2013 in the Republic of the Congo, the US Department of State’s Country Reports on Human Rights Practices for 2013 reports acts of discrimination and violence against women, including acts of domestic violence and sexual violence (US 27 Feb. 2014, 1). Amnesty International (AI) points out that [AI English version] “serious human rights violations” including cases of rape and other sexual violence occurred in 2014 in the Republic of the Congo (AI 2015). In correspondence sent to the Research Directorate, the Executive Director of AZUR développement, an association [in Brazzaville] located in nine departments in the country (AZUR développement n.d.) that aims to advance women’s rights and fights violence against women (APC and AZUR développement Mar. 2015, 4), states that,

[translation] [w]omen are subjected to various forms of violence daily, in particular, physical violence, such as beatings and injuries […]; sexual violence (rape, sexual harassment […]); [and] mental violence (insults, slander, verbal threats) (AZUR développement 14 Apr. 2015).

According to the Congolese Minister for the Promotion of Women and Women’s Integration into Development (Promotion de la femme et de l’Intégration de la femme au développement), women and children are subjected to sexual harassment and psychological violence in their family, at school, at work or in the street on a daily basis (Republic of the Congo 5 Mar. 2013, 3).¹⁰

[19] Based on the claimant’ s history of abuse by the agent of harm, the influential position of the agent of harm, and the objective evidence, I find that there is a serious possibility of persecution if the claimant were to return to Congo-Brazzaville.

State Protection

[20] I find that adequate state protection would not be reasonably forthcoming in this particular case. According to the objective evidence significant human rights issues in Congo Brazzaville include (…) violence against women and girls to which government negligence significantly contributed (…). The government took limited steps to prosecute or punish officials who committed abuses, and official impunity was a problem.¹¹

[21] Though the objective evidence indicates that Congo-Brazzaville has some legislative framework for rape, Country Reports 2013 states that “the government [has] not effectively enforce[d] the law” regarding rape and sexual harassment (US 27 Feb. 2014, 20-21). According to that same source, a Congolese women’ s group stated that “the penalties for rape ranged from as little as several months’ imprisonment to rarely more than three years,” and local and international Non-Governmental Organizations (NGOs) have observed that “[f]ewer than 25 percent” of reported rape cases were prosecuted in 2013 (ibid., 20).¹²

[22] The principal claimant testified that she never sought police protection given the high- level status of the agent of harm and that police would see this as a domestic matter, which is corroborated with the objective country evidence.

[23] Given the objective evidence and the influential position of the agent of harm I find that there is no operationally effective state protection available to the claimant in this particular circumstance and that the presumption of state protection is rebutted.

Internal Flight Alternative (IFA)

[24] Based on the evidence before me, I find that the principal claimant would face a serious possibility of persecution throughout the country given the profile of the agent of harm with his political connections and as a colonel in the army. Documentary evidence points that military members can act with impunity and that given the agent of harm’s position, resources at his disposal and motivation he demonstrated in seeking the principal claimant when she initially left him and then when she returned to the Congo- Brazzaville, I do not find that there is a viable IFA available to the principal claimant in this case.

CONCLUSION

[25] Having considered all of the evidence, I find that the principal claimant is a Convention refugee as set out in section 96 of the Act. Her claim is therefore accepted.

[26] I find that the minor claimant, [XXX] is neither a Convention refugee as laid out in section 96 of the Act, nor a person in need of protection as per section 97(1) of the Act and reject his claim.

(signed) Anike Marcotte

August 20, 2020

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27.
² Exhibit 2.
³ Exhibit 4.
⁴ Exhibit 1.
⁵ Exhibit 6, and 7.
⁶ Exhibit 2.
⁷ Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
⁸ Republic of the Congo and Congo-Brazzaville are the same country.
⁹ Exhibit 3, National Documentation Package (NDP, Republic of the Congo, April 30, 2020, Item 5.3, Response to Information Request (RIR) COG105144.FE.
¹⁰ Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.
¹¹ Exhibit 3, NDP, Item 2.1.
¹² Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.

All Countries Tanzania

2020 RLLR 2

Citation: 2020 RLLR 2
Tribunal: Refugee Protection Division
Date of Decision: December 30, 2020
Panel: Marshall Schnapp
Counsel for the Claimant(s): Deryck Ramcharitar
Country: Tanzania
RPD Number: TB9-35424
Associated RPD Number(s): TB9-35456, TB9-35472
ATIP Number: A-2021-00540
ATIP Pages: 000015-000019

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claims of [XXX] and his wife and child, who claim to be a citizens of Tanzania, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules. In addition, the Immigration and Refugee Protection Act requires the designation of a representative for all claimants less than 18 years of age. The tribunal designated [XXX] as representative for his minor child included in the claim, being [XXX].

ALLEGATIONS

[3] The claimants’ allegations are set out in a common Basis of Claim Form (BOC)¹, The claimants’ allegations are that the principal claimant and his wife fear persecution by the government and others because of the principal claimant’s political opinion and involvement with ACT, a political opposition party.

[4] The principal claimant is a 47-year-old man. He stated in his BOC and his oral testimony that he fears he and his wife will be detained, tortured and killed at the hands of state authorities and other members of different political parties for his political opinion and involvement with ACT, a political party in opposition to the ruling party.

[5] Specifically, he stated how in 2007 when he was in hiding, his wife was attacked at their home when unknown people came looking for him. He also explained how his family had to move due to threats and from 2016 through 2019 he received threatening phone calls and messages to stop supporting ACT, an opposition party to the government. In 2019, [XXX] the associate claimant and brothers of the principal claimant also started receiving threatening text messages from unknown individuals warning them that the principal claimant should stop supporting ACT, the opposition political party

DETERMINATION

[6] The panel finds that the Claimants are Convention refugees pursuant to section 96 of the Act because they face a serious possibility of persecution by reason of the principal claimant’s political opinion.

ANALYSIS

[7] The determinative issue in this case is credibility.

Identity

[8] The panel finds the identity of all the claimants as nationals of Tanzania is established by their testimony and the supporting documentation filed including their passports.²

Credibility

[9] When claimants swear to the truth of certain allegations, this gives rise to a presumption that those allegations are true unless there is valid reason to doubt their truthfulness. The panel finds no valid reason to doubt the truthfulness of the claimants’ allegations, as found in their BOC.

[10] The panel accepts their narratives, and find, on a balance of probabilities, that their alleged fear of persecution is consistent with the objective evidence available about present conditions in Tanzania. Further, the claimants have corroborated their allegations through documentation, including copies of the principal claimants’ ACT membership documents, medical documentation, and supporting affidavits and letters from family members and individuals aware of the principal claimant’s political activities.³

[11] The panel finds the principal and associate claimants to be credible witnesses and therefore believe what they allege in support of their claims. They both testified in a straightforward manner and there were no relevant inconsistencies in their testimony or contradictions between the testimony and the other evidence before the panel which has not been satisfactorily explained.

[12] Having accepted the claimants to be credible, the panel accepts they have a subjective fear persecution by reason of political opinion.

Nexus

[13] There is a clear nexus between the claimants’ fear of persecution in Tanzania and the Convention ground of political opinion. Accordingly, the claims will be assessed under s. 96 of IRPA.

Objective fear

[14] The claimants subjective fear is well-founded. It accords with the National Documentation Package (NDP) version September 30, 2020. The documentary evidence before the panel indicates that the current regime has escalated a campaign of intimidation, violence and arrests against political opponents, activist, and others since 2015.⁴ There are reports of people who are critical of the government going missing, some have returned badly beaten and others have been killed and the ruling party using militias to engage in violence and intimidation around election time.⁵

[15] The panel finds that the minor claimant is also at risk by virtue of the principal claimant’s political opinion.

[16] Based on the evidence, the panel finds there is more than a mere possibility that the claimants will be persecuted if they return to Tanzania.

State Protection

[17] The panel find that it would be objectively unreasonable for the claimants to seek the protection of the state considering in their circumstances the state of Tanzania is the agent of persecution.

Internal Flight Alternative (IFA)

[18] The panel has considered whether a viable internal flight alternative exists for the claimants. Based on the evidence, the panel finds that there is a serious possibility of persecution throughout Tanzania because it is the government that the claimants fear.

CONCLUSION

[19] Based on the analysis above, the panel concludes that you are all Convention refugees. Accordingly, the panel accept your claims.

(signed) Marshall Schnapp

December 30, 2020

¹ Exhibit 2.1, 2.2, 2.3,
² Exhibit 1
³ Exhibit 7.
⁴ Exhibit 3, National Documentation Package (NDP), Tanzania, September 30, 2020.2.1
⁵ Exhibit 3, NDP, Item 2.1.

All Countries Venezuela

2020 RLLR 1

Citation: 2020 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2020
Panel: Josée Bouchard
Counsel for the Claimant(s): Amedeo Clivia, Maritza Sierra Vasquez
Country: Venezuela
RPD Number: TB9-12556
Associated RPD Number(s): TB9-12599, TB9-30737
ATIP Number: A-2021-00540
ATIP Pages: 000001-000014

REASONS FOR DECISION

[1] [XXX] (the principal claimant), her daughter [XXX] (the minor claimant) and her brother [XXX] (the associate claimant) are citizens of Venezuela and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2] The claimants’ allegations are fully set out in their basis of claim (BOC) forms.²

[3] To summarize, the principal claimant and associate claimant allege a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their political opinion, namely their anti-government affiliation and activities.

[4] The associate claimant and minor claimant allege a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their membership in a particular social group, namely their familial relationship as the brother and daughter, respectively, of the principal claimant.

Designated Representative

[5] The principal claimant was appointed as the Designated Representative for the minor claimant. She provided a special power of attorney signed by the minor claimant’s father on [XXX] 2020³ giving her the power to take the minor claimant to Canada.

DETERMINATION

[6] The claimants are Convention refugees, as they have demonstrated a serious possibility of persecution in Venezuela on Convention grounds by virtue of their political opinion, namely their anti-government affiliation and activities, or their membership in a particular social group, namely the associate and minor claimants’ familial relationship as the brother and daughter respectively of the principal claimant.

Identity

[7] The claimants’ personal identities as citizens of Venezuela have been established by the testimonies of the principal and associate claimants and the supporting documents, namely the principal, associate and minor claimants’ valid passports issued by the government of Venezuela.⁴

[8] I find on a balance of probabilities that personal identity and country of reference have been established.

ANALYSIS

Credibility

[9] In terms of the principal and associate claimants’ general credibility, I have found them to be credible witnesses and I therefore believe what the claimants have alleged in their oral testimonies and their basis of claim forms. Their evidence was detailed and consistent, both internally and with their documentation. Throughout the hearing, the principal and associate claimants were articulate, responsive, and forthright. They were able to elaborate on their narratives and gave detailed explanations to the questions. Their claims were well supported, and I noted no material inconsistencies or omissions such that the presumption of truthfulness could be rebutted.

[10] I turn now to the findings as they relate to the principal and minor claimants.

The principal claimant and the minor claimant

[11] Based on the credible testimonies and overall evidence, I make the following findings of fact as they relate to the principal claimant and the minor claimant:

a. The principal claimant is a member of the political party Conciencia de Pais, a political party that is in opposition to the regime. She participated in the party’s monthly meetings of professionals and participated in the logistics to prepare demonstrations, such as preparing pamphlets and placards. The principal claimant testified that the regime knew of her membership in the political party Conciencia de Pais.

b. The principal claimant is a [XXX] by profession. From [XXX] 2000 to [XXX] 2018, the principal claimant worked for the [XXX], which is a governmental organization. She provided documentary evidence in support of her claim that she worked for that organization. She was, for most of her tenure there, the [XXX]. Beginning in 2013, a new director and strong sympathizer with the regime was appointed as the head of the organization. She made it mandatory for employees to attend political meetings, marches, and events in support of the regime.

c. The principal claimant’s political opinion was known within the organization she worked for. The principal claimant was harassed and threatened by colleagues and the director for refusing to attend events and demonstrations in support of the regime. The principal claimant testified that there were lists of those who refused to participate. When the principal claimant refused to participate, she was called miserable; someone who is against the regime. She testified that she was perceived as a traitor to the regime.

d. The principal claimant also had disagreements with the director. She testified that she refused to approve renovations in her laboratory because in her view the renovations were unsafe and used as a money laundering scheme. The director proceeded without her approval.

e. While on a medical leave, there was a theft at the principal claimant’s workplace: a chair, a box with supplies and laboratory equipment were stolen. She later found out that she faced criminal charges of “unlawful embezzlement” for the theft. She testified that this was done because of her anti-government political opinion and refusal to cooperate with the director in the renovation that she characterised as money laundering.

f. As a result of the charges, the principal claimant required medical attention for stress. Her physician recommended a change of position to one with less supervisory responsibilities. Consequently, the principal claimant moved to another department as [XXX]. She testified that even with that change, the director and colleagues continued to harass her.

g. The principal claimant finally resigned from the [XXX] to work for a private company. Her responsibilities included [XXX]. She required approval from the government before [XXX] and the government or her former director refused or delayed such approvals.

h. The principal claimant attended several preliminary hearings in her legal proceeding, including a hearing on [XXX] 2018 when the judge dismissed the charges against her for lack of evidence. The principal claimant testified that the judge was immediately removed before signing the decision.

i. On [XXX] 2019, while the principal claimant was leaving her house with her daughter, two men on motorcycles stopped and hit her window with firearms. Their heads were covered, and they said, “prepare yourself for what is coming”. The principal claimant, with the minor claimant, fled to her parent’s house and remained there until she left Venezuela. The principal claimant did not go to the police because she had been trying to get justice for three years and none was forthcoming.

j. The principal claimant left for Canada on [XXX] 2019.

k. The principal claimant filed a statement from her parents dated [XXX] 2019 indicating that that they had gone to her apartment to recover documents and the principal claimant was still receiving threats through phone calls to her home. The principal claimants’ parents stated that they remained indoors and were very anxious.

l. The principal claimant also filed a lettedated [XXX] 2019, from the friend who looked after her apartment in Venezuela. The friend confirmed that she often heard calls while in the principal claimant’s apartment but found it unwise to answer.

m. On [XXX] 2019 the Court of Appeal of the Criminal Judicial Circuit of the Metropolitan Area of Caracas (Venezuelan Appellate Court) dismissed the charges against the principal claimant due to lateness in filing the appeal. The principal claimant testified that she remains fearful of returning to Venezuela. The principal claimant also fears for her daughter as she believes she is in danger because of her. The principal claimant testified that her daughter is at risk of being kidnapped as a means of revenge from the regime. The principal claimant believes that if she returns to Venezuela, she will be immediately detained at the border and charged. She testified that the regime does not forgive.

[12] I find that the principal claimant is seen by Venezuelan authorities as opposing the regime and she faces danger because of it. I find that, because of her familial relationship with the principal claimant, the minor claimant also faces danger from the authorities and “colectivos”. She was a victim in the [XXX] 2019 attack and the fact that she is the daughter of the principal claimant, who is wanted by the regime, puts her at an increased risk of violence and kidnapping as a means of retaliation against the principal claimant.

[13] I turn now to the associate claimant.

The associate claimant

[14] Based on the credible testimonies and overall evidence, I make the following findings of fact as they relate to the associate claimant:

a. The associate claimant was an active participant in anti-government activities starting in 2004 when he was a university student. He was part of the group that submitted the collection of signatures to request a referendum against Hugo Chavez Frias. He received threats through phone calls as a result.

b. The associate claimant completed a bachelor’s degree in [XXX] and a master’s degree at the [XXX]. Despite his level of education, the associate claimant had difficulty finding employment in Venezuela. When he found employment, it was below his level of education and knowledge and in a different area of expertise than his degrees. Employers tried to force him to attend marches in support of the regime. When he refused, he was terminated. At his last employment in Venezuela, the associate claimant believes that his employer was making lists and taking pictures of people who refused to attend events in support of the regime. He believes that this information was shared with the “colectivos”.

c. In 2017, the associate claimant found employment in Buenos Aires, Argentina. He worked for 2 years, until his contract ended. After two years, he returned to Venezuela. Upon his return, the associate claimant was stopped and detained by the Venezuelan national guard for 9 hours because he was considered his sister’ s accomplice. The officers hit him with weapons, took his clothes out of his luggage and took gifts he brought back. After his release, while still in Venezuela, the associate claimant felt he was being followed.

d. Between [XXX] 2019 and [XXX] 2019, the associate claimant was confronted twice by men on motorcycles. The last confrontation resulted in the associate claimant being brutally beaten. One of the six assailants took a revolver and put it in his mouth, saying that the next time he was a dead man, and to tell his sister to return to Venezuela. The associate claimant left Venezuela a few weeks later for Canada.

[15] I find that the associate claimant is seen as a political dissident and is being targeted as a result. I also find that the associate claimant is seen as an accomplice to the principal claimant’ s actions and he is being targeted as a result.

Documentary evidence

[16] The claimants also provided documents in support of their claims, including:

a. A psychological report dated [XXX] 2016 and made contemporaneously to the events, showing the hardship that the charges of embezzlement caused to the principal claimant.⁵

b. Attestation that the principal claimant is a member of the Conciencia de Pai, an anti-government political party.⁶

c. Documents relating to the principal claimant’ s employment in Venezuela supporting her claim that she worked for the [XXX] a governmental organization.⁷

d. Excerpts from court documents and decisions relating to the legal proceeding against the principal claimant. The documents include the decision of the Venezuelan Appellate Court of [XXX] 2019 dismissing the charges against the principal claimant. The documents support the claim that the principal claimant was unjustly charged of the crime of “unlawful embezzlement” in Venezuela.⁸

e. A report from the principal claimant’s lawyer in Venezuela providing the lawyer’s position on the proceedings against her.⁹

f. A 2019 medical report written by a psychologist in Ontario supporting the principal claimant’s claim that she still suffers from serious psychological conditions because of what happened in Venezuela.¹⁰

g. Statements by friends and family members supporting the claims that the principal and associate claimants were persecuted in Venezuela and are still at risk.¹¹

[17] There is no reason to cast any doubt on the veracity of these documents and as such I place great weight on these documents to support the claimants’ allegations and overall claims.

Nexus

[18] Based on the above facts, I find that, because of their refusal to support the regime, the principal and associate claimants were the victims of physical and emotional abuse by the authorities and those acting for them. As such, I find that both the principal claimant and associate claimant have a nexus to the Convention by virtue of their political opinion.

[19] I also find that the minor claimant and the associate claimant have a nexus to the Convention as family members of the principal claimant. They were both attacked because of their relationship with the principal claimant. As such I find that both the associate claimant and minor claimant have a nexus to the Convention by virtue of their membership in a particular social group.

Subjective fear

[20] The principal claimant was harassed through degrading comments from the director of her former employer, a governmental organization, because she refused to participate in the regime’s activities. She was persecuted through the laying of false charges against her, which remained unresolved for several years. This culminated in the attack on her and her daughter in [XXX] 2019 when she was in her car leaving her house.

[21] The principal claimant fled to her parents’ house on [XXX] 2019 and remained there until she left with the minor claimant for Canada the next month. She provided testimony that even after her departure from Venezuela, the authorities or “colectivos” mandated by the authorities were still looking for her. Her brother’s detention by the national guard when he returned from Argentina and the attacks on him between [XXX] 2019 and [XXX] 2019 are further evidence of that.

[22] I find that the Venezuelan Appellate Court’s dismissal of the principal claimant’s charges against her does not diminish her subjective fear. The use of the penal system against her was one of several forms of persecution she experienced due to her anti-government political opinion. It does not mean that the government will not seek other ways to repress the principal claimant, such as detaining her upon entry into Venezuela or employing the “colectivos” to threaten and harm her as they have done in the past.

[23] The minor claimant also experienced an attack by armed masked motorcyclists while in the car with the principal claimant. She is at risk largely for the same reasons as the principal claimant and could be targeted by the government or those acting for the government as reprisal aimed toward the principal claimant.

[24] The associate claimant was detained and interrogated because of his relation to his sister. He was called an accomplice of someone who has fled Venezuela. He was forced to flee after two brutal attacks by unknown assailants, assumed to be part of the “colectivos”, between [XXX] 2019 and [XXX] 2019. During the last attack he received death threats while a revolver was placed in his mouth. He fled to Canada a few weeks later.

[25] I find that the claimants’ subjective fear is established by their credible testimonies and I believe what they have alleged, on a balance of probabilities.

Objective Basis

Country documentation

[26] The objective country reports are consistent with the claimants’ evidence about the violence suffered by dissidents of the regime in Venezuela.

[27] The National Documentation Package (NDP) for Venezuela, dated September 30, 2020, refers to the Human Rights Watch, World Report 2016: Events of 2015¹², which states as follows:

[u]nder the leadership of President Hugo Chavez and now President Nicolas Madura, the accumulation of power in the executive branch and erosion of human rights guarantees have enabled the government to intimidate, censor, and prosecute its critics, leading to increasing levels of self-censorship.

[28] Freedom House, in Venezuela, Freedom in the World 2020¹³, notes that “the authorities have closed off virtually all channels of political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process.”

[29] The United Nations Human Rights Council, in its August 23, 2016 report prepared by the Office of the United Nations High Commissioner for Human Rights¹⁴ also notes that “fundamental guarantees for the exercise of freedom of expression and the right to freedom of opinion have been eroded, with an increase in attacks, censorship, arbitrary detentions, police surveillance, arbitrary interception of communications and abuse of power by State authorities”.

[30] Having been the subject of false charges, the principal claimant testified that she could again be subjected to false charges if she were to return to Venezuela. The United States, Department of State, in its Country Reports on Human Rights Practices for 2019, remarks on the practice of making false charges against political dissidents in Venezuela. It talks about corruption and political influence throughout the justice system. Reports from the International Commission of Jurists states that as many as 85 percent of all judges had provisional appointments and were subject to removal at will by the judicial committee. Provisional and temporary judges, who legally have the same rights and authorities as permanent judges, allegedly were subjected to political influence to make pro regime determinations.¹⁵

[31] The May 17, 2017 Response to Information issued by the Immigration and Refugee Board of Canada discusses the influence of “colectivos” in Venezuela. It notes that “many of the country’s “colectivos” are becoming criminalized and violent, extorting the communities they often claim to protect […] the “colectivos” have grown in power and influence, and in many cases have become linked to organized crime and have evolved into “partly criminal organizations”. It further states that “the “colectivos” have been supplied with weapons from the government and they have received training in urban warfare […] They act as enforcers in the barrios (neighbourhoods) and in general act to intimidate the population to discourage them from doing anything the government would dislike”.¹⁶

[32] The December 19, 2017 Response to Information Request issued by the Immigration and Refugee Board of Canada supports the claimants’ claims that employees who refuse to attend activities in support of the regime are punished for such refusals. It states that “[t]here is no rule of law in Venezuela [ … ] there is little recourse for someone who refuses to participate in a rally during the election period [… ] if an individual works for a state enterprise and refuses to participate in a rally when the employer wants them to join, they will be accused of siding with the opposition [… ] it is rare that individuals will contact the police willingly to file a complaint because the police m Venezuela have a bad reputation and are known to commit robberies themselves”.¹⁷

[33] Country documentation also suggests that family members of opponents of the regime are at risk. The Office of the United High Commissioner for Human Rights observed that “persecution had extended to the families of opposition members, social activists or human rights defenders. Family members have been subjected to surveillance, threats, intimidation, and reprisals, solely on the basis of their family ties.”¹⁸

[34] As the claimants have established their subjective fear and an objective basis for that fear, I find that they have established a well-founded fear of persecution.

State Protection

[35] When making a refugee claim, a claimant must establish, on a balance of probabilities, that adequate state protection is not available. There is a presumption that state protection is available, and the onus is on the claimant to provide dear and convincing evidence to rebut such protection. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. The evidence that state protection is not adequate must be reliable and probative. It must also satisfy the panel, on a balance of probabilities, that state protection is inadequate.

[36] In this case, the agents of persecution are the state and state sanctioned “colectivos”. The persecution the claimants would face should they return to Venezuela is at the hands of the authorities. Accordingly, I find there is no state protection available to the claimants.

Internal Flight Alternative

[37] I have also considered whether a viable internal flight alternative exists for the claimants. The principal and associate claimants both testified that their employers were making lists of political dissidents. As a result, their names would have been included on those lists. The associate claimant was identified at the border as the brother of the principal claimant and he was detained as a result. I find on a balance of probabilities that both the associate and principal claimants are on lists of individuals known to be opponents of the regime and that the authorities have access to those lists. In addition, the evidence reviewed above confirms that the agent of persecution is the state and the persecution is nationwide. I find that there is a serious possibility of persecution for the claimants throughout Venezuela and therefore find that there is no viable internal flight alternative for them.

CONCLUSION

[38] Based on the totality of the evidence, I find all three claimants to be Convention refugees pursuant to s. 96 of IRPA. The principal claimant and associate claimant have demonstrated a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their political opinion, namely anti-government affiliation and activities. The minor claimant and associate claimant have demonstrated a serious possibility of persecution at the hands of the Venezuelan authorities and “colectivos” because of their membership in a particular social group, namely their familial relationship as the daughter and brother, respectively, of the principal claimant. I accept their claims.

(signed) Josée Bouchard

November 3, 2020

¹ Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.
² Exhibits 2.1, 2.2 and 2.3.
³ Exhibit 5.3.
⁴ Exhibit 1.
⁵ Exhibit 5.1.
⁶ Exhibit 5.1.
⁷ Exhibit 5.1. The Venezuelan name of the institute is [XXX].
⁸ Exhibits 5.1 and 5.3.
⁹ Exhibit 5.1.
¹⁰ Exhibit 5.1.
¹¹ Exhibits 5.2, 6.1 and 6.2.
¹² Exhibit 3, item 4.6.
¹³ Exhibit 3, item 2.4.
¹⁴ Exhibit 3, item 2.8.
¹⁵ Exhibit 3, item 2.1.
¹⁶ Exhibit 3, item 4.16,
¹⁷ Exhibit 3, item 4.6
¹⁸ Exhibit 3, item 2.9.

All Countries Zimbabwe

2019 RLLR 146

Citation: 2019 RLLR 146
Tribunal: Refugee Protection Division
Date of Decision: March 22, 2019
Panel: Harvey Savage
Counsel for the Claimant(s): Victoria A Bruyn
Country: Zimbabwe
RPD Number: TB8-12629
ATIP Number: A-2021-00256
ATIP Pages: 0000168-000172

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision for [XXX] and [XXX] who claim to be citizens of Zimbabwe, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

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

ALLEGATIONS

[4] You allege the following: You have identified as having a same sex preference from a young age. You had several relationships with women, and the most serious one was with [XXX]. She was with you when the father of your son entered an eating establishment and verbally assaulted you because of your sexual preference. Shortly after, you and [XXX] both became members of Gays and Lesbians in Zimbabwe (GALZ). At the end of January 2018, that same person, [XXX] came to your house and forced you to perform oral sex on him. He was violent with you. You did not report this to police because you feared being arrested because of your sexual orientation. After you were terminated from your employment in April 2018, due you feared because of your sexual orientation, you left Zimbabwe fearing continued persecution and eventually entered Canada from the United States. You were also fleeing from [XXX] whose father raped your sister in Zimbabwe. [XXX] father is also the nephew of [XXX] was threatening you to produce your sister, and unbeknownst to him, she had fled to Canada where she made a successful refugee claim. You fear not only for yourself but for your son who is a co-claimant because if he returns to Zimbabwe he will face the wrath of both [XXX] because of you and your identity as a lesbian, and you will not be able to protect him.

DETERMINATION

[5] I find that you are Convention refugees as you have established a serious possibility of persecution should you return to Zimbabwe based on the grounds in section 96.

ANALYSIS

Identity

[6] I find that your identities as nationals of Zimbabwe are established by the documents provided: passports and birth certificates.

Nexus

[7] I find that you have established a nexus to section 96 by reason of your membership in a particular social group, a lesbian in Zimbabwe.

[8] Based on the documents in the file, and the testimony at this hearing I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. Your sister [XXX] whom you mentioned in your narrative, was a witness at today’s hearing and she confirmed many aspects of your claim. In particular, she confirmed your sexual orientation as a lesbian, your various relationships while she was still living in Zimbabwe, and her agent of persecution, [XXX] who plays a central role in why you fear returning to Zimbabwe. I found her testimony credible.

[9] I further considered the letter from [XXX] with whom you had a relationship in Zimbabwe and she confirmed the events with [XXX] which culminated in your decision to flee Zimbabwe with your son and various other written correspondence including from your mother. I also note your attested to membership in the GALZ organization. After reviewing the documents, I have no reasons to doubt their authenticity.

[10] I have also considered the evidence of bullying and harassment experienced by your son when word spread that his mother is someone perceived as gay.

Objective basis of future risk

[11] Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm: retribution by violent assaults and inability to obtain adequate state protection.

[12] The fact that you face this risk is corroborated by the following documents: National Documentation Package (NDP) for Zimbabwe – June 29, 2018, items 1.4, 2.6, 6.2 and 6.3, as well as, Exhibit 5.

Nature of the harm

[13] This harm clearly amounts to persecution.

Internal flight alternative

[14] I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Zimbabwe. Anti-gay legislation criminalizing same sex relations is operative throughout Zimbabwe and carries a maximum penalty of three years.

[15] On the evidence before me, I find that it is not objectively reasonable, in all the circumstances, including those particular to you, for you to seek refuge in Zimbabwe for the following reasons. Anti-gay legislation criminalizing same sex relations is operative throughout Zimbabwe and carries a maximum penalty of three years.

CONCLUSION

[16] Based on the analysis above, I conclude that you are convention refugees. Accordingly, I accept your claims.

(signed) Harvey Savage

March 22, 2019

All Countries Uganda

2019 RLLR 145

Citation: 2019 RLLR 145
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Charow
Counsel for the Claimant(s): Jonathan E Fedder
Country: Uganda
RPD Number: TB8-04402
ATIP Number: A-2021-00256
ATIP Pages: 0000164-000167

DECISION

[1] MEMBER: This is the decision for [XXX] File TB8-04402. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. In making this decision, I have considered the guidelines for sexual orientation.

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

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

[4] The allegations of your claim can be found in your Basis of Claim Form at Exhibit 2. In short, you allege persecution as a member of a particular social group, namely that you are in danger of being harmed because of your identity as a gay Ugandan man as same-sex sexual activity has been criminalised in Uganda.

[5] You fear both the police and your community as you have alleged that you have been previously sought by the police after being attacked by a homophobic mob.

[6] Your personal identity as a citizen of Uganda has been established by your Ugandan passport. I therefore find on a balance of probabilities your identity and country of reference have been established.

[7] In terms of your general credibility, I have found you to be a very credible witness, and I therefore accept what you have alleged in your oral testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without any embellishment, and there were no inconsistencies that went to the core of the claim that were not explained.

[8] Your testimony was spontaneous including being able to provide details about how you first began to understand your sexual orientation as a youth. You were able to give specific detailed testimony about your emotions and the difficulties you face keeping your feelings a secret after seeing homophobic reactions from the community, your school, your church and your family.

[9] You gave extremely detailed testimony about your current partner [XXX] (PH), including how the relationship developed, what attracted you to [XXX] (PH), and how you were able to keep your relationship a secret as a whole. Your testimony regarding how your sexual orientation was exposed was also descriptive, consistent and in line with the documentary evidence you provided.

[10] As well today, you showed me that you have been in ongoing contact with [XXX] (PH) since you came to Canada, and you were able to show me your communication with him after he had fled to a remote village in Uganda. You showed me your messages on WhatsApp on your phone dating back to February 2018 shortly after you had left Uganda.

[11] When reading through the months and months and months worth of messages, I noted that you both refer to each other with terms of endearment and that the messages were varied, plentiful and continuous up to this time. I saw that he had wished you luck on your hearing today.

[12] I find that the messages that you showed me were authentic as I saw them on your phone, and I saw how far back they dated and overall consistent with the nature of the relationship that you have alleged.

[13] As well in support of your claim, you provided documentary evidence. I note a medical assessment completed here in Canada, which states that you have injuries consistent with the assault that you had alleged in Uganda. I noted a detailed letter from your same-sex partner, again, very detailed, consistent with your allegations and very much in line with the nature of the relationship that you alleged.

[14] I noticed that you provided photographs of you and your same-sex partner as well as a letter from your uncle, the person who helped you escape Uganda and who provided support for you while you were in hiding. As well, I see that you have provided confirmation of money transfers showing that you have been sending money to your same-sex partner in Uganda. These documents can be found in Exhibit 6 through 8.

[15] I am therefore satisfied that the events have occurred as alleged and that you would face persecution at the hands of either the Ugandan government or your community should you return to Uganda. I find that you have established your subjective fear.

[16] I find that there is a link between what you fear and one of the five Convention grounds, specifically that as a gay man you are a member of a particular social group because of your sexual orientation. Therefore, your claim has been assessed under Section 96 of the Immigration and Refugee Protection Act.

[17] I further find that you have an objective basis for your fear because of the documented conditions for Uganda as per the evidence in Exhibit 3, which is the National Documentation Package for Uganda. I specifically note Item 6.1 which states that Ugandan law criminalises same sex sexual acts. The law in Uganda further restricts the access of sexually nonconforming individuals to protections against discrimination that are available to other Ugandans.

[18] I also note that there is further criminalisation of same sex activity under the Penal Code which prohibits unnatural offences and acts of gross indecency, and that homosexuality is rejected by most Ugandans on the basis of tradition, culture, religion and moral values. Many in Uganda perceive homosexuality as “un-African and un-Christian” or inspired by western practices, and it is also presented in connection to wider threats to “authentic” African values and traditions.

[19] Therefore, in considering all of this information, I find that your subjective fear has an objective basis. I find that you have a well-founded fear of persecution due to your sexual orientation.

[20] I further find that Stare protection would not be reasonably forthcoming in your case as per the evidence already discussed. As per Item 6.1 of the National Documentation Package at Exhibit 3, samesex sexual activities are criminalised. The same Item also notes that many people who identify as a sexual minority are often unable to receive police protection from abuse by non-State actors for fear of being arrested or ignored or further abused. As such. I find that there is clear and convincing evidence that State protection would not be available to you nor would it be reasonable for you to seek such protection.

[21] Given the conditions discussed, I further find that there would be a serious possibility of persecution anywhere in Uganda as homosexuality is criminalised throughout the country and societal attitudes as discussed are consistently homophobic throughout the country.

[22] As the test for an internal flight alternative fails on the first prong, I find that there is no viable internal flight alternative for you anywhere in Uganda.

[23] Based on the totality of the evidence, I find the claimant to be a Convention refugee. Your claim is therefore accepted.

[24] So, this will conclude today’s hearing. I would like to thank everyone for their participation.

[25] Thank you, sir. Thank you counsel.

[26] COUNSEL: Thank you madam member.

—REASONS CONCLUDED—

All Countries Indonesia

2019 RLLR 144

Citation: 2019 RLLR 144
Tribunal: Refugee Protection Division
Date of Decision: March 26, 2019
Panel: S. Bardai
Counsel for the Claimant(s): Adrienne C Smith
Country: Indonesia
RPD Number: TB6-03152
ATIP Number: A-2021-00256
ATIP Pages: 0000158-000163

ACO RECOMMENDATION

[1] The claimants’ allegations are as set out in their Basis of Claim Forms (BOCs ).¹ In summary, they allege a fear of persecution at the hands of the Indonesian Government and society on the basis of their sexual orientation and HIV-positive status. The claimants state that they were in a same-sex relationship prior to their arrival in Canada and that on [XXX] they married each other in Toronto, Ontario.

[2] The original hearing of this claim was held on February 7, 2018 where the claim was reserved for a decision. The Member recused herself from the claim March 1, 2018 and was therefore unable to render a final decision on the claim. On February 12, 2019 the RPD sent a letter to Counsel and the Claimants, giving them the option to conduct a new hearing or assign a new Panel to render a decision, relying on the claimant’s testimony from the February 7, 2018 hearing and the documents already on file. Counsel responded on February 12, 2019, requesting that the RPO make a decision based on the evidence provided at the original RPD hearing. She has also made an application for additional post-hearing disclosure pursuant to RPD Rule 50. This disclosure was accepted and added as Exhibit 10.

ANALYSIS

Identity

[3] With respect to identity, the claimants have submitted their Indonesian passports to Immigration, Refugees and Citizenship Canada (IRCC) officials upon making their claim.²

[4] In support of their sexual identity, the claimants have provided a substantial amount of evidence including their Ontario marriage license, certificate of marriage, personal photographs and letters of support from friends in Indonesia, in addition to their testimony.³

[5] In support of their identity as HIV-positive individuals, the claimants have provided a letter from [XXX] of Regent Park Community Health Centre who states that both Mr. [XXX] and Mr. [XXX] are infected with HIV and that they are both currently on medication to treat the infection. In further support, they have provided letters of support from the Toronto People with AIDS Foundation, Asian Community Aids Services and from [XXX] a Public Health Nurse with Toronto Public Health.⁴

Credibility

[6] I have reviewed the claimant’s evidence including their BOCs, Port of Entry notes, the documentation provided in support of their claim by counsel and the recording of the hearing held on February 7, 2018. I have also reviewed country condition documentation contained in the Immigration and Refugee Board of Canada’s National Documentation Package (NDP)⁵ for Indonesia. The claimants’ evidence was detailed, consistent and there did not appear to be any serious credibility issues that arose from the documents in the file on a balance of probabilities. Their testimony at the hearing appeared sincere and credible. The Member at the original hearing accepted their profile as individuals in a same-sex relationship and there does not appear to be any evidence before me to the contrary.

Well-founded Fear of Persecution on a Convention ground:

Race

Nationality

Religion

X Particular Social Group

Political Opinion

[7] The documentary evidence supports the allegations noted by the claimants. It is well documented that while homosexuality is not criminalized in Indonesia, the rights of LGBT groups have come under attack in 2016 which stemmed from a comment made by the Minister of Higher Education, Muhammad Nasir on January 24, 2016 about how he wanted to ban LGBT student organizations from university campuses.” Since this comment, mass religious groups and NGOs joined the rhetoric; psychiatrists proclaimed same-sex sexual orientation and transgender identities as ··mental illnesses”; the country’ s largest Muslim organization called for criminalization of LGBT behaviors and activism and forced “rehabilitation” for LGBT people. The repercussions continue to be felt by LGBT people in Indonesia.⁷

[8] According to Human Rights Watch, more recently the Indonesian Government publicly called for policies that would target LGBT individuals for arrest and “rehabilitation.”⁸ Local decrees and other official documents reviewed by Human Rights Watch proposed handing over lists of alleged gay and bisexual men to authorities, changing school curriculum to teach lies and hatred of LGBT people, force medical intervention to attempt to change their sexual orientation or gender identity and censoring speech about LGBT rights.⁹

State Protection:

[9] With respect to state protection and in the particular circumstances of this case, according to the documentary evidence, the “government took almost no action to prevent discrimination against LGBT persons,” and in some cases it failed to protect LGBT individuals from societal abuse”. Further reports indicate that while the central government has not criminalized same-sex relations, various provincial governments have implemented their own laws to punish LGBT individuals, including the Aceh provincial government which passed a law prescribing “100 lashes and/or up to 8 years in prison”.¹⁰ The same report further notes that other provinces such as South Sumatra, Kalimaman, Tasikmalaya (West Java) and West Sumatra have done the same, though the punishment varies.¹¹

[10] Given the remarks made by government officials and more recently, the increasing anti-LGBT rhetoric depicted in counsel’s post-hearing disclosure, it would appear that the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

[11] I have further considered the objective country documentation which demonstrates a country with an increasing intolerance towards LGBT individuals. This intolerance is echoed in the NOP according to Human Rights Watch:

A series of anti-LGBT public comments by government officials grew into a cascade of threats and vitriol against LGBT Indonesians by state commissions, militant Islamists, and mainstream religious organizations. That outpouring of intolerance has resulted in proposals of laws which pose a serious long-term threat to the rights and safety of LGBT Indonesians.

[12] Given the participation of the state in this growing anti-LGBT rhetoric, the laws put in place by various provincial governments throughout the country and the particular profile of the claimants, it appears that the claimants would be unable to live safely anywhere throughout Indonesia.

CONCLUSION

[13] Having considered all of the claimant’s evidence on a forward-looking basis, including the claimant’s BOC, Ministers information, Counsel’s disclosure, the objective country documentation for Indonesia and the recording of the original RPD hearing, I recommend that this claim is suitable to he accepted without another hearing.

(signed) N. LeBlanc

March 26, 2019

REASONS FOR DECISION

[1] I have reviewed all of the evidence on file and listened to the testimony from the hearing. I have considered the particular circumstances of the claimants as well as the recommendation made by the Adjudicative Claim Officer and I agree that these claims are suitable to be accepted without another hearing for the following reasons.

[2] I find that the claimants have sufficiently established their personal identities as citizens of Indonesia as well as their personal profiles as members of the LGBTQ community on a balance of probabilities. I did not find any issues as it relates to the credibility of their allegations or documents on file on a balance of probabilities. I also find that the claimants have established an objective basis for their claims. I find that the claimants face a serious possibility of persecution based on their membership in a particular social group. I further find that in the particular circumstances of the claimants that there is no adequate state protection or a viable internal flight alternative available to them. As such, I find the claimants to be Convention refugees.

[3] Their claims are accepted.

(signed) S. Bardai

March 26, 2019

¹ Exhibits 2.1 & 2.2.
² Exhibit 1.
³ Exhibits 4 & 6
⁴ Exhibit 6
⁵ Exhibit 3, National Documentation Package (NDP) for Indonesia (July 31, 2018).
⁶ Exhibit 3, National Documentation Package, Indonesia, 31 July 2019, tab 6.4.
⁷ Ibid.
⁸ Exhibit 10, Post-hearing disclosure, pages 11-12.
⁹ Ibid.
¹⁰ National Documentation Package, Indonesia, 31 July 2018, tab 6.2: IDN105148.E.
¹¹ Ibid.

All Countries Ukraine

2019 RLLR 143

Citation: 2019 RLLR 143
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2019
Panel: Charlotte Bell
Counsel for the Claimant(s): Lev Abramovich
Country: Ukraine
RPD Number: TB9-03821
Associated RPD Number(s): TB9-03897
ATIP Number: A-2021-00256
ATIP Pages: 0000140-000150

REASONS FOR DECISION

[1] [XXX] is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (hereafter “the Act” )¹ by reason of his membership in a particular social group, namely civil rights activists. The [XXX] cause is gay rights activism in Ukraine.

[2] [XXX], his son, is claiming refugee protection pursuant to sections 96 and 97(1) of the Act by reason of his membership in a particular social group; namely, he identifies as gay.

[3] In reaching a decision, the panel has considered Chairperson’s Guideline 9² in relation to proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression.

ALLEGATIONS

[4] The claimants’ allegations are set out fully in their Basis of Claim (BOC) forms.³

[5] In summary, [XXX] is a citizen of Ukraine who fears persecution based on his sexual orientation, specifically as a gay male

[6] [XXX] is the father of the [XXX], and a civil rights activist working for gay rights in Ukraine. He fears persecution by reason of his civil rights activism.

[7] Both father and son have suffered physical violence, threats, and police indifference in Ukraine by reason of their membership in their particular social group.

DETERMINATION

[8] The panel finds that the claimants have established a serious possibility of persecution in Ukraine based on a Convention ground; namely, membership in a particular social group.

ANALYSIS

Identity

[9] The panel is satisfied, on a balance of probabilities, as to [XXX] and [XXX] personal identity and identity as nationals of Ukraine, based on the certified true copies of their Ukrainian passports in evidence.⁴

Credibility and Subjective Fear

[XXX]

[10] The panel questioned [XXX] first about the allegations set out in his BOC. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. He described his association with and the friends he had in the LGBT community, specifically those he had met at GenderZ. He discussed the activities and demonstrations that he had participated in there. He described his relationship with [XXX], how they met and started dating in March 2018, how they located the apartment in which they eventually moved into together. He also described beatings he had undergone, and produced medical reports supporting his injuries.

[11] One two occasions when [XXX] was attacked, the incident was reported to the police. In one attack, the police threatened to turn the accusation back on to [XXX], as his attacker claimed to be a victim who had counterattacked. In another incident the police pressured witnesses and kept them from giving statements confirming the attack.

[12] [XXX] was clear and cogent in his testimony that he would not feel safe in any part of Ukraine, and that police protection was not available to him or his father.

[13] [XXX] testimony supported his father’s claim. He described his father’s activism on behalf of the gay community in Ukraine. He recalled and gave the example of an incident he witnessed in which people active in fighting for gay rights were attacked; they were his friends and the police did not want to accept their statement as to what had happened to them “due to hate.” He feared for his father’s safety in Ukraine as his father was known as an activist fighting for gay rights.

[XXX]

[14] The panel also questioned [XXX]. The panel finds that the claimant was, on the balance, a credible witness. His testimony was consistent with the allegations set out in his BOC. [XXX] confirmed that his son is gay, and described how he and his son had discussed the son’s sexual orientation from the early realization of it.

[15] In his BOC [XXX] described his son’s struggle with being gay in Ukraine; the assaults which his son had suffered, the law firm he had retained to provide legal support for his efforts to advance protection for the gay community, the attack he himself had endured during a morning run when three men wearing uniforms beat him and tried to drag him into a minivan, the efforts he had made to seek protection and redress from the police, and the futility of these efforts.

[16] Although he had applied for and been granted a temporary visitor’s visa into Canada in [XXX] 2018, for both himself and his son, [XXX] did not leave Ukraine until [XXX], 2018. The panel questioned [XXX] as to why he had waited so long if he indeed feared persecution both on his own account and that of his son.

[17] [XXX] said that a child’s happiness comes first. His son had met a boy named [XXX] and loved him, and because the move to Canada, where they knew no one and would suffer considerable financial difficulties, would prove so difficult (it would not be possible for his wife and daughter to accompany them to Canada), he decided to stay and hope. He was concerned for his own safety but would not leave his son alone in Ukraine; and so they waited.

[18] In November 2018, his son and [XXX] were attacked by a group of people who were insulting their sexual orientation. [XXX] ran away and this ended [XXX] relationship with [XXX]. [XXX] became involved in pressing for a police investigation only to discover that one of the attackers was the son of [XXX]., the First Deputy Public Prosecutor of the claimants’ home city.

[19] [XXX] testified that [XXX] was a known criminal, is corrupt and takes bribes, and he produced media articles that support this assessment. [XXX]., seeking to disengage his own son from the allegations of assault, phoned and threatened [XXX]. [XXX] testified that not only does he fear returning to Ukraine by reason of the fact that he is a known gay rights activist, and gay rights activists are targeted in Ukraine, but also because [XXX]. would now have particular reason to harm him.

[20] [XXX] described what he referred to as the special relationship that police and prosecutors have in Ukraine, and the reason why, in his view, the bias will not soon change. He said that it was not a long time ago that the Criminal Code of the Soviet Union made it a criminal offence to be gay; and that gay persons were prosecuted and sent to psychiatric hospitals for “treatment”. These laws, it was his observation, are still ingrained in Ukrainian society.

[21] The panel has reviewed the articles that describe the corruption and violence surrounding the office of the Deputy Public Prosecutor and accepts that because of his involvement in the case in which the prosecutor’s son was implicated, [XXX] is at a heightened risk should he return to Ukraine.

[22] Finally, the panel notes that the claimants provided documentary evidence in support of their claims, most notably pictures and letters from the LGBT community in Ukraine, police reports, and medical reports.⁵ The panel finds these documents to be relevant and probative in support of both of the claimants’ allegations.

[23] In light of the testimony that the panel has found to be credible, and considering the documentary evidence, the panel finds, on a balance of probabilities, that the claimant [XXX] is gay, and that he experienced physical violence in Ukraine due to his sexual orientation.

[24] The panel also finds, in light of the testimony that the panel has found to be credible, and considering the documentary evidence, that, on a balance of probabilities, [XXX] is a civil rights activist advocating for gay rights who experienced physical violence and threats in Ukraine due to this activism.

Objective basis of the claim

[XXX]

[25] Having considered the country conditions documentation, the panel finds that there is an objective basis to what [XXX] fears in Ukraine.

[26] The objective documentary evidence indicates that the LGBTQ community in Ukraine faces bias and hostility⁶ and that discrimination against the LGBTQ community in Ukraine takes place in almost every area of life.⁷ Discrimination is considered to be frequently encountered in employment, education, healthcare and treatment by law enforcement authorities. Violence against individuals in the LGBTQ community is noted to be a significant human rights issue in Ukraine.⁸ While Ukraine was the first former Soviet State to decriminalize same-sex activity, social intolerance is noted to have gradually increased since that time.⁹

[27] Evidence in the National Documentation Package (NDP) for Ukraine suggests that violence against the LGBT community in Ukraine is on the rise:

Nash Mir’s monitoring network in 2018 documented 358 cases of actions motivated by homophobia / transphobia, discrimination and other violations of LGBT rights in Ukraine. 34 included events that happened in 2017, the rest- 324 cases – occurred in 2018. In comparison, previously in 2017 Nash Mir Center documented 226 cases. Such a sharp increase in the annual number of the reported LGBT rights violations, in our opinion, resulted from both increasing efficiency of the monitoring network activity and the real growth of violence against LGBT people by right-wing radical groups.¹⁰

[28] In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay man.

[XXX]

[29] [XXX] provided documentary evidence to support his claim that gay activists were targeted in Ukraine.

[30] An article published in February 8, 2018, in the Gay Alliance Ukraine reported an attack by five masked men shouting “Sieg Heil” and “Death to Faggots” on four activists who were members of the “Gay Alliance Ukraine” organization. As a result of the attack two of them were taken to the hospital.¹¹ A July 2018 World report dated July 1 2018 described as severe beating by unidentified assailants of a gay activist who was organizing a gay pride parade in Kryvyi Rih.

[31] The National Document Package, World Report 2019: Ukraine Human Rights Watch¹² contains the following confirmation of Oleksandr’ s concerns for his safety as a human rights activist;

1. Authorities did not conduct effective investigations into numerous assaults against anti-corruption and other community activists. In November 2018, Kateryna Handzyuk, an anti-corruption activist, died from burn wounds inflicted in a July acid attack.

2. Members of groups advocating hate and discrimination carried out at least two dozen violent attacks, threats, or instances of intimidation against Roma people, LGBT people, and rights activists in several Ukrainian cities. In most cases, police failed to respond or effectively investigate.

In March, hate groups attacked events to promote women’s rights in Kyiv, Lviv, and Uzhgorod. In Kyiv, they physically assaulted participants while police looked on.

3. In May, hate groups disrupted an equality festival in Chernivtsi while local police failed to effectively protect participants. Also in May, hate groups in Kyiv disrupted an Amnesty International LGBT rights event in Kyiv. Police present took no action and made homophobic comments.

[32] In light of the objective documentary evidence the panel finds that [XXX] has a well-founded fear of persecution in Ukraine based on his profile as a gay rights activist.

State Protection

[33] The claimants bear the onus of establishing, with clear and convincing evidence, that adequate state protection would not be forthcoming to them, were they to return to Ukraine. Having considered all of the evidence, including circumstances particular to the claimants, the panel finds that they have met this burden.

[34] It is reported in the objective documentary evidence that incidents of homophobic violence are rarely investigated or prosecuted by the authorities in Ukraine and that there is no effective hate crime legislation in place.13 Significant problems are noted in the objective evidence with respect to law enforcement treatment of same-sex activity. Failure by the police to intervene in order to prevent violence and other crimes is also noted to be a problem, and it is also noted that the police sometimes use violence against people on the basis of their sexual orientation.¹⁴ The current United States Department of State (USDOS) human rights report for Ukraine indicates that there was sporadic violence against LGBTQ persons and that Ukrainian authorities often did not adequately investigate these cases or hold perpetrators to account.¹⁵ Crimes and discrimination against LGBTQ persons is noted to remain underreported and police open very view cases related to such acts.¹⁶ Further, it is reported that politicians at the local level sometimes voice opposition to LGBTQ rights and failed to protect individuals of the LGBTQ community.¹⁷

[35] In September 2017, [XXX] was attacked. The attack was homophobically motivated. He required medical attention. The traumatologist was obligated to report such incidents to the police and so on September 19^th, 2017, the claimants were called into the District Department of Internal Affairs. The investigating officer made derogatory comments about [XXX] sexual orientation, and berated [XXX] for how “poorly” he had raised his son.

[36] When by October 2017 [XXX] went to check on the progress of the case, he was told that there was no news, the police had important work to do, and [XXX] should not disturb them with unnecessary requests.

[37] [XXX] retained a lawyer, and submitted a complaint to the prosecutor’s office. The investigator told [XXX] that he was being “very imprudent’ and that he “should be very careful”. The investigator suggested that [XXX] might have been the real aggressor and could be charged with the offence.

[38] On the advice of a lawyer, after this, [XXX] decide to stop pursuing the case.

[39] The panel finds, on a balance of probabilities, that adequate state protection would not be forthcoming to the claimants were they to return to Ukraine.

Internal Flight Alternative

[40] Given that homophobic attitudes and incidents of violence against LGBTQ people are reported to occur throughout the country, the panel finds that the claimants would face a serious possibility of persecution wherever they went in Ukraine. The panel therefore finds that there would be no viable IFA for the claimants should they return there.

CONCLUSION

[41] Having considered all of the evidence, the panel finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a gay man. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.

[42] The panel also finds that the claimant [XXX] has established that he faces a serious possibility of persecution in Ukraine based on a Convention ground, namely his membership in a particular social group by virtue of being a civil rights activist for the LGBTQ community. Pursuant to section 96 of the Act, the panel finds that the claimant is a Convention refugee.

[43] Accordingly, the panel accepts the claims of both [XXX] and [XXX].

(signed) C. Bell

October 9, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
² Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Effective date: 1 May 2017.
³ Exhibit 2.1 & 2.2
⁴ Exhibit 1.
⁵ Exhibit 6 and 7
⁶ National Documentation Package (NDP) for Ukraine (31 July 2018), item 2.3.
⁷ NDP for Ukraine (30 April 2018), item 2.11.
⁸ NDP for Ukraine (31 July 2018), item 2.1.
⁹ NDP for Ukraine (31 July 2018), item 2.1.
¹⁰ NDP Ukraine (Nash Mir Center) 6.3
¹¹ Exhibit 5 no. 6
¹² NDP 2.5
¹³ NDP for Ukraine (31 July 2018), item 2.3.
¹⁴ NDP for Ukraine (31 July 2018), item 2.3.
¹⁵ NDP for Ukraine (31 July 2018), item 2.1.
¹⁶ NDP for Ukraine (31 July 2018), item 2.1.
¹⁷ NDP for Ukraine (31 July 2018), item 2.1