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Categories
All Countries Mexico

2019 RLLR 142

Citation: 2019 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: D. D’Intino 
Counsel for the Claimant(s): Gabriella B Uteras Sandoval
Country: Mexico
RPD Number: TB9-00090
ATIP Number: A-2021-00256
ATIP Pages: 0000133-000139

DECISION

[1]       MEMBER: Alright so just let me get started here. Okay so this is my decision with respect to the claim of [XXX] File number TB9-00090. I just want to alert you sir that you are going to get a written copy of these reasons and as will your counsel and there may be some changes with respect to grammar, syntax and additional references to documentary evidence.

[2]       The claimant is a citizen of Mexico and claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered the chair person’s Guideline 9 in this claim which relates to sexual orientation, gender identity and expression. I am required to consider these guidelines and I find them helpful.

[4]       I have considered your testimony sir and the country documentation for Mexico and the documentation you have provided and this is my decision.

DETERMINATION:

[5]       I find that the claimant is a Convention refugee on the grounds of membership in particular social group gay men. As I have made a positive determination on this ground I need not go on to analyze your claim under Section 97.

ALLEGATIONS:

[6]       Your allegations are fully set out in your basis of claim form which is Exhibit 2, in summary you have testified that you fear persecution in Mexico because of your sexual orientation and as well your HIV positive status.

[7]       You further allege that there is no adequate state protection for you in Mexico nor is there an internal flight alternative that is both safe and reasonable for you because the persecution you fear exists throughout all OF Mexico.

IDENTITY:

[8]       Your personal identity as a citizen of Mexico is established on a balance of probabilities by your testimony and by your Mexican passport which is Exhibit 1.

NEXUS:

[9]       The claimant has a number of potential nexus’s to the convention, for example as I mentioned as a gay man or as a gay man who has HIV positive status. I will accept you claim simply on the basis of your sexual orientation.

[10]     Under Section 96 the test is whether there is a serious possibility of persecution on this ground should you return to Mexico and I find that you have met this test.

CREDIBILITY:

[11]     You affirm to tell the truth in your testimony today; you confirmed that you likewise affirmed to tell the truth when you completed your basis of claim form. When a witness swears or affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to the contrary.

[12]     I find that you were a credible witness. Your evidence was consistent, logical, clear and supported by highly probative documentary evidence. The evidence you gave me today and what you wrote in your narrative can be very briefly summarized as follows.

[13]     You were born and raised in Agua Linda Puebla Mexico. That growing up you were verbally assaulted and discriminated against because of choice of dress or the way you spoke which other people determined to be feminine.

[14]     You realized that you were gay from a young age and had your first relationship with a same sex partner around the age of twelve. When you moved away from home and got a job with [XXX] you were told by your boss that he did not want you to be hired because he did not want gay people working there.

[15]     On a number of occasions you were physically and verbally assaulted because of your sexual orientation. You told me about one robbery in particular where your wallet and your phone were taken and the thieves told you they had been following you and your partner and the demanded your pin, they indicated that they knew where you lived and where you worked and that they were watching you.

[16]     You came to Canada in [XXX] 2018 and subsequently claimed refugee protection. When you told your parents about your sexual orientation they had a difficult time accepting it and have still not fully accepted it as they hold out hope that you will one day have a family with a woman.

[17]     While in Canada you were diagnosed with HIV. You are currently in receipt of medical treatment and counselling. You do not believe you can return to Mexico and live openly and safely anywhere in the country as a gay man who is HIV positive.

[18]     You fear that you will not have access to your medication without which it would lead to the development of the AIDS virus and place your very life at risk.

[19]     So that is a very condensed version of your testimony and your narrative.

OBJECTIVE DOCUMENTARY EVIDENCE:

[20]     Conservative attitudes prevail in Mexico and public displays of affection between same sex partners are not considered socially acceptable and that is reflected in Item 6.2 of the NDP and Item 6.1.

[21]     Furthermore in Item 6.1 and I quote from the US Department of State report for 2017 “discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTQ individuals according to public opinion surveys”.

[22]     In one report information was published according to which one thousand three hundred and ten cases of killings of LGBTQ person’s motivated by homophobia were committed in Mexico between 1995 and April 30th 2016. Forty four of those killings occurred in 2015 and fifteen in the first portion of 2016.

[23]     In the last ten years in Mexico there has been an average of seventy one homicides a year of LGBTQ persons. The UN special repertoire on extra judicial or arbitrary executions noted “an alarming pattern of grotesque homicides of LGBTQ individuals and broad impunity for these crimes sometimes with a suspected complicity of investigative authorities”.

[24]     For example between January 2014 and December 2016 two hundred and two persons, sexual minorities were killed as a result of their sexual orientation or gender identity including a hundred and eight trans women, ninety three gay men and one lesbian woman.

[25]     The highest number of victims seventy six was recorded in 2016. Of the total two hundred and two victims thirty three of them showed signs of torture while fifteen showed signs of sexual violence. That is from Item 6.4 of the NDP.

[26]     From Items 6.2 I take the following two examples. On the 6th of May 2019 a group of six armed men attacked and robbed a shelter where eleven LGBTQ asylum seekers were staying setting the door of the shelter on fire.

[27]     The shelter’s legal representative informed Amnesty International that the men returned a few hours later shouting homophobic slurs and threatened to kill them if they did not leave the neighborhood.

[28]     According to the 2018 national study on discrimination against sexual and gender minorities in Mexico 41.8 percent of the respondents indicated that they did not believe that adequate public healthcare services were available for sexual minorities and 31.1 percent don’t even know if those services exist. The absence of adequate health services for sexual minorities is a noted problem in Mexico.

[29]     Furthermore in February 2019 the Federal Government noted, announced that it would no longer fund civil society organizations for activities such as outreach or HIV testing. Mexico city has the highest number of documented HIV cases in all of Mexico, despite these high infection rates medical treatment for HIV and AIDS is largely unavailable in less urban areas due to cost.

[30]     Even in areas that have free anti retro viral drugs they are usually reserved only for the sickest people. Many in Mexican society hold misconceptions about the LGBT community and HIV that further contribute to the widespread stigma associated with both HIV and LGBTQ persons.

[31]     A national survey of Mexicans found that fifty nine percent believe that HIV/AIDS is caused by homosexuality. These misconceptions and stigmas exist even among medical providers in Mexico. In fact most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who seek treatment.

[32]     The Commission on Human Rights in Mexico City also reported that HIV and AIDS clinics often actively mistreat and discriminate against LGBTQ persons living with HIV or AIDS. That is from Item 6.3 of the NDP.

[33]     Claimant’s Exhibit 5 contains letters from family and friends as well as medical documentation which confirm all of the core allegations underpinning the claimant’s claim, including his sexual orientation and HIV positive status.

[34]     Relying on those items I find that there is a strong objective basis for the fear you have of being persecuted in Mexico. I also found that you subjectively fear persecution, outright violence or death in Mexico on the basis of your sexual orientation and your HIV status. Therefore I find that your fear is well founded.

STATE PROTECTION:

[35]     States are presumed to be capable of protecting their citizens but this presumption is rebuttable with clear and convincing evidence.  The NDP for Mexico quoting a number of nongovernmental organizations indicate that there are high levels of distrust in the authorities and that rights for gay people are still treated as exceptions to be granted at the discretion of local officials.

[36]     According to the US country reports for 2016, civil society groups claimed police routinely subjected LGBTQ persons to mistreatment while in custody.

[37]     According to several sources the judicial system is not effective in investigating crimes committed against sexual minorities.

[38]     Furthermore there is evidence that state actors have been and continue to be involved in forced disappearances and extra judicial killings adding to the reasons why LGBTQ persons would fear approaching the state for protection and the reference for that, references Item 2.1of the NDP at Page 4.

[39]     Another example from the NDP on August 5th of 2017 an eighteen year old man was beaten to death by a group of ten taxi drivers who worked at a taxi stand outside a gay bar in San Luis Potosi. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation.

[40]     The President of the San Luis Potosi state commission for human rights agreed with that. Advocates also argued negligence in investigating the case due to homophobia in the police. As of October 2017 no one had been arrested in connection with the killing. That is from Item 2.1.

[41]     From Item 6.1 according to an organization called Collectivo Leange(ph). Officials from the public ministry often mistreat LGBTQ persons and refuse to open investigations for crimes against them.

[42]     Furthermore despite the training provided to judicial authorities on sexual diversity there is still a lot of intimidation and threats against the LGBTQ population due to what they perceive as faults against morals which are then used to extort members of the LGBTQ community.

[43]     This is but a small sample of the documentation in the NDP and in the claimant’s country conditions documentation which support my conclusion that Mexico is unable or unwilling to provide protection to individuals like this claimant.

[44]     I found all, sorry I found the claimant to be credible. I find that the objective evidence supports the claimant’s evidence and that it demonstrates on a balance of probabilities adequate state protection for you in Mexico would not be reasonably forthcoming.

INTERNAL FLIGHT ALTERANTIVE:

[45]     I purpose Mexico City as an internal flight alternative outside of Puebla that I believed would be safe and reasonable in the claimant’s circumstances. For the following reasons I find that the claimant would face a serious possibility of persecution on the grounds of his sexual orientation in Mexico City and therefore the internal flight alternative location fails the first prong of the analysis.

[46]     The first prong of the analysis asks whether there is a serious possibility of persecution or a Section 97 risk on a balance of probabilities in Mexico City.

[47]     Item 6.4 of the NDP which is a response to information request on Mexico City depicts Mexico City as the most progressive area in Mexico concerning LGBTQ rights. For example there was a first district in Mexico to allow legal same sex marriage and to allow a person to change their gender identity.

[48]     One source that is quoted in this item talks about gay friendly zones or zones where the LGBTQ community feel safe from being abused. However they note that there are police officers that look for anyway to intimidate or extort same sex couples wherever they are.

[49]     The UN special repertoire on extra judicial or arbitrary executions notes that there remains broad impunity for crimes against the LGBTQ community.

[50]     According to a report by the transgender law society and Cornell University Law School, LGBTQ clinic, police harassment against the LGBTQ community remains high in Mexico City.

[51]     A 2016 report indicates that out of four hundred and twenty five person’s interviewed, one hundred and thirty nine reported some form of abuse by authorities including delays in or refusal to provide services, violence and insults. That comes from Item 6.4.

[52]     Claimant’s Exhibit 5 at Tab 22 contains articles which describe a shortage of HIV/AIDS drugs which has not yet been resolved in Mexico placing the lives of thousands of people at risk.

[53]     Again these are but a few examples of the violence and persecution that gay people face on a daily basis and Mexico City does not appear to be as safe as it is socially liberal for the LGBTQ community.

[54]     Ultimately I find that the preponderance of evidence weighs in favor of finding that the claimant would face a serious possibility of persecution on a convention ground in Mexico City and throughout Mexico. Therefore I find that Mexico City is not a viable internal flight alternative for the claimant.

CONCLUSION:

[55]     I have considered your testimony, the documentary evidence and the country conditions documentation and I find that there is a serious possibility of persecution by Mexican society generally on the basis of your sexual orientation and your HIV positive status should you return to Mexico.

[56]     I therefore find you to be a Convention refugee under Section 96 and I accept your claim for protection.

[57]     That is my decision thank you very much. Thank you so it is 11:56 I have delivered my decision we will go off record thank you everyone.

———- REASONS CONCLUDED ———-

Categories
All Countries Egypt

2019 RLLR 141

Citation: 2019 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2019
Panel: Y. Rozenszajn
Counsel for the Claimant(s): El-Farouk Khaki
Country: Egypt 
RPD Number: TB8-33214
ATIP Number: A-2021-00256
ATIP Pages: 0000128-000132

DECISION

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

[2]       The oral reasons form the basis of the decision and they are recorded on a CD Rom; a transcript is also produced but the transcript does not get viewed for any spelling errors or mistakes, so if there is any doubt as to the meaning in the transcription regard must be had to the original CD Rom audio recording.

[3]       So, the claimant [XXX] claims to be a citizen of Egypt and is claiming refugee protection pursuant to Sections 96 and 97.1 of the Immigration and Refugee Protection Act.

[4]       I have considered the Guidelines on Guideline 9, sexual orientation and gender identity and expression guideline, SOBI Guideline in deciding the claim.

[5]       By way of determination I find that the claimant is a Convention Refugee for the following reasons.

[6]       I find he has established a serious possibility of persecution based upon the convention ground of particular social group, which is gay men in Egypt or homosexual men in Egypt.

[7]       The claimant’s allegations are found in Exhibit 2 which is his basis of claim form and he basically alleges that he is a gay man, that he has known since 11 that he was homosexual and he likes men and is not attracted to women.

[8]       It is a very long story and I am not going to summarize all of it, but suffice to say that he likes Europe, he likes Germany, he has been many, many times to Europe. He studied there and went back and there were many attempts at seeking jobs and other forms of permanent status in Europe over the years and he just was not able to and he always came back to live in Egypt where he basically either was a recluse or he was engaged in some form of online gay dating to the best of his abilities as he could and when those platforms came on the market and (inaudible) sufficiently.

[9]       He alleges that he had great hopes for Egypt during the revolution, but it did not materialize. He alleges that ultimately he was actually entrapped while using a (inaudible) application where he was basically arrested by a couple of undercover cops who then basically abused him, took him to the station and then eventually let him go.

[10]     At that point he felt he was unsafe in Egypt and he came to Canada where he claimed refugee protection.

[11]     So, in terms of the claimant’s identity as a national of Egypt, I find he has established his identity by reason of the supporting documentation and his testimony, mainly his Egyptian passport. I find he is a national of Egypt as he alleged.

[12]     In terms of credibility, I find the claimant to be ultimately a credible witness and therefore believe what he has alleged in support of his claim. His identity as a homosexual man is supported by numerous documents, including various profiles and text messages and exchanges with various other gay men, which is in the record such as in Exhibit 10 and 11. There are a number of support letters also that testify to that.

[13]     His testimony generally consists on that particular aspect of his credibility or his story, so there is no reason to question it.

[14]     The main issues in this case were … before we get into the re-availments I would also note that there were a couple of omissions from the basis of claim form, such as the names of the officers who arrested him, but I find that I accept his explanation that they were either fake names or he did not remember or they were not actually listed properly because they were just really quick messages that did not actually mention the name. I find all that is sufficient and I find that there is really no reason to expect that he would learn the names of the undercover officers if they actually were undercover. So, I find there is no reason to doubt his credibility on that basis having heard the explanation.

[15]     The main issue really is the numerous re-availments to Egypt and failures to claim over a very, very lengthy period of time, stretching all the way to the 1990s and just the continuing ability to enter and exit Egypt constantly and really no apparent fear to return and leave Egypt as a gay man.

[16]     So, I put that to the claimant and he explained that really it has got to do with his risk profile that changed materially recently, just before he left when he was arrested which really caused him to fear his safety. Beforehand he really wanted to live he says in Europe and he made many, many efforts to get jobs in Europe and that also is corroborated and appears credible on its face as we can see in the record, given the numerous letters of responses for various jobs and permits he tried to get.

[17]     But he felt that the risk was just too high, that he would be barred from Europe in the future. He could not continue to try to get a job or that it might even lead him into more trouble if he was deported as a failed refugee claimant.

[18]     Now, I find that I ultimately accept his explanations because there is a very evident desire to leave the country, but he wanted to do it in a more commercial skilled-worker fashion and that is a legitimate reason and I find also that there is a big difference between his risk profile in those past years and the risk profile that he has now, which is he now has a record with the police, a record of arrest and so his risk profile is a lot higher than it was before.

[19]     Ultimately, you know, it is ultimately his decision as to why he chose to live as a recluse in Egypt and put himself at risk like that where he could not be openly homosexual, it is really his own problem at this point, but I find that in terms of his credibility it is sufficient that his risk profile is just different now than it used to be and so again, there is no reason to doubt his credibility and I do not find that the re­ availments are sufficient to therefore dismiss the claim in and of itself.

[20]     Having found him credible I find there is also a nexus to the convention, it clearly goes to a particular social group.

[21]     In terms of state protection I find that state protection has been rebutted in this case because it will not be reasonably forthcoming given that the agent of persecution is the State, it is the police, the undercover authorities and that is well corroborated in the Item 2.1 of the NDP, the U.S. DOS report which states that in fact the government does go online and track homosexuals who on various (inaudible) applications and they prosecute LGBTI persons on charges such as debauchery and violating teachings of religion. There are prison sentences upon conviction of up to 10 years.

[22]     According to a local rights group there have been more than 250 reports of such arrests since 2013 and while there are anti-discrimination laws they are not used to protect the homosexual individuals at all in Egypt and that is all in addition to the societal discrimination, legal discrimination and social stigma that really inhibits homosexuals from organizing and trying to defend their rights in Egypt and it is you know all corroborated.

[23]     There are reports of arrests and harassments of homosexuals in this report, including intimidation and restrictions and basically self-censorship which all corroborates the claimant’s account of basically living as a recluse most of the time in Egypt.

[24]     So, I find that there is no state protection in this case given that the state is the agent of persecution and the objective basis for these fears that are on the record.

[25]     Turing to internal flight alternative, I find that the first prong is not met in this case. There is a serious possibility of persecution I find throughout Egypt. There is no evidence of any particular city such as for example Alexandria or Giza has any more tolerant attitudes towards homosexuals compared to Cairo and there is no evidence that the state is any more tolerant and persecutory against homosexuals in other parts of Egypt, (inaudible) to Cairo which actually the most metropolitan place in the entire country.

[26]     So, I find that internal flight alterative does not exist for the claimant.

[27]     Having considered all the evidence I find that the claimant has a well-founded fear of persecution against Egypt.

[28]     I find that he has established that he has an entitlement to be considered and determined to be a Convention Refugee. I therefore accept his claim for him to be a Convention Refugee based upon a particular social group as a homosexual gay man.

[29]     That is it; thank you very much.

———- REASONS CONCLUDED ———-

Categories
All Countries Rwanda

2019 RLLR 140

Citation: 2019 RLLR 140
Tribunal: Refugee Protection Division
Date of Decision: July 23, 2019
Panel: Me Dominique Setton
Counsel for the Claimant(s): El-Farouk Khaki
Country: Rwanda
RPD Number: TB8-31167
ATIP Number: A-2021-00256
ATIP Pages: 0000124-000127

REASONS FOR DECISION

INTRODUCTION

[1]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally.

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

[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 claim to have a well-founded fear of persecution due to your sexual orientation as a homosexual man in Rwanda. You allege that you first felt that you were different at the age of 14 while in attendance at a seminary school. You confided in a friend called [XXX], who eventually lead you to connect with a group that tried to assist SOGIE people in Rwanda called Ubumwe. This lead you to meeting [XXX], also a student, with you and you became friends and lovers. You were discovered at school in the dormitory having sex by the headmaster, while the other students were class. This lead to a two week suspension, and your parents were notified. You returned long enough to write your exams to graduate, and then you returned to your hometown, but in a separate house away from the family. You continued to see [XXX]. Your father discovered this and arranged to have you arrested by police, where you were held for a week, and treated with severity. Your elder brother found a way to get you out of jail, and he made arrangements to have you sent to your grandmother’s where you stayed, in hiding. Your grandmother was ill one day and asked you to go to the store where you were spotted by people who knew you, and you fled never returning. Your bother found a safe place for you to stay and helped to make arrangements for you to leave Rwanda.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your member of a particular social group.

ANALYSIS

[6]       The determinative issues in this case are credibility, state protection, and internal flight alternative.

Identity

[7]       I find that your identity as a national of Rwanda is established by your testimony and the supporting documentation filed including your passport, national identity card, and a letter from Black Cap Aids Prevention, and the Ubumwe from Rwanda, both of which identify you as a gay man.

Credibility

[8]       I find you to be a credible witness and therefore believe what you alleged in support of your claim. You provided educational documents and photos of you and your lover [XXX] in Rwanda, and you continue to be active in LGBTQ activities in Toronto.

[9]       You testified in a straightforward manner and, there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[10]     The panel also adverts to the principle from Maldonado v. M.E.I [1980] 2.F.C. 302, that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.

State protection

[11]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. The objective documents in the National Documentation Package (NDP) for Rwanda, item at 6.1, The Rights of LGBTI People in Rwanda and item 6.2, Situation of sexual minorities, confirm that although homosexuality is not illegal, SOGIE persons are stigmatised and marginalised. The documents report that they are often jailed due to prevailing religious and cultural beliefs. Our research also confirms that in Rwanda, LGBT persons face arbitrary arrest and institutional discrimination, that human rights violations are underreported for fear of further persecution or stigmatisation.

Internal flight alternative

[12]     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 Rwanda. The country is very small, and the societal beliefs are the same everywhere. The claimant would not be able to continue to express himself freely as homosexual man in Rwanda.

CONCLUSION

[13]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

(signed)           Me Dominique Setton

July 23, 2019

Categories
All Countries Ukraine

2019 RLLR 139

Citation: 2019 RLLR 139
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Roderick Flynn 
Counsel for the Claimant(s): Peter Neill
Country: Ukraine
RPD Number: TB8-28086
ATIP Number: A-2021-00256
ATIP Pages: 0000121-000123

[1]       MEMBER: I have considered the evidence in this case and I’m ready to render a decision orally.

[2]       The claimant, [XXX], is a citizen of Ukraine and is claiming refugee protection pursuant to s. 96 and s. 97 of the Immigration and Refugee Protection Act.

[3]       I have considered all the evidence and I find that you are a Convention refugee for the following reasons.

[4]       You have provided credible and consistent evidence that you are a bisexual man who has been persecuted in Ukraine, including a homophobic attack in December 2016, which led to a three day hospitalisation.

[5]       You have alleged that you a bisexual man who faces persecution because of your sexual orientation in Ukraine.

[6]       Your identity as a citizen of Ukraine has been established by the supporting documentation, including your passport and birth certificate.

[7]       I find you to be a credible witness and therefore I believe what you have alleged in support of your claim.

[8]       You have testified in a straightforward and there were no relevant inconsistencies in your testimony or contradictions in your testimony and other evidence before me.

[9]       I am satisfied that you are a bisexual man who faces persecution in your country of origin of Ukraine because of your bisexual orientation.

[10]     I find that State protection would not be reasonably forthcoming in your case. Objective country documentation as well as the objective documentation provided by your counsel shows persistent homophobia among citizens and police, with insufficient investigation and prosecution of reports of homophobic attacks and events, including your own, because of a persistent and widespread attitude of homophobia throughout the country. This attitude of persecution has resulted in multiple reports of harassment of gay and bisexual people throughout the country.

[11]     Therefore, I am satisfied that there would be no safe place for you to return to in Ukraine because of your sexual orientation.

[12]     I conclude, therefore, you are a convention refugee and I accept your claim.

DECISION CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 138

Citation: 2019 RLLR 138
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: D. McKeown
Counsel for the Claimant(s): M. Mary Akhbari
Country: Nigeria 
RPD Number: TB8-26572
ATIP Number: A-2021-00256
ATIP Pages: 0000117-000120

DECISION

[1]       MEMBER: I’ve considered the testimony and evidence and I’m now prepared to render a decision.

[2]       The claimant is [XXX]. He seeks refugee protection against Nigeria pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]       For the following reasons the panel finds the claimant is a Convention refugee and this claim is accepted.

[4]       COUNSEL: Just relax. Like sit back and chill out. Okay.

[5]       MEMBER: Should I … should I do the rest in writing perhaps?

[6]       COUNSEL: No, you can read it.

[7]       MEMBER: I’m … I’m just going to keep talking from here.

[8]       This claim was based on the following allegations. The claimant is bisexual. He left Nigeria in [XXX] 2017 when pressure from the community and his family became too much to bear any longer regarding his sexual orientation.

[9]       The claimant arrived in the United States on [XXX], 2017 and thereafter arrived in Canada on [XXX], 2018. The claimant signed his Basis of Claim on September 21st, 2018.

[10]     The panel took into consideration the Chairperson’s guidelines on sexual orientation and gender identity and expression when considering the process of this hearing and … and assessing the facts of this case.

[11]     The identity of the claimant was established on the basis of his Nigerian passport. The original of which was seized by the Minister.

[12]     The panel’s only significant concern in this claim was his failure to seek protection in the United States. The claimant was an educated and successful businessman. His friends in the United States knew about his sexual orientation. Instead of seeking legal means to remain in the understood he colluded with his friends to engage in a fake marriage of convenience so that he could immigrate there.

[13]     The claimant also explained that he feared the American Government and president who is not welcoming of refugees.

[14]     The panel does not accept these explanations. The United States is a democratic country which upholds the rule of law. They are Convention signatory and maintain a functioning asylum determination system.

[15]     It is simply not credible that the claimant took no steps to secure his own safety and protection in the United States until just before his visa was set to expire. The claimant’s failure to seek protection in the United States does undermine his allegations of subjective fear and the credibility of this claim. Having said that, this concern being the only significant concern in this claim the panel is prepared to give the claimant the benefit of the doubt.

[16]     The claimant is entitled to the presumption that he has been truthful unless there is reason to believe otherwise. While this failure to claim is concerning, the panel cannot say that it undermines the credibility of this claim in its entirety.

[17]     In all of the respects the panel found that the claimant was credible. The claimant spoke about his relationships in Nigeria, both with men and his wife. He spoke about how he lived and how he managed to keep his sexuality hidden from the community.

[18]     The claimant answered difficult questions posed by the panel. And where the panel had concerns about the narrative, those concerns were answered with reasonable and plausible explanations. There were no inconsistencies or embellishments.

[19]     The panel found the claimant’s testimony was compelling and the claimant was amply … the claim was amply supported by objective documentation including extensive proof that this ordeal has taken a severe toll on the claimant’s mental health.

[20]     These supporting aspects of the claim were not outweighed by his failure to claim in the United States.

[21]     The National Documentation Package for Nigeria supports this claim. The panel has access to reliable sources such as the US DOS report and the UK Home Office report. Each of which are clear about the consequences of same sex relationships in Nigeria. Punishments can include vigilante justice and 14 years in prison, for example.

[22]     Whereas the State is the agent of persecution, the claimant has rebutted the presumption that State protection would be adequate or forthcoming.

[23]     Likewise, there is no location in Nigeria the claimant could go where he would not face a serious possibility of persecution.

[24]     For all these reasons the panel finds this claim is credible. The claimant’s fear is well-founded. The claimant faces a serious possibility of persecution in Nigeria on account of his membership in a particular social group being a bisexual person.

[25]     The claimant is a Convention refugee and this claim is accepted.

[26]     Thank you very much.

[27]     COUNSEL: Thank you.

[28]     MEMBER: Thank you both very much. Thank you, sir, for being here and I know that this was difficult for you. Go home and get some sleep.

[29]     CLAIMANT: Thank you so much.

[30]     MEMBER: Thank you very much. Everyone have a good afternoon.

———- REASONS CONCLUDED ———-

Categories
All Countries Pakistan

2019 RLLR 40

Citation: 2019 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: September 13, 2019
Panel: K. Gibson
Counsel for the Claimant(s): John Savaglio
Country: Pakistan 
RPD Number: TB8-01706
Associated RPD Number(s): TB8-01741, TB8-01743
ATIP Number: A-2021-01124
ATIP Pages: 000231-000243

REASONS FOR DECISION

[1]       [XXX] (the “principal claimant”), his wife [XXX] (the “associate claimant”), and their four children [XXX], [XXX], [XXX] and [XXX] claim to be citizens of Pakistan and seek refugee protection pursuant to s. 96 and s.97(l) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The panel heard these claims jointly pursuant to RPD Rule 55.

[3]       The principal claimant was appointed as designated representative for the claimants [XXX] and [XXX] as they are still minors. Claimants [XXX] and [XXX] are both adults over the age of 18 as of the date of the hearing in this claim.

[4]       The panel has considered Chairperson’s Guidelines: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (SOGIE GUIDELINES) in reaching a determination in these claims.2

ALLEGATIONS

[5]       The claimants’ allegations are set out in detail in their Basis of Claim (BOC) forms.3 In summary, the principal claimant, a 49-year-old man, alleges to be bisexual. He further alleges that his brother-in-law [XXX] and other members of Muslim extremist group Sipah-e-Sahaba Pakistan (SSP) discovered him being sexually intimate with his same sex partner in Pakistan in [XXX] 2017 and that his wife, members of her family and other members of the extremist group were all subsequently informed of the principal claimant’s sexual orientation. The principal claimant alleges to fear persecution in Pakistan by his wife’s family, members of SSP and by society in general on the basis of his sexual orientation. The associate claimant and her four children allege fear of persecution by the same agents of harm based on threats received after the discovery of the principal claimant’s sexual orientation.

[6]       The claimants left Pakistan and travelled to the United States on [XXX] 2017. They then traveled to Canada on [XXX] 2018 where they made a refugee claim at the port of entry.

ANALYSIS – PRINCIPAL CLAIMANT

Identity

[7]       The principal claimant’s personal identity and his Pakistani citizenship has been established on a balance of probabilities by his Pakistani passport, a copy of which is on file.4

Nexus

[8]       The principal claimant alleges fears based on his sexual orientation as a bisexual man. The panel therefore analysed his allegations under the Convention ground of particular social group, namely bisexual men.

Credibility

[9]       The principal claimant testified in a largely straightforward and spontaneous manner about his sexual orientation and the challenges he experienced in living as a bisexual man in Pakistan, and hiding this aspect of his identity from almost everyone, including his family, for much of his life. There were no inconsistencies in his testimony that go to the heart of the claim or that have not been satisfactorily explained.

[10]     The claimants provided several documents in support of their claims, including affidavits from three of the principal claimant’s brothers;5 a letter from relative [XXX] who hosted the family in [XXX] when they fled their home in Lahore prior w leaving Pakistan;6 photos of the principal claimant and his former same-sex partner and of the principal claimant at a Pride event in 2018;7 marriage and family registration certificates;8 a letter from the principal claimant’s former business partner who learned of the principal claimant’s sexual orientation and forced him to relinquish his share of the business;9 documents related to the principal claimant’s position with and co-ownership of his former business in Pakistan;10 a medical document for treatment the principal claimant received after he was assaulted on discovery of him with the former partner;11 and, a number of documents from The 519 Church Street Community Centre confirming that the principal claimant is a member, that he attended newcomer orientation and peer support group events there more than 20 times after his arrival in Canada.12

[11]     The panel is concerned about the lack of additional documentation related to the principal claimant’s former same-sex partner [XXX], given the very long duration and importance of this relationship, as no documents were provided other than a few photos taken in the 1990s. The principal claimant testified that they were together for 32 years, from when the principal claimant was a teenager until he left Pakistan in [XXX] 2017 just before his forty-eighth birthday. The principal claimant also testified that he and [XXX] communicated via WhatsApp for a few months after the principal claimant came to Canada before losing touch with one another around [XXX] 2018. When the panel asked the principal claimant as to why he does not have copies of these messages or a support letter from [XXX] he testified that they lost touch around [XXX] 2018 when [XXX] moved from Lahore to Karachi, and that the prior WhatsApp messages between them were lost when the principal claimant changed cell phones.

[12]     The panel considered the inherent difficulties often found in providing corroborating documentation in many sexual orientation claims, as highlighted in the SOGIE Guidelines, in weighing this concern. Given the consistency of the principal claimant’s testimony around this relationship and within his claim generally, and the detailed answers the principal claimant provided regarding the concerns raised, the panel accepts the principal claimant’s explanations regarding these concerns as reasonable and draws no negative inference as to his credibility.

[13]     The panel therefore finds that the principal claimant began questioning his sexual orientation as a child around age 13 or 14. The panel finds the principal claimant began a relationship with [XXX] in secondary school that continued after the principal claimant married the associate claimant in 2012, and that the associate claimant was at that time unaware of the principal claimant’s sexual orientation or the ongoing relationship with [XXX]. The panel finds that [XXX] the brother of the associate claimant, is a supporter of Muslim extremist group SSP, and that he and several other members of SSP discovered the principal claimant and [XXX] together in [XXX] 2017. [XXX] subsequently informed the associate claimant and her family members and threatened to kill the principal claimant.

[14]     Considering the entirety of the evidence, and in the absence of evidence to the contrary, the panel accepts the principal claimant’s allegations regarding his sexual orientation as true. The panel finds that the principal claimant is a bisexual man,

Prospective Risk of Return

[15]     A claimant must demonstrate that they would face a serious possibility of persecution based on a Convention ground if they were to return to their country or that, on a balance of probabilities, removal to their country would subject them personally to a danger of torture within the meaning of Article 1 of the Convention Against Torture or to a risk to their life or to a risk of cruel and unusual treatment or punishment.

[16]     In gauging the principal claimant’s prospective risk of return to Pakistan, the panel has taken into consideration his personal profile and particular situation at the present time.

[17]     The panel has also taken into consideration the objective evidence regarding the current situation in Pakistan particularly for bisexual men. The documentary evidence in the National Documentation Package (NDP) for Pakistan along with documents provided by counsel, show that LGBT individuals from privileged backgrounds do enjoy some degree of openness in certain circles provided that they lived discreetly.13 The evidence dearly states that consensual same-sex relationships are criminalized in Pakistan, but also indicates that these laws are rarely enforced.14 However, they are often used to threaten or blackmail people.15 There are also consistent reports of attacks and physical violence against men who are known to engage in homosexual relationships in Pakistan.16 Objective sources also confirm that there are no laws to protect against discrimination based on sexual orientation.17 They further provide that openly LGBT individuals would be subject to a high risk of societal violence.18

[l8]      Considering the entirety of the evidence, the panel finds that bisexual men may suffer discrimination and violence that could amount to persecution based on their sexual orientation in Pakistan at present. As the principal claimant has demonstrated that he is a bisexual man and therefore a member of this community, the panel further finds that he has established that his claim has an objective basis and his fear is well-founded.

State Protection and Internal Flight Alternative

[19]     Claimants must establish through clear and convincing evidence that the State would be unwilling or unable to provide adequate protection if they were to return to their country. Claimants must also establish that they have a well-founded fear of persecution throughout their country of nationality. The panel finds that the principal claimant has rebutted the presumption of state protection and that an internal flight alternative (IFA) would not be available to him.

[20]     According to the objective evidence, the LGBT community faces widespread discrimination and violence throughout Pakistan.19 There is a national law against same sex activities in Pakistan and although the authorities rarely prosecute cases, the law is in place and it may be applied.20 These laws also deter members of the LGBT community from acknowledging their sexual orientation or reporting abuses to the police. The evidence shows that treatment of members of the LGBT community is not limited to any particular area of Pakistan, but is widespread.21

[21]     The panel also notes that there are reports of corruption and impunity within the police forces. Reports indicate that the police are under-sourced, poorly trained, badly paid, low in morale, and viewed with suspicion by the courts and society because of their poor human rights record.22

[22]     Considering the entirety of the evidence and in consideration of all the elements noted, the panel concludes that there is clear and convincing evidence that at this time the State is unable or unwilling to provide the principal claimant with adequate protection in Pakistan. The panel finds that the presumption of State protection has been rebutted in these particular circumstances. The panel further finds there is a serious possibility of persecution for the principal claimant throughout Pakistan at this time, Therefore, a viable internal flight alternative is also not available at present for the principal claimant in his country of nationality.

ANALYSIS – ASSOCIATE CLAIMANT AND THE FOUR CHILDREN

[23]     The determinative issues in the associate claimant’s and the four children of the principal and associate claimants’ cases are credibility and the well-foundedness of their allegations regarding Pakistan.

Identity

[24]     The personal identities of the associate claimant and the four children and their Pakistani citizenship has been established on a balance of probabilities by their Pakistani passports, copies of which are on file.23

Nexus

[25]     The associate claimant and the four children allege fears based on their familial relationship to the principal claimant. The panel therefore analysed their allegations under the Convention grounds of particular social group, namely family of a bisexual man.

Credibility

[26]     A claimant’s sworn testimony is presumed truthful unless there are reasons to doubt the veracity of their allegations.24 After considering the principal claimant’s testimony in its entirety, the panel finds that material aspects regarding threat to the associate claimant and the four children are not credible. The areas of concern are outlined below.

[27]     The panel notes that the principal claimant provided the majority of the testimony at the hearing as his experiences are the most central to the present claims. However, the associate claimant and claimants [XXX] and [XXX] were all given opportunities to testify themselves, and each indicated they agreed with the testimony the principal claimant had provided.

[28]     The claimants allege that [XXX] repeatedly tried to pressure the associate claimant and oldest son [XXX] to abandon the principal claimant after his sexual orientation was discovered. The claimants also allege that [XXX] and other family members tried in [XXX] 2017 to forcibly abduct [XXX] who was then 18 years old, to take him to [XXX] home and away from his father.

[29]     At the hearing, the principal claimant testified that during the failed abduction attempt [XXX] threatened that if [XXX] continues to support the principal claimant then [XXX] is also implicated in the sin associated with his father’s sexual orientation. The panel asked the principal claimant why he didn’t mention this threat in his BOC. The principal claimant testified that the failed abduction attempt was mentioned in the BOC. The panel repeated its question. The principal claimant testified that if the abduction attempt were to take place then there must be solid reason behind that incident.

[30]     The panel finds the principal claimant’s testimony was evasive and failed to address the question. The claimants state in their BOCs that the abduction attempt was an effort to get the principal claimant’s family to abandon him. Threatening [XXX] instead when the abduction and other efforts to isolate the principal claimant were unsuccessful is a significant and distinct component to the claimants’ allegations. Threat migrating from the principal claimant to his family members is not a minor detail and the panel finds the failure to mention this in the BOCs is a material omission.

[31]     The panel further notes that the principal claimant wrote in his BOC that he and the associate claimant did not believe [XXX] meant to harm his son Haris in the abduction attempt and ‘that he had taken such actions in a fit of emotion because of his extremist religions background’.25 The BOC further states that the associate claimant did not want to implicate her only brother in any kind of criminal case regarding the attempted abduction.26 The panel notes that all the claimants used the narrative of the principal claimant in their BOCs.

[32]     The panel finds these BOC statements further undermine the credibility of the principal claimant’s testimony regarding [XXX] threatening [XXX] during the alleged failed abduction. The panel therefore finds the claimants failed to establish on a balance of probabilities that such an abduction attempt or threats to [XXX] ever took place.

[33]     The principal claimant in his oral testimony stated that the associate claimant and their other three chidlren would also be at risk from [XXX] as they, too, would be seen as supporting him in his so-called sin having not divorced or otherwise left the principal claimant The principal claimant also testified, however, that there had been no actual threats against the associate and remaining claimants. Everything in the BOC regarding the associate claimant and the four children and [XXX] indicates he pressured them repeatedly to leave the principal claimant but there is no mention of harm directed at them. As the panel has found the claimants failed to establish the threat against [XXX] took place, it further finds on a balance of probabilities that the other claimants were not threatened by [XXX] either.

Prospective Risk of Return

[34]     The panel considered whether the associate claimant and the four children would be at risk from SSP or otherwise in Pakistan based on their relationship with the principal claimant and given that his bisexual orientation was discovered by the associate claimant’s family and through them by the SSP. The panel finds the associate claimant and the four children failed to establish that they would face a serious possibility of harm or a danger of torture or a risk to life or risk of cruel and unusual treatment or punishment should they return to Pakistan.

[35]     At the hearing, the principal claimant testified that he believed the associate claimant and the four children would be at risk of harm al the hands of SSP should they return to Pakistan. The panel notes that the claimants did not allege any threats by SSP against the associate claimant or the four children in the BOC forms. The only allegations in the BOC involving the associate claimant and the four children involve claimant [XXX] and [XXX] and the panel has determined those allegations are not credible.

[36]     Even accepting that SSP is aware of the associate claimant and the four children and their relationship to and continuing support for the principal claimant as a bisexual man, the available country condition evidence does not indicate that this relationship would result in harm to these claimants. In reviewing the NDP evidence, along with submissions from counsel, the panel finds that the claimants have foiled to establish on a balance of probabilities that SSP and other extremist groups in Pakistan have any interest in the families of LGBT individuals or have engaged in acts of violence or other persecution against them.27

[37]     Given the country condition documents provided by the claimants, and the more than 4,700 pages of country conditions documents in the NDP, it is reasonable to expect that there would be clear reports of the SSP or other groups engaging in this type of harm if it was something they actually did. The absence of such reports is indicative of SSP and other groups not having the interest and ability to persecute families of LGBT individuals.

[38]     The panel has found that the allegations of threats against the associate claimant and the four children by [XXX] are not credible. The objective evidence also does not establish that wives or children of bisexual men typically face any risk of harm in Pakistan at present from SSP or other extremist groups. The panel therefore finds that the associate claimant and the four children do not face a serious possibility of harm should they return to Pakistan.

DETERMINATION – PRINCIPAL CLAIMANT

[39]     The panel finds that the principal claimant has established that he faces a serious possibility of persecution in Pakistan based on his sexual orientation as a bisexual man. The panel concludes that the principal claimant is a Convention refugee and therefore accepts his claim.

DETERMINATION – ASSOCIATE CLAIMANT AND THE FOUR CHILDREN

[40]     The panel further finds that the associate claimant and the four children of the associate and principal claimant have not established a serious possibility of persecution in Pakistan on a Convention ground nor have they established, on a balance of probabilities, that they would be personally subjected to a danger of torture, or face a risk to their lives, or a risk of unusual treatment or punishment upon their removal to Pakistan. The associate claimant’s refugee claim and those of the four children are rejected.

(signed)           K. Gibson

September 13, 2019

1 Immigration and Refugee Protection Act, S.C.1001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibits 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6
4 Exhibit 1, Pakistan passport no. [XXX], issued [XXX].
5 Exhibit 7, pp. 10-19; Exhibit 9, pp 8-10.
6 Exhibit 7, pp. 20-28.
7 Exhibit 7, pp. 36 39.
8 Exhibit 5, pp. 16-22.
9 Exhibit 6.
10 Exhibit 7, pp. 1-2.
11 Exhibit 5, p. 23.
12 Exhibit 7, pp. 3-9; Exhibit 9, pp. 12-13.
13 Exhibit 3, National Documentation Package (NDP) for Pakistan (March 29, 2019 version), items 1.6, 1.13, 1.22, 1.25, 2.1, 5.1, 6.1, 6.2, 6.3 and 6.5
14 Ibid.
15 Ibid
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Ibid., item 10.1.
23 Exhibit 1, Pakistan passport no. [XXX], issued [XXX], [XXX] Pakistan passport no. [XXX]issued [XXX] Pakistan passport no. [XXX] issued [XXX]; Pakistan passport no. [XXX] issued [XXX]; Pakistan passport no. [XXX].
24 Maldonado, Pedro Enrique Juarez v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (CA); 31 N.R. 34 (F.C.A.).
25 Exhibit 2.1, BOC narrative para. 18.
26 Ibid.
27 Exhibit 3, NDP for Pakistan, supra note 13.

Categories
All Countries Mexico

2019 RLLR 39

Citation: 2019 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: November 14, 2019
Panel: Kari Schroeder
Country: Mexico 
RPD Number: VB9-01375
ATIP Number: A-2021-01124
ATIP Pages: 000226-000230

— DECISION

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

[2]       In rendering my decision, I have applied the Chairperson’s Guidelines on sexual orientation and gender identity.

ALLEGATIONS

[3]       The following is a brief synopsis of the allegations put forward by the claimant:

[4]       The claimant fears returning to Mexico due to her sexual orientation as a bisexual woman. The claimant had her first homosexual relationship after high school. The two women were caught one day by a teacher and the claimant was refused entrance to the school for the following school year. The claimant and her girlfriend were also attacked on the street, and her girlfriend’s car was destroyed. On one occasion, they were threatened at gunpoint. The claimant went to the police but nothing was done.

[5]       In 2013, the claimant moved to Playa del Carmen for a work opportunity. The claimant was approached and threatened by a group of men who had seen her holding hands with another woman. On another occasion, a group of men threw stones at her house. The claimant moved several times to avoid the threats. Her car was also damaged in an attack, and in 2018 her house was broken into with all of her belongings destroyed. The intruders left a threatening note stating that she was going to die.

[6]       The claimant entered Canada on [XXX], 2018 and claimed refugee protection in February of 2019.

DETERMINATION

[7]       I find that the claimant is a Convention refugee pursuant to s. 96 of the Act for the reasons that follow:

ANALYSIS

[8]       The claimant’s identity today has been established through her sworn testimony as well as a certified copy of her passport on file.

[9]       In terms of credibility, when assessing credibility there is a presumption that claimants are telling the truth unless there is a reason to doubt the claimant’s allegations. In this case I have no reason to doubt the truthfulness of the claimant’s story. She testified in a straightforward manner with no embellishments and there were no inconsistencies between her testimony and her basis of claim form.

[10]     The claimant testified that she felt she was different starting in high school. Once she finished high school, she began studying translation and met a girl named [XXX]. [XXX] was openly a lesbian and helped the claimant accept her own sexuality. The relationship evolved and eventually, became physical. The claimant described [XXX] as intelligent and confident and that she was physically attracted to her. The relationship lasted four years, and at first, only the claimant’s best friend knew. The claimant described how she cried when she first opened up to her friend.

[11]     The claimant testified that two days after a teacher discovered her and [XXX] kissing in a classroom, that she was not allowed to go back to the school. She testified that if she and [XXX] ever held hands or displayed any affection in public, people on the street would give them nasty looks. The relationship eventually ended after a violent attack in 2006 which made them both afraid to go out together. The claimant described details of the attack and what was said to the two women. The claimant went to the police and when she told them why she had been attacked, the police told her that there was no case.

[12]     The claimant has had four relationships during her five years in Playa del Carmen, three with women and one with a man. She experienced several threats during that time period, even though she tried to keep those relationships with women discreet. The claimant self-identifies as bisexual. She testified that she is not currently in a relationship in Canada. She also testified that her family in Mexico does not know that she is bisexual and that they believe she is just working in Canada. She testified that when she tried to tell her mother on one occasion, her mother told her that she would rather the claimant be a drug addict than be attracted to women.

[13]     After hearing the claimant’s testimony, I believe her allegations and accept that she has a subjective fear of returning to Mexico due to her sexual orientation as a bisexual woman. Further, although she did visit Canada in 2017, I find that her failure to claim refugee protection at that time does not detract from her subjective fear. She testified that it was the attack and threatening note left in her home in 2018 that prompted her to leave the country, as at that point she was not even safe in her own home. I accept this explanation as reasonable.

[14]     I find there is a nexus in this case to the Convention ground of membership in a particular social group; namely, sexual orientation. Having accepted the claimant’s allegations as credible, I turn to the objective evidence before me.

[15]     According to the US Department of State Report on Human Rights, which is document 2.1 of the National Documentation Package, a Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. However, civil society groups claimed that police routinely subjected LGBT persons to mistreatment while in custody. Discrimination based on sexual orientation and gender identity was prevalent despite the new laws and despite a gradual increase in public tolerance of LGBT individuals. There were reports that the government did not always investigate and punish those complicit in abuses, especially outside Mexico City.

[16]     For example, on August 5th of last year, and 18-year-old man was beaten to death allegedly by a group of 10 taxi drivers outside of a gay bar. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation. Advocates have also argued negligence in investigating the case, due to homophobia in police ranks.

[17]     According to an Immigration and Refugee Board response to information request, this is document 6.2, the vague terminology in the laws such as, “abnormal sexual life”, makes LGBT people vulnerable to the interpretation of these laws by local authorities. The concept of machismo is still embedded in Mexican culture which increases homophobia and discrimination against sexual minorities.

[18]     With respect to the situation in Yucatan, where the claimant previously lived, this report states that,

“More LGBT individuals were killed in 2017 and 2018 than in previous years for reasons believed to be due to their real or perceived sexual or gender identity.”

[19]     And with respect to the situation in Mexico City, a response to information report at document 6.4, states that there are,

“gay-friendly zones where the LGBT community feels more safe from being abused. Although, there are police officers that look for any way to intimidate or extort couples wherever they are.”

[20]     In a 2015 report on the situation of human rights in Mexico, the Inter-American Commission for Human Rights reports that it does not know of any — sorry, that notes there have been some improvements in Mexico City in terms of discrimination against LGBT persons, unlike other parts of the country.

[21]     However, this same document goes on to state,

“An alarming pattern of homicides of lesbian, gay, bisexual and transgender individuals and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.”

[22]     After reviewing the objective evidence before me, I find that despite some improvements to the legal situation for same-sex couples, and some improvements to the laws preventing discrimination, LGBTI people in Mexico face an ongoing risk of violence in a culture that still places a significant stigma on sexual orientation that is anything other than heterosexual. With the exception of a few safe zones in one or two cities, the claimant would not be free to live openly as a bisexual woman in Mexico. Based on the evidence before me I, therefore, find that the claimant has established that she would face a serious possibility of persecution in Mexico based on her sexual orientation.

[23]     In terms of state protection, the evidence established that authorities are often complicit in crimes against the LGBT community and in any event, often fail to protect the victims. The claimant herself went to the police on a couple of occasions to report the attacks against her and nothing was done. I, therefore, find that state protection would not be reasonably forthcoming to the claimant in this case.

[24]     In terms of any internal flight alternative, the evidence before me establishes that the treatment of LGBT persons varies from state to state. According to document 6.4 of the National Documentation Package, the worst places where sexual minorities are most ostracized are Merida, Yucatan, Leon, Guanajuato, Monterrey, Nueva Leon and Jalisco. Even though Mexico City and Guadalajara are said to be friendlier, the evidence establishes that LGBT people are not immune from violence in any city. The claimant cannot be expected to hide in any internal flight alternative or restrict her movements to one or two neighbourhoods in a city where she may or may not be safe. I, therefore, find that there is no viable internal flight alternative available to the claimant in this case.

CONCLUSION

[25]     I find that the claimant is a Convention refugee pursuant to s. 96 of the Act and the Board, therefore, accepts her claim today.

[26]     All right, thank you very much everyone, that concludes our hearing, and I wish you the best of luck.

— DECISION CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 38

Citation: 2019 RLLR 38
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2019
Panel: Isis van Loon
Country: Nigeria
RPD Number: VB9-00362
ATIP Number: A-2021-01124
ATIP Pages: 000217-000225

— DECISION

[1]       PRESIDING MEMBER: [XXX], the principal claimant, and [XXX], the minor claimant, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintain the designation of [XXX] as the representative for the minor claimant pursuant to subsection 167(2) of the Act in Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules. When rendering my Reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[2]       The principal claimant alleges that if she returns to Nigeria she will be forced to marry her brother-in-law, who has sexually assaulted her a number of times. The brother-in-law will also take her son and force him to undergo rituals. As well, the claimants are at risk from Fulani herdsmen, who burned down their village in [XXX] 2016, which forced the claimant to live with her missing husband’s family in their village.

[3]       I find that the claimant has established she faces a serious risk of persecution on a Convention ground in Nigeria. My reasons are as follows. I also find the minor claimant faces a serious risk of persecution on a Convention ground.

IDENTITY

[4]       The claimants’ identities and citizenship as nationals of Nigeria was established by the principal claimant’s testimony and supporting documentation filed, including certified true copies of their passports in Exhibit 1.

CREDIBILITY

[5]       The principal claimant testified in a straightforward manner with no inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. I found her to be a credible witness and, therefore, have accepted as generally true the facts that she alleged in support of her claim. Unless I specifically note in my analysis, as I said, I found her generally credible and the minor claimant did not testify.

[6]       The principal claimant provided the following relevant and probative documents in Exhibit 4. There was a Nigerian Police report from [XXX], 2015, reporting her missing husband; a medical report from [XXX], 2017, after a sexual assault, and numerous affidavits from friends and family, all attesting to the treatment by the principal claimant’s brother-in-law, as well as her subsequent actions.  I found those documents were relevant and served to corroborate the principal claimant’s core allegations, in terms of nexus, I found the persecution the principal claimant faces has a nexus to the Convention ground of membership in a particular social group, as a woman at risk of sexual violence and forced marriage. With the minor claimant, there’s a nexus to that of a child at risk of literal abuse.

[7]       In order to be considered a Convention refugee, a claimant has to demonstrate a well-founded fear of persecution, including subjective fear and objective basis for that fear. Based on the testimony, supporting documents and country condition documents, I found the claimants do have a well-founded fear of persecution for the following reasons.

[8]       In terms of subjective fear, the principal claimant initially attempted to resist the forcible advances of her brother-in-law, [XXX]. After a sexual assault by [XXX] on [XXX], 2017, she escaped with the minor claimant to [XXX]. [XXX] located her there within a week, continued to threaten her. With the assistance of her friend, she made arrangements to leave as quickly as possible and did so when they had sufficient funds, arriving in the USA on [XXX], 2017.

[9]       Fearing Trump policies against refugees, she decided to come to Canada, which she did [XXX] of 2017, and claimed asylum. Based on her actions and the timing thereof, as well as her credible testimony, I found the claimants have adduced sufficient credible evidence to establish a subjective fear of persecution in Nigeria.

[10]     The principal claimant testified about the series of events that started with the disappearance of her husband on [XXX], 2015. She reported this to the police and checked in with them, but no progress on the investigation had occurred. When the Fulani burnt her home on [XXX], 2016, she fled to her husband’s village to stay with her in-laws there. In [XXX] of 2016, her brother-in-law [XXX] sexually assaulted her. On [XXX], 2017, the family had a meeting where they decided that tradition should be followed or bad things would happen in their village and to them and this meant that the principal claimant would have to marry her brother-in-law [XXX] as they believed by that time that her husband was deceased.

[11]     She refused to follow this tradition and fled after [XXX] sexually assaulted her with a weapon on [XXX], 2017. Sam located the claimants in [XXX] about a week later and threatened them again that they needed to undergo the ritual and the principal claimant needed to marry him. She testified about the specific ritual that was to be undergone by both her and her son, where they were to be cut and marked in various areas and have cow’s blood and other things rubbed into these during an event that would take about three days.

[12]     She also spoke of [XXX] (phonetic), a woman from her husband’s village that she knew. She met her after she got married and a similar type of thing happened. Her husband went missing at the hands of the Boko Haram or the Fulani herdsmen and, according to tradition, the people would force the woman to marry the husband’s brother. This woman, however, [XXX], she refused and she was killed when she refused to marry the brother by the brother. This was in 2014 and apparently she knew that [XXX] had gone to the police and the police said that they couldn’t do anything and said it was just a family matter. In effect, the country documentation confirms that these traditional things are often treated as a family-related incident and the police tend not to get involved. The country documentation evidence also confirms that sexual violence against women is common and that ritual activities continue. Based on all the evidence before me, I found the claimants would face a serious possibility of persecution if the were to return to Nigeria and be found by [XXX].

[13]     In terms of state protection, except in situations where a state is in complete breakdown, states must be presumed capable of protecting their citizens. I found, however, that adequate state protection would not be reasonably forthcoming in this particular case. The principal claimant described how she had not reported the sexual assaults by [XXX] as she was afraid the same thing would happen to her as happened to Nagosi and she described how [XXX] actually threatened to kill her if she did report to police.

[14]     There are a number of laws that exist to protect women against violence and these have been strengthened by the Violence Against Persons Prohibition Act in 2016. However, they are not effectively implemented in practice and are quite variable. There is no comprehensive law for combatting violence against women and, as a result, victims and survivors had little or no recourse to justice, according to the NDP 2.1. Police response is often poor and despite the existence of some laws, the persecution rates for domestic violence are low. It’s uncommon for cases to reach persecution. The burden of proof is on the victim according to NDP 5.3. Additionally, there are few shelters and restraining orders provide minimal, if any, protection in practice.

[15]     In a Response to Information Request from the IRB, a doctoral candidate states about victims of ritual practices that to his knowledge the police response is not recognized and institutionalized. He further stated that based on his direct observation and research experience over five years in Southern Nigeria, that Nigerian police officers tend to be discriminatory in their treatment of victims of ritual practices, particularly for women, and that this attitude is formed by customary norms and the subjugation of women in most Southern Nigerian societies.

[16]     The same source added that a lack of trust in the police also inhibits the reporting of ritual practices, especially by women. Furthermore, according to this source, police officers are themselves often a part of the culture in which ritual practices take place and they can have difficulty recognizing whether ritual practices are criminal or not and they weigh the evidence also against the religion rights and intent of the ritual practices.

[17]     Similarly, another source noted that because Nigerian police officers themselves come from communities where different rituals apply, they have to respect the culture and traditions and they’re reluctant to provide protection to someone who is refusing to undergo a ritual. So I find that in terms of both the sexual violence and the traditional and ritual aspects of this that state protection would not be adequate nor reasonably forthcoming for the claimants in this case and, therefore, the presumption of state protection is rebutted.

[18]     At the beginning of the hearing, I proposed several cities as internal flight alternatives, Benin City, Port Harcourt or Abuja. The principal claimant testified that there are family members of her in-laws in both Port Harcourt and Abuja, so I primarily focused from then on, on Benin City. An internal flight alternative arises when a claimant, who otherwise meets all the elements of the definition of a person in need or protection or as a Convention refugee in their home area of the country, nevertheless is not in need of protection because they would live safely elsewhere in that country.

[19]     There is a legal test, which has two prove to be satisfied that the claimants would not face a serious possibility of persecution in the part of the country in which I found an IFA exists and conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants, for them to seek refuge there.

[20]     If either prong of the internal flight alternative test fails, then there is no viable internal flight alternative. I’ve started, in fact, with the second prong about whether or not the proposed IFAs are reasonable. At the beginning of the hearing I proposed, as I said, Port Harcourt, Abuja and Benin City, but primarily focused on Benin City. Having found the claimants face a serious possibility of persecution from the agent of harm, I have turned to the second prong of the IFA test, the test used in Canadian refugee jurisprudence, to assess whether a claimant could travel to and remain in a safer area of their countries, whether it would be unduly harsh to expect the claimant to do so. There’s a very high threshold for this unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling to or relocating to a safe area and it requires actual and concrete evidence of such conditions.

[21]     I’ve considered whether it would be reasonable to expect the claimants to travel to and relocate in any of the proposed IFAs. An IFA has to be realistically accessible. If a claimant would encounter physical danger travelling there, if they would encounter persecution while en route or they would otherwise be barred from travelling to an area then an IFA location would not be viable. However, the Nigerian Constitution provides for the right to travel within Nigeria. The country condition documents show that Nigerians, including women, can and do move freely throughout most of the country, including the IFA proposed cities.

[22]     With respect to the burden of proof, the Court of Appeal in Rasaratnam (phonetic) has held that once an IFA is raised, the onus is on the claimant to show that they don’t have one. The burden, as I said, is fairly high in order to show that an IFA is unreasonable. In fact, the Federal Court of Appeal stated that to show an IFA is unreasonable requires nothing less than the existence of conditions jeopardizing the life and safety of a claimant in relocating to that place.

[23]     The Chairperson identified the Refugee Appeal Division decision for TB7-19851 as a jurisprudential guide. I’ve considered this guide and the decision of the Refugee Appeal Division in which the jurisprudential guide in question is based analyzes the viability of an internal flight location within Nigeria for single women. That concludes more broadly than internal relocation and Nigeria is generally considered to be viable for refugee claimants fearing non-state actors. In this case, the RAD decision established there are several large multilingual, multi-ethnic cities in South and Central Nigeria which include the IFAs mentioned, where persons fleeing non-state actors may be safely able to establish themselves, depending upon their particular circumstances.

[24]     There’s a non-exhaustive list of factors that may be considered in determining whether the conditions in an IFA render it objectively unreasonable for the claimant. These factors are travel, transportation, language, education, employment, accommodation, healthcare, culture, (indiscernible) and religion. Additionally, the Chairperson’s Gender Guidelines specifically instruct decision makers to consider whether and how these factors affect women in the IFA.

[25]     The cm before me is both a single woman and the mother of a young son, so she’s a single mother, unlike the single woman who had no children in the jurisprudential guide case. The principal claimant has some post secondary education, but in this case her work experience is quite limited. She worked partly while as a student and then on her husband’s farm after she was married. So she does have some experience in farming.

[26]     The principal claimant testified, and the country documents support this, there are real difficulties for women in obtaining employment and housing and that this is exacerbated when a woman does not have family assistance and support. Family can help members to find housing, as well as work. In Nigeria, women need adult male members of family or other males to provide references and sign for them, particularly with respect to housing. Usually this is done by male family members.  The claimant herself stated that if she had family in the IFA she could rely upon them to care for her son, if she was able to find work, and that she would need to support herself and her son. Her family has to date refused to support her and, in fact, advised her to follow the traditional practices that her brother-in-law has been demanding.

[27]     She initially fled to [XXX] to stay with her sister, but her sister turned her out. So her family has told her to follow traditional practices, marry [XXX] and undergo the ritual that will ensure her husband’s ghost did not return to haunt the family. I’m satisfied, on a balance of probabilities, that these claimants have no family support in Nigeria and this will negatively impact their ability to find housing and employment, as well as assisting with childcare.

[28]     According to the jurisprudential guide, unemployment is generally high in Nigeria and work can be difficult to find. There are more female-headed households in the south than in the north and it is generally easier for women to obtain work in the south than in the north but, quite frankly, this is not saying a lot and it certainly doesn’t say that it is easy for women to find work. The J.G. says that where a claimant has achieved post secondary education or has meaningful work experience, they may be in a better position of securing employment than the average Nigerian.

[29]     This claimant does have some post secondary education, but her Nigerian work experience is limited to farming and some past office work that she did as a student. Additionally, she has a young child, the minor claimant, in her care, and without family or contacts, she would have to find a way to ensure safe childcare while she worked if she was able to find work. She has no connections in the IFAs. She speaks a different dialect from the locals and she would face great difficulty in finding employment, which is sometimes based on indigeneship or family connections. The J.G. states that in order for a single woman to get a reasonable job in — they were talking about Port Harcourt or Ibadan in that case, or presumably other large cities, she would need to have the help of someone influential or rich and also that it is easier for single women with high education and high social status to use this status to give them access to people who are in power who could assist her to find work. I’m satisfied that the principal claimant, as a single mother, albeit with some degree of education, but with limited work experience and with no high status standing and, therefore, no connections that that would bring, she would face extreme difficulty in finding work.

[30]     The NDP 5.9 shows that it can be difficult for women to find housing, in part due to the cost and in part if they do not have male assistance. While the north of the country is once again even worse, the south is still very difficult for women. In particular, the ability to find gainful employment, according to NDP 13.1, is a key factor in finding housing. I’ve already discussed my views on the difficulty this claimant faces in finding employment and I am satisfied that without work she would have great difficulty in supporting herself and her son in terms of housing, as well as food and other necessary item and the Nigerian state has little to no social supports available to assist her.

[31]     The claimant stated the indigeneship would be a factor, making it difficult to relocate. The documents show that this is less of an issue in large cities, such as Benin City. However, there are difficulties for those who are not indigenes. The EASO states that indigenicity facilitates settling in a given area.  However, it does not constitute a requirement. This document notes that non-indigenes, such as the claimants, without familial connections or financial means, may find relocation more difficult. The claimant also testified that language would be an issue as she does not speak local dialects. While she does speak some English and, in fact, testified occasionally in English during the hearing, I am still cognizant that despite English being an official language of Nigeria, her inability to speak the local dialects would also put her at a disadvantage among those who do not speak English and who might potentially assist her with housing or employment.

[32]     The claimant also testified that single mothers are frequently discriminated against and seen as sexually available, which leads them to experience high levels of sexual violence and sexual harassment. She said this was both through work and potentially with landlords. The country documents show that women in general and single women or women heading households do indeed experience high levels of this mistreatment, particularly when there are no family members, most likely male family members, to protect them. I accept as a single mother that the claimant would be more vulnerable to gender-based mistreatment than would a woman who was supported with or by a adult male and family.

[33]     In terms of religion, the country evidence shows that Christianity is widespread in Nigeria, particularly in the south, and thus I don’t find religion, in itself, to be a barrier to relocation. A recent Response to Information Request said that sometimes religious communities can assist in the process of resettlement in some of the similar cities to Port Harcourt, Lagos and Abuja. While religious community may, in fact, be helpful despite the principal claimant’s belief that it would be largely limited to the occasional donation of food, I’m not satisfied that we can rely on religious assistance to be sufficient to overcome the more serious impediments to the claimants in resettling that I have already mentioned with respect to lack of family support, housing and extreme difficulties in obtaining employment.

[34]     Finally, I further note that the principal claimant testified of having an anxiety attack which necessitated a 911 intervention here in Canada. Her demeanour during the hearing clearly demonstrated emotional fragility and she broke down several times during the hearing, necessitating time to compose herself in order to continue. Her emotional state is supported by a psychological assessment in which she was diagnosed with [XXX] and [XXX] in [XXX] of 2029. That’s Exhibit 4, pages 35 to 40. She has attended counselling as a psychologist recommended, based on their assessment and she said that she plans to continue.

[35]     Based on the psychologist’s findings, they concluded that, based on her trauma-related conditions with which they diagnosed her, it would impair her recovery if she had to return to Nigeria where she is convinced that [XXX] would find and harm her and the minor claimant. There are facilities for both basic medical and mental healthcare according to NDP 1.9. The country condition documents though show that Nigerians have to pay for healthcare, as well as education, and that access can be difficult for this reason. For a single mother with many impediments to finding access to money such as employment, I’m satisfied that she would face significant difficulties in accessing mental healthcare if she wished to continue treatment in Nigeria as well.

[36]     The claimant testified there would be difficulties with education for her child and that she would be unable to pay fees if she was not employed as the country condition document I’ve just referenced shows that education comes with costs and concerns that the minor claimant would be negatively impacted with respect to his basic education.  Having considered the conditions in the internal flight alternatives, particularly Benin City, and all the circumstances of this case, including those particular to the claimants, I find that the claimants have established on a balance of probabilities that it would be objectively unreasonable or result in undue hardship as those terms are understood in Canadian refugee law for them to seek refuge in the proposed IFAs of Benin City, Port Harcourt or Abuja.

[37]     Based on the totality of the evidence, I’ve concluded the claimants are Convention refugees and accordingly, I have accepted their claims.

— DECISION CONCLUDED

Categories
All Countries Mexico

2019 RLLR 37

Citation: 2019 RLLR 37
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2019
Panel: David Jones
Country: Mexico
RPD Number: VB8-06002
ATIP Number: A-2021-01124
ATIP Pages: 000210-000216

— DECISION COMMENCED

[1]       PRESIDING MEMBER: I have considered your testimony and the other evidence in this case and I am ready to render my decision for your claims. This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claims of the principal claimant, namely [XXX] and her minor son [XXX] and the associate claimant, her common-law spouse,  [XXX], who are citizens of Mexico who are seeking refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The principal claimant was appointed as the designated representative of the  minor claimant. I have also reviewed and applied the Chairperson’s guideline on women refugee claimants fearing gender-related persecution.

ALLEGATIONS

[3]       The specifics of the claims are set out in the narrative of the basis of claim forms. In summary, the claimants fear further abuse from the principal claimant’s ex-husband, namely [XXX], who is also the father of the minor claimant.

[4]       The claimants allege that in October 2009 the principal claimant met [XXX]. In [XXX] 2010 the principal claimant found out she was pregnant and decided to get married. During the pregnancy [XXX] started controlling and becoming abusive towards the claimant. On [XXX], 2011 the principal claimant married [XXX] and days after the marriage the abuse got worse.

[5]       I am not going to list all the incidents that the claimant testified to and described in the narrative attached to the basis of claim forms, but I will note that the incidents occurred in Mexico and involved verbal, physical, emotional and sexual abuse. The minor claimant witnessed some of the abuse, and at least in one instance involving [XXX] violently shaking the child. An incident on [XXX], 2014, led to the principal claimant deciding to move out with help from her family. The principal claimant also filed a police report but the response from the authorities was that they expected a husband and wife to solve their own problems.

[6]       [XXX] filed for divorce in [XXX] 2014 and shortly after, the divorce was granted. The principal claimant was awarded custody and [XXX] retained his parental rights. At the end of 2014 [XXX] started dating someone else and the principal claimant barely heard from him for two years. In late 2016 the adult claimants reconnected after they knew each other from junior high school and eventually moved in together. In [XXX] 2016 [XXX] found out about the new relationship and he threatened the principal claimant that he would break them up.

[7]       On [XXX], 2017, the principal claimant went to the U.S. to work to raise money and her sons stayed with her mother. [XXX] started threatening to report the principal claimant to U.S. authorities and to take away their son so the principal claimant decided to return to Mexico. On [XXX], 2017, [XXX] asked for a visit with their son, which the principal claimant allowed. When the principal claimant went to pick up her son [XXX] yelled and physically assaulted the principal claimant and violently shook the minor claimant. [XXX] was angry that the claimants were living together.

[8]       The principal claimant called the police and left with their son and filed a police report. The police again said that they should resolve their problems themselves.

[9]       The associate claimant has also been threatened seven or eight times and has been physically assaulted by [XXX]. For example, on [XXX], 2017, around [XXX]. the associate claimant was approached by [XXX], who yelled things such as, “Leave my wife alone,” and threatened the associate claimant if he did not stop seeing the principal claimant. During this incident [XXX] punched the associate claimant in the stomach, winding him, and then left.

[10]     In early 2018 the associate claimant finished his architectural program and to celebrate his parents paid for him to travel to Canada. While the associate claimant was in Canada [XXX] continued to harass the principal claimant, including at her workplace. On [XXX], 2018, the joint claimant’s family paid for the principal claimant and her son to travel to Canada as well to join the associate claimant.

[11]     Since the claimants have been in Canada [XXX] has continued to try and locate the principal claimant through her family. In the past few months the principal claimant’s brother, aunt and two cousins have all been contacted by [XXX] in his attempts to locate the claimants. [XXX] also started a court action in Mexico regarding custody of the child. The claimants believe through that action, amongst other ways such as through [XXX] wealthy family, [XXX] is able to locate the claimants anywhere in Mexico.

[12]     On [XXX], 2019, the adult claimants were married and the principal claimant is currently seven months pregnant.

DETERMINATION

[13]     I find that the claimants are Convention refugees pursuant to s. 96.

ANALYSIS

Identity

[14]     The claimants’ identities as citizens of Mexico have been established by the Mexican passports located at Exhibit 1.

Nexus

[15]     The allegations support a nexus to a Convention ground for the principal claimant based on her membership in a particular social group as a woman. The allegations further support a nexus to a Convention ground for the associate claimant and minor claimant based on their membership in a particular social group as members of the principal claimant’s family.

Credibility

[16]     I find on a balance of probabilities that the principal claimant has been the victim of domestic violence, as has the minor child who witnessed the abuse and in at least one instance was violently shaken by his father. In making that finding I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness.

[17]     In this regard the claimants testified in a consistent and straightforward manner that was consistent with their basis of claim forms and supporting documents. There were no relevant inconsistencies in the testimony or contradictions between the testimony and other evidence. I find that the claimants are credible witnesses.

[18]     The claimants also provided documents to support their claims. For example, documents found at Exhibit relate to reports to the police of domestic violence toward the principal claimant and the minor claimant. I have no reason to doubt the genuineness of these documents, and since they relate to the alleged domestic abuse, I place significant weight on these documents to support the allegations and overall claims.

[19]     I find that [XXX] has threatened the associate claimant and abused the minor claimant due to those claimants being a part of the principal claimant’s family. [XXX] threatened the associate claimant by saying: Get away from [XXX].

[20]     And: I am going to kill you.

[21]     Aside from witnessing the abuse of his mother the minor claimant was also violently shaken by [XXX] when [XXX] was abusing the principal claimant. There is no evidence that [XXX] ever threatened or abused the associate claimant or the minor claimant when he was not related to the principal claimant. As such, I find that the harm toward the associate claimant and the minor claimant are an extension of [XXX] abusive behaviour towards the principal claimant.

[22]     I find that the claimants have established on a balance of probabilities the facts that they have alleged in their claim. The claimants testified that they fear being persecuted because [XXX] will locate and continue to harm them if they were to return to Mexico.

Objective Basis

[23]     The objective basis supports the claimant’s fear of returning to Mexico. Domestic violence continues to be prevalent in Mexico. Numerous reports in the national documentation package found at Exhibit 3 indicate that domestic violence is prevalent in Mexico. For example, NDP items 5.10 state that:

… violence against women in Mexico is a “pandemic.”

[24]     The report goes on to note that 63 percent of women in Mexico have suffered abuse by men, and that most of the violence is at the hands of their partners.

[25]     While the objective evidence indicates that the Mexican government has attempted to enact legislation and policies to reduce the violence faced by women, as noted in NDP 5.2, violence against women continues to be a widespread problem. This is also indicated in the U.S. State report for Mexico at NDP item 2.1. that states:

State and municipal laws addressing domestic violence largely failed to meet the required federal standards and often were unenforced.

[26]     Based on the totality of the evidence before me I find that the claimants have established a well-founded fear of persecution if they were to return to Mexico. I further find that the principal claimant’s testimony regarding her ex-husband demonstrates that he has a continuing interest in locating and harming the principal claimant and her family, and therefore they have established a serious forward-looking risk if they were to return to Mexico.

State Protection

[27]     With respect to domestic violence the objective evidence as noted above supports the claimants’ testimony that there is no operationally-effective state protection available to them in their particular circumstances. Numerous items in the NDP indicate the challenges facing Mexico regarding state protection against crime generally. For example, NDP item 7.18 notes that Mexico has an extremely low rate of prosecution for all forms of crime. Prosecutions can take years to complete and that crime is unreported due to the generalized mistrust in authorities.

[28]     Additional information in the NDP item 2.1 regarding violence against women indicate that while:

There were justice centres that provided services, including legal services and protection. However, the number of cases far surpass institution capacity.

[29]     NDP item 5.10 states that:

…violence against women are not properly investigated, adjudicated or sanctioned.

[30]     This report goes on to state that:

… police, do not perform their duties adequately, treating domestic violence as though this was the ‘normal’ state of affairs.”

[31]     I note that this is the response the principal claimant received both times she tried to report violence against her to the police. Based on the evidence I find there is no operationally- effective state protection available to the claimants in their circumstances. As such, the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

[32]     For the reasons below I find the claimants do not have an internal flight alternative. When determining whether an internal flight alternative is available in Mexico, I must find both that a claimant would not be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual treatment or punishment or face a serious possibility of persecution in the proposed internal flight alternative, and two, the conditions in that part of the country are such at it would be objectively reasonable in all the circumstances including those particular to the claimant for them to seek refuge there.

[33]     The burden placed on claimants is fairly high in order to show that an internal flight alternative is unreasonable. It requires nothing less than the existence of conditions that would jeopardize their life and safety if they relocated to the internal flight alternative. Actual and concrete evidence of adverse conditions is required. The objective evidence supports finding a serious possibility of persecution would exist for the claimants throughout Mexico.

[34]     In a response to information request at NDP item 5.9 on the right of a parent to know the location of their child when a spouse relocates within Mexico indicates that a parent who has parental authority but who does not live with the child has the legal right to know the child’s address and telephone number. The report further indicates that parental authority is automatically granted to both parents, but family judges can order that a parent loses that right.

[35]     With respect to the minor child the ex-husband retained his parental rights in the order granting the divorce and there has been no further orders with respect to parental authority. As such, the ex-husband would have the right to apply through the courts to obtain the child’s address. I find that the ex-husband’s history of behaviour indicates he has a continuing motivation, and given his parental authority, he also has the means to use the Mexican legal system to be able to track the principal claimant throughout Mexico.

[36]     Based on the totality of the evidence I find the claimants have established that there is no viable internal flight alternative available to them. I find that the claimants would face a serious possibility of persecution throughout Mexico given that the ex-husband has shown a history of continuing to abuse the claimants and his ability to use the Mexican state to assist in locating them.

CONCLUSION

[37]     For the reasons above I determine that the claimants are Convention refugees pursuant to s. 96 of the Act, given they have established that they would face a serious possibility of persecution and the Board therefore accepts their claims.

[38]     Given I am granting protection under s. 96 of the Act, I find it unnecessary to consider their claims under s. 97.

— DECISION CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 36

Citation: 2019 RLLR 36
Tribunal: Refugee Protection Division
Date of Decision: January 22, 2019
Panel: Michal Fox
Country: Nigeria
RPD Number: VB8-04811
ATIP Number: A-2021-01124
ATIP Pages: 000203-000209

[1]       PRESIDING MEMBER: [XXX], [XXX], and [XXX] claim to be citizens of Nigeria and the United States. You claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       At the hearing the claimant was appointed the designative representative to the minor claimants, [XXX] and [XXX].

Allegations from the Basis of Claim forms, Exhibits 2.1 and 2.2

[3]       The claimant, [XXX] is a citizen of Nigeria. The claimant is Yoruba and is from the western part of Nigeria, from [XXX] (ph). The claimant is a devout Jehovah’s Witness. She attends the Kingdom Hall two times a week and preaches as well.

[4]       The claimant is the mother of the minor claimants, [XXX] and [XXX]. [XXX] is a citizen of Nigeria, being born there on [XXX], 2013. The minor claimant [XXX] is a US citizen, born in the United States on [XXX], 2017.

[5]       The claimant’s mother and father were from [XXX] – state, Nigeria. On [XXX] 2012 the claimant married her husband, [XXX]. He’s from Delta State and he is [XXX] by ethnicity.

[6]       The claimant’s family were quite hostile to the claimant. They were against this inter-tribal union and the claimant became a Jehovah’s Witness. She wasn’t born into that religion and the husband’s family rejected not only her but that their son and brother became Jehovah’s Witness as well before he married the claimant.

[7]       The claimant’s Ogun state ethnicity being Yoruba but mostly her religion is the main reason of their hatred toward her. On several occasions the claimant was attacked and beaten by the claimant’s family so that she would get away from her husband. Her husband’s sister threatened to kill her if she didn’t step away from the marriage and it is because of this that she developed psychological problems.

[8]       In [XXX] 2015, she had a heated confrontation with a sister-in-law and thereafter miscarried at ten weeks of pregnancy.

[9]       The claimant was verbally attacked so many times that she would go to her parents’ home in Ogun state for refuge. One time was in [XXX], 2017. Her husband’s family followed her there and set the house ablaze. Her room was set on fire and all of her personal documents were burned. The claimant’s family went to the police but they refused to get involved.

[10]     The claimant herself was born in to a different Christian religion or sect called Church of Christ Family and her own family rejected her for becoming Jehovah’s Witness. They turned against her. They burned her clothes. They burned her religious publications and study materials. She was beaten, denied access to food and locked out for attending Christian meetings.

[11]     Her father showed up at the Kingdom Hall and embarrassed her. Her father threatened to burn down the Kingdom Hall if the claimant did not leave there and he threatened to disown her for being part of the Jehovah’s Witness community.

[12]     She was forced out of her home and the elders of the church had to take her in. The claimant supported herself without her family’s support when she went for higher education.

[13]     Many occasions when the claimant’s husband and herself were going for the door to door ministry, his family members would mock them and throw rocks at them and yell insults. They became fearful that there were people going to kill them because of their religious beliefs.

[14]     The claimants left Nigeria, came to United States, where the minor claimant was born. The claimants thereafter came to Canada and applied for refugee protection.

For the claim of the minor claimant [XXX]

Determination

[15]     I find that the claimant is not a Convention refugee in that she does not have a well-established fear of persecution for a Convention ground in Nigeria. I also find that the claimant is not a person in need of protection in that her removal to Nigeria would not subject her personally to a risk to her life or to a risk of cruel and unusual treatment or punishment and in that there are no substantial grounds to believe that her removal to Nigeria will subject her personally to a danger of torture.

Analysis

[16]     The minor claimant is a citizen of United States. See Exhibit 1, her US birth certificate. As well, the claimant averred in Basis of Claim form that the minor claimant is a citizen of the United States.

[17]     At the hearing, in consultation with the claimant, who is the minor claimant’s designated representative, counsel stated that the claimant has no claim per section 96 and 97 against the United States.

Conclusion

[18]     For the foregoing reasons, I conclude that the minor claimant [XXX] is not a Convention refugee and not a person in need of protection and I therefore reject her claim.

The claims of [XXX]

Determination

[19]     I find that you are Convention refugees and that you do have a well-founded fear of persecution in Nigeria by reason of religion and race or ethnicity for the following reasons.

Analysis

[20]     Your identities as nationals of Nigeria are established by your testimony and supporting documentation filed, namely your Nigerian passports found in Exhibit 1.

[21]     I have found you to be a credible witness and I therefore believe what you have alleged in support of your claim. You testified in a straightforward manner and you corroborated your case with extensive documentary evidence, found in Exhibits 4 through 10.

[22]     I find your fears to be well-founded for the following reasons.

[23]     You have been attacked and even had part of your house burned down by family members due to you and your husband’s conversion to be Jehovah’s Witnesses over the years and also because of your husband’s family rejecting you due to your tribe being Yoruba while they are Osoko – O-S-O-K-O.

[24]     You’ve had stones thrown at you and at your husband when you were preaching your religion to others.  You’ve been threatened with death and abused verbally countless times. You also had a miscarriage due to the violence perpetrated against you for these very reasons and you still grieve this child to this day.

[25]     There is clear and convincing evidence before me that the state is unable or unwilling to protect you.

[26]     You filed police complaints on two times, see Exhibit 6 at page 3 and 4, and Exhibit 5 at page 16 and 18. Even neighbours filed police diary notices based on – to the police – about what they saw. Even when the agents of harm had been identified the police did nothing to investigate or take action.  It would be futile to expect protection in the future when the police, with the full evidence from even your neighbours, about who the agents of harm are, failed to take any action whatsoever in your case.

[27]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that you would not be at risk in Port Harcourt. The claimants fear family members who reside in Delta, Lagos and Ogun state. She fears no one in Port Harcourt. The jurisprudential guide addressed this issue in decision TB7-19581. It states that those who fear non-state actors who have a viable internal flight alternative under such facts.

[28]     The claimant has no family members in Port Harcourt as well. She fears that perhaps family members of her husband would show up or visit Port Harcourt as Delta state is right next door, an hour away. I find that her evidence is speculative that such a risk of harm would take place. I thus find there’s no serious possibility of persecution in Port Harcourt.

[29]     However, on the evidence before me I find that it is objectively unreasonable in all the circumstance, including those particular to the claimants, for the claimants to seek refuge in Port Harcourt for the following reasons.

[30]     Psychological evidence is central to the question of whether an internal flight alternative is reasonable and cannot be disregarded. See the case of Cartaga — C-A-R-T-A-G-A – v. Canada, 208.FC.289.   In this case, the court noted that in considering whether internalflight alternative was unreasonable, the Board must take into account a claimant’s fragilepsychological state. See also Okafar v. Canada — O-K-A-F-O-R – 2011.FCl.002 andmore recently Kayhonini v. Canada-K-A-Y-H-O-N-I-N-I-2018.SC.1300.

[31]     In this case the claimant has a long history of mental health issues that only arose in her life after she converted to be a Jehovah’s Witness.  The psychological stress of losing her own family in this conversion compounded with the persecution she faced by her own family and her husband’s family, induced depression and psychosomatic illnesses since about 2013.

[32]     She’s been hospitalized for this in Nigeria. She received psychotherapy and has been medicated for her psychological condition since that time. The claimant continues to receive treatment here for these conditions. See Exhibit 4, page 10.

[33]     The [XXX] hospital in [XXX], in Exhibit 5 at page 4, specifically refers to when the claimant was hospitalized there for a week to address her psychological conditions that this was caused by the family violence towards here.

[34]     The report states that the violence perpetrated against the claimant by her in-laws on account of her religion and different ethnicity caused her poor sleep, headaches, weeping spells and low mood. The claimant was placed on anti-depressants. She deteriorated medically despite these interventions and had to change medications.

[35]     Even here in Canada, Exhibit 9, the claimant’s physician stated that her medical concerns today include depression and migraine type headaches, which were both pre-existing conditions diagnosed in Africa. The claimant is on various medications and to this day meets with her doctor every two to three months.

[36]     The claimant testified that because of all of her fears which started due the persecution she faced in Nigeria and with all of her worries and being rejected by everyone in her world, she would have epileptic attacks all over her body. Here in Canada she still has this condition but it is manageable with medication and ongoing assessment by her physician.

[37]     The claimant stated that with fears about Nigeria, she will be debilitated. She fears that she will run into someone from her family and they will tell others and that she will be attacked. With such a condition she would not be able to hold a job because she would miss more work because of her fears.

[38]     She had at times stopped working in Nigeria due to her – due to the physical condition that she suffered which was psychological in nature. The claimant also stated that she won’t be able to parent the minor claimant and her other child because she’d become so debilitated due to fear.

[39]     The claimant stated that with her fears that she is not safe in Nigeria, in Port Harcourt, just with those fears her psychosomatic symptoms will debilitate her and this is exasperated because of the claimant’s religion.

[40]     The claimant’s religion as Jehovah’s Witness requires her to go out as much as possible and spread the word. Jehovah’s Witness goes out every week, almost two days a week and weekends here in Canada, knocking on doors on strangers’ homes in unknown areas that are designated by her church. This would be the same, she did this also in Lagos, she did this in Ogun state, she did this in the United States. She would also have to do this – she would also want to do this and is required to do so in Port Harcourt.

[41]     She takes her children with her when she witnesses. This is essential to her religion. And that’s every week. If she were to return to Port Harcourt in Nigeria she would go into new areas, much more than other people do, knocking on doors, worrying that she will see someone on this street or that street who might know someone in her family, who might be visiting because of the closeness of Delta state and just this fear that she’ll be harmed once again, the claimant would psychologically fall apart.

[42]     The claimant has a chronic condition. It’s only ameliorated here but it’s not disappeared, even with medication and ongoing assistance and psychotherapy.

[43]     I find that due to the chronic nature of the claimant’s psychological condition just worrying about her situation and in conjunction with the way that she practices her religion, which is protected by a Convention ground, that she would be in a constant state of fright and dysfunction based on that she would be witnessing on average two times a week and sometimes even more if she were to return to Nigeria.

[44]     Even here she says, where she can witness freely, she still has her condition. In Nigeria it would be complete debilitation. The claimant said that she would be terrified, hyper-vigilant at all times, worrying. The claimant has suffered persecution in the past and that harm she carries with her emotionally and psychologically and physically.

[45]     Similarly, the internal flight alternative is unreasonable for the minor claimant as his mother will not be able to parent him. She will be recurrently disabled physically due to her psychosomatic illnesses and depression that have already caused her to be hospitalized, to lose work. She will not be able to support her child and take care of him when she is in so much pain herself. That pain will only be increased if she’s returned to Nigeria.

Conclusion

[46]     For the foregoing analysis, I conclude that the claimant [XXX] and [XXX] are Convention refugees and I therefore accept their claims.

[47]     That is the end of my decision.

—PROCEEDINGS CONCLUDED