Category: All Countries

2019 RLLR 54

Citation: 2019 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2019
Panel: Roslyn Ahara
Counsel for the claimant(s): Penny Yektaeian Guetter
Country: El Salvador
RPD Number: TB8-00970
ATIP Number: A-2020-01274
ATIP Pages: 000100-000103

DECISION

On October 21, 2019 the Refugee Protection Division (RPD) heard the claim of [XXX], who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[1] MEMBER: [XXX], is a citizen of El Salvador seeking refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act (IRPA).¹

[2] Your allegations are described in detail in your Basis of Claim Form (BOC);² however, they can be summarized as follows:

[3] You fear persecution at the hands of the Mara Salvatrucha (MS-13), and you believe that this gang caused the disappearance of your brother in [XXX] 2013. Personally, you believe that you have been threatened if you did not transport drugs on their behalf, and you felt this threat was real, given the fate of your brother.

[4] You left El Salvador on or about [XXX], 2014, for the United States. You were detained, and made a refugee claim, which was denied, and subsequently the appeal was also denied.

[5] You have indicated in your testimony today that you were extorted, on a regular basis, approximately six months following the disappearance of your brother in [XXX] 2013.

[6] Finally, on [XXX], 2014, six to seven members of the MS-13 approached you and asked you to transport drugs inside the [XXX] that you were repairing, and when you refused, they immediately punched and kicked you. In your oral testimony today, you also stated that they threatened that you would suffer the same fate as your brother if you did not comply with their demands.

[7] At the outset of this hearing, I identified the issues of credibility, generalized risk and state protection. Counsel conceded that there was no nexus.

[8] On a balance of probabilities, I find that your identity has been established as per your passport.³ In considering your credibility, I did not find any glaring omission or contradictions between your testimony and the evidence contained in your record. I did not find that you attempted to embellish the merits of your claim. In totality, I found you to be a credible witness.

[9] As I indicated earlier, counsel conceded the issue of nexus. There is much case law in this regard, in terms of criminality by gangs, and the country documentary evidence states that the MS-13 are engaged in economically motivated crimes involving extortion, kidnapping, recruitment of youths to aid their cause. There are a number of cases which support the lack of nexus, but since your counsel has conceded this issue, I will go on to consider the issue of generalized risk.

[10] In examining generalized risk in this particular case, I must look at whether or not there have been consequences as a result of the initial threats, because extortion on its own would be a generalized risk. I must also look at what factors may move your claim from the category of generalized risk into a personalized risk, in other words as it relates to you.

[11] You have provided much documentation with respect to what happened in El Salvador, with respect to your brother and your father’s attempt to locate him. Therefore, the motive has been established. As I indicated earlier, it began as extortion, and then the precipitating event which led to your departure was a demand for you to transport drugs.

[12] This may also be the modus operandi of the MS-13 gang. Given the documentation that you have submitted, I concur that this may well be tied to, and certainly indicates that if you did not comply with the perpetrators’ demands, you could meet the same fate as your brother. Therefore, I find that this event removes you from the generalized risk category, into a personalized risk, because of this consequential and heightened risk.

[13] The objective evidence is extensive in the National Documentation Package (NDP).⁴ The MS-13 and the 18th Street Gang (Barrio 18) are violent, armed street gangs involved in drug sales, extortion, arms trafficking, murder for hire, carjacking, and aggravated street crime.

[14] A report by the International Crisis Group indicates that: “The [MS-13] are both victims of extreme social inequality and the perpetrators of brutal acts of violence.”⁵

[15] The murders in El Salvador among the world’s highest rates of homicide,⁶ the incidents include confrontation with the police, rivalries, score settling, or intimidation carried out by the two outstanding Mara organizations: MS-13 and the Barrio 18.

[16] I am satisfied that the objective evidence confirms and supports the subjective basis of your fear that you are at risk of harm or death if returned to El Salvador.

[17] In terms of state protection, you have indicated in your oral testimony about the corruption and the police presence within these gangs. The Immigration and Refugee Board’s NDP indicates that the El Salvadorian authorities are not effective in combating crime.⁷

[18] According to the documentary evidence, there have been serious concerns about corruption within the police and judicial systems.⁸ Therefore, the presumption of state protection is rebutted.

[19] The United States Department of State’s “El Salvador 2018 Human Rights Report” indicates that: “impunity persisted despite government steps to dismiss and prosecute some [officials] in the security forces, executive branch, and justice system… “⁹

[20] The International Crisis Group also indicates that “[c]orruption is prevalent in Salvadoran judicial and security institutions…”¹⁰

[21] Consequently, I conclude that state protection is not adequate.

[22] Although, not placing the issue of an internal flight alternative (IFA) on the table, in light of the fact that El Salvador is a small country and the Mara Salvatrucha groups operate throughout El Salvador, I do not find a viable IFA in the particular circumstances of your claim.

[23] I consider that while the average El Salvadorian could be affected by gang related crime, I find that you and your family were singled out.

[24] Accordingly, for the foregoing reasons, I find that you are a person in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act, and accordingly your claim is accepted.¹¹

———- REASONS CONCLUDED———-

¹ The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended [IRPA], sections 96 and 97(1).
² Exhibit 2, Basis of Claim Form (BOC), received January 29, 2018.
³ Exhibit 1, Package of information from the referring CBSA/IRCC, received January 29, 2018.
⁴ Exhibit 4, National Document Package (NDP) for El Salvador (September 30, 2019).
⁵ Ibid., item 7.8.
⁶ Ibid., item 9.2.
⁷ Ibid., item 7.6.
⁸ Ibid., item 9.2.
⁹ Ibid., item 2.1, Executive Summary.
¹⁰ Ibid., item 9.2.
¹¹ IRPA, supra, footnote 1, section 97(1).

All Countries India

2019 RLLR 53

Citation: 2019 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2019
Panel: S. Seevaratnam
Counsel for the claimant(s): Ian D. Hamilton
Country: India
RPD Number: TB7-25565
Associated RPD Number(s): TB7-25583
ATIP Number: A-2020-01274
ATIP Pages: 000089-000099

REASONS FOR DECISION

[1] The claimants [XXX] and her minor son, [XXX], claim to be citizens of India, and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.¹

[2] The adult claimant, [XXX], alleges that she fears returning to India due to membership in a particular social group, as a lesbian. The minor claimant, [XXX] fears returning to Indian, as a member of a particular social group – family.

[3] The mother, [XXX], consented to being the designated representative for her minor son, [XXX], for the purposes of the hearing.

[4] The panel has carefully considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression (SOGIE),² prior to assessing the merits of this claim.

[5] The panel has also carefully considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution prior to assessing the merits of this claim.³

ALLEGATIONS

[6] The principal claimant testified that her mother deceased when she was a year old and her father was busy working in the fields, so she was raised by her father’s brother and his wife. The claimant testified that she was born with a [XXX], a [XXX]. She explained that she was constantly compared by her aunt to her aunt’s own children, whom she considered to be beautiful, whereas she would call the claimant “ugly.” Furthermore, the aunt would treat her as a servant and keep her busy by making her perform manual labour. This lifelong mistreatment and humiliation led the claimant to attempt suicide at the age of 14 by jumping into a well. She felt isolated and ridiculed. The neighbouring farmers discovered the claimant and saved her.

[7] The claimant stated that her aunt and uncle sent their children to private schools and she was forced to attend a public school. She befriended a girl named [XXX] ([XXX])⁴ at school. She stated that [XXX] was in a similar predicament as her and she had a darker complexion. Both the claimant and [XXX] were of the opinion that no man would ever marry them because of their appearances.⁵ Over time, they formed a good friendship, which led to physical intimacy.

[8] In grade 11, her relationship with [XXX] was discovered and the claimant was beaten by her father and aunt and her education was prematurely terminated. They arranged a marriage for her which she adamantly opposed. The claimant stated that she was forcibly married at the age of 19 to [XXX],⁶ who was nine years older than her. She testified that he was a drug addict and alcoholic, and that he was physically and sexually abusive to her. On one occasion, he was so sexually aggressive with the claimant that she started bleeding. She reported the incident as rape to the police and the Inspector of Police asked her to return to her husband and indicated sex was part of marriage.⁷

[9] The claimant further explained that she did not enjoy any intimacy with her husband, but he tied her to the bed and frequently forced himself upon her. This led to her unwanted pregnancies. She wanted to terminate her second pregnancy, but the medical staff refused to abort the fetus unless her husband accompanied her to the hospital and consented to the procedure.⁸ He did not consent and so, she gave birth.

[10] In [XXX] 2011, her married life of physical and sexual abuse continued and when she continuously attempted to flee her estranged husband’s grip, he forcibly tied her to the bed with a rope and burnt her with a hot rod on five areas of her body.⁹ The claimant provided photographs of the injuries she sustained and she still bears the physical and psychological scars to this day.¹⁰

DETERMINATION

[11] The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.

IDENTITY

[12] In Exhibit 1, the claimants have provided copies of their genuine passports issued by the Republic of India which were initially suspected to be fraudulent but later certified to be true copies by an immigration officer on December 24, 2017.¹¹

[13] In Exhibit 9, the claimant has provided a copy of the minor claimant’s birth certificate¹² her 519 orientation training record,¹³ and her school transfer certificate issued by the Government of Tamil Nadu.¹⁴

[14] In Exhibit 7,¹⁵ the principal claimant has provided copies of her membership documents with the 519 Community Centre, a 519 reference letter, photographs of herself with fellow members of the LGBT community, family photos, photos of her scars, and a letter from her brother, [XXX].

[15] The panel finds the principal claimant to be a lesbian. The panel further finds both claimants to be nationals of the Republic of India.

CREDIBILITY

[16] The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado¹⁶ stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[17] The principal claimant was straightforward when responding to all questions. Her responses were consistent with the notes from the refugee examinations conducted on December 24, 2017, and December 27, 2017.¹⁷ Her sworn viva voce testimony was consistent with her Basis of Claim form (BOC)¹⁸ and narrative, her personal documents,¹⁹ and country condition documents.²⁰

[18] Having considered the totality of the evidence, the panel finds the principal claimant to be a credible and trustworthy witness. Accordingly, both claimants have established their subjective fear.

WELL-FOUNDED FEAR OF PERSECUTION

[19] The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of homosexual men in India.

[20] According to the current United States Department of State’s (DOS) “2018 India Human Rights Report” in the National Documentation Package (NDP):²¹

On September 6, the Supreme Court decriminalized same-sex relations in a unanimous verdict. Activists welcomed the verdict but stated it was too early to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…

[21] In paving the way for the future of the LGBT community, the landmark decision of Navtej Singh Johar v. Union of India suggests the following:²²

It is this immense task of combatting the prejudicial attitudes which were encoded in Section 377 which has to continue. Nariman J. was cognisant of this challenge and mandated the Union of lndia to give ‘wide publicity to the judgment’ and conduct ‘sensitisation and awareness training for government officials and in particular police officials in the light of observations contained in the judgement’.

While Nariman J. emphasises the role of the Union government in combating prejudice and stereotypes in accordance with the principles of the judgment, Chandrachud J. issues an important plea to civil society to continue to work to combat prejudices and realise full equality for LGBT persons in line with the mandate of a transformative Constitution.

[22] A World Bank report “estimates homophobia costs India $31 billion (R455bn) a year due to lower educational achievements, loss of labour productivity and the added costs of providing healthcare to LGBT people who are poor, stressed, suicidal or HIV positive.”²³

[23] The Guardian published an article in March 2019 titled, “‘There are few gay people in India’: stigma lingers despite legal victory,”²⁴ which states the following:²⁵

The stigma still lingers. “In India, it is a case of ethics,” says Sanjay Paswan, a member of the Bihar state council and former Indian federal minister who opposed the decision to lift the gay ban. “[Gay] people are suffering from some psychological weakness or problem or trauma. There are very [few] of them in India… “

The article further states that “[s]ocial acceptance is lagging far behind legal sanctions.”²⁶

[24] Counsel for the claimant acknowledged that decriminalizing and eradicating section 377 was a milestone for the LGBT community, but he pointed out that section 377 was specifically targeted at gay men. Counsel further explained that the police have numerous other laws which they utilize to charge members of the LGBT such as Anti-beggary laws,²⁷ Nuisance laws,²⁸ and the Immoral Trafficking Prevention Act.²⁹

[25] A report by the International Commission of Jurists (ICJ) titled “Unnatural Offences: Obstacles to Justice in India Based on Sexual orientation and Gender”, cites the 2015 Report of the Office of the UN High Commissioner for Human Rights, which has noted:³⁰

“Human rights mechanisms continues to emphasize links between criminalization and homophobic and transphobic hate crimes, police abuse, torture, family and community violence and stigmatization, as well as the constraints and criminalization puts on the work of human rights defenders”…

[26] The documentary evidence highlights the reluctance from many segments of society, including politicians and the police within India, to accept same-sex relationships.

[27] Accordingly, the panel finds that the claimants are at risk of persecution due to the principal claimant’s membership in a particular social group, as a lesbian, and the minor claimant’s membership in a particular social group, as a family member and the son of a lesbian.

STATE PROTECTION

[28] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.³¹

[29] According to the United Kingdom (UK) Home Office report at item 6.6 of the NDP: “If the person’s fear is of ill treatment/persecution at the hands of the state, they will not be able to avail themselves to the protection of the authorities.”³²

[30] The principal claimant testified that she sought police protection when she was raped by her estranged husband and the Inspector of Police asked her to return to him.³³ Furthermore, the claimant testified that the police are intolerant towards members of the LGBT community and they have the same biases as the Indian general community. She believes that police protection will not be forthcoming to her as a lesbian and to her minor son, as the child of a lesbian. She further stated that the members of the police force are one of the agents of persecution and they commit violence towards members of the LGBT community. She fears their wrath.

[31] According an objective and recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board:³⁴

In a February 2017 report on obstacles to justice for sexual minorities in India, the ICJ states the following:

The attitude and behaviour of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ bout the violence, abuse and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons owing to bias or stereotypes.

The same source adds that

[q]ueer people’s trust in the police is further eroded by the frequency of their negative interactions with police, for instance, when attempting to register complaints regarding violence and other crimes against them at the hands of private individuals. The police’s refusal to file such complaints has seriously detrimental impact on queer persons’ access to justice and redress.

US Country Reports 2018 states that “[s]ome police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.” [footnotes omitted]

[32] In light of the above, “the ICJ is concerned that the police’s negative attitude towards queer people in India puts them at an increased risk of violence from non-State actors as well.”³⁵

[33] Furthermore, the ICJ finds that “[d]emands for justice and accountability for police abuses have led to direct forms of reprisal by the police against those denouncing their abuses.”³⁶

[34] In addition, “[s]everal people also told the ICJ that they believed that a lack of willing and experienced lawyers who were sensitive to issues of gender, sexuality, and queer rights in India hindered the possibility of obtaining justice in courts.”³⁷

[35] Finally, the ICJ report notes that, “there are few legal remedies in the law for the violence and discrimination faced by queer persons. This also makes it difficult to approach the court with cases.”³⁸

[36] The NDP³⁹ and the documents submitted by the claimants⁴⁰ make clear that the state is the agent of persecution and, in these particular circumstances, is clear and convincing evidence that the state is unable or unwilling to protect the claimant.

[37] Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

[38] For the above-mentioned reasons, it is evident that state protection would not be forthcoming for the principal claimant due to her sexual orientation and her minor son.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[39] The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:

(1) As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”⁴¹ and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2) Moreover, the 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 claim, for him to seek refuge there.⁴²

[40] The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of India.

[41] Regarding internal relocation, the UK Home Office report states that “[w]here the person’s fear is of persecution and /or serious harm by the state, they will not be able to relocate to escape that risk.”⁴³

[42] The UK Office further finds that “India is a vast, diverse, multicultural country, Communities vary considerable not only in size, but also in their religious, ethnic, economic and political composition – and in the extent of their adherence to traditional social and family values.”⁴⁴

[43] According to a recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board reports the following:⁴⁵

India Spend reports that single women have to “depend [on] somebody’s goodwill – in-laws, parents brothers and sisters-in-law” in order to provide for them and their children … [Furthermore,] single women encounter “serious struggles with basic life issues such as getting a flat on rent or being taken seriously as a start-up entrepreneur or getting a business loan or even getting an abortion.” [footnotes omitted]

[44] The claimant testified that was used as a servant by her aunt and uncle and she was forced to perform menial tasks at home. She further explained that this was an obstacle to completing her homework and she was often punished by her teachers at school. In addition, when her father and aunt discovered her relationship with [XXX], a female school mate, they terminated her education and forced her into a marriage that she vehemently opposed. Thus, given her limited education, her estranged abusive husband, the lack of family support and as a single lesbian mother, the claimant would face a reasonable possibility of persecution from the Indian community and the Indian police, irrespective of where she lived within India. He minor son would also be subjected to ridicule and mistreatment due his relationship to his mother, a lesbian.

[45] A recent article in the New Yorker titled, “India’s Historic Gay- Rights Ruling and the Slow March of Progress”46 concludes the following:⁴⁷

A country decolonizes itself slowly. The Supreme Court’s decision on Section 377 snips away one more tether binding India to its colonial past. But the verdict resembles a strong beam of light only because it pierces through the stormy, illiberal weather around it. The other problems besetting India- a hideous right wing Hindu nationalism; unpunished violence against minorities and lower castes; political corruption; arrests of civic activists under trumped-up accusations; yawning disparities of wealth; the spoiling, perishing environment – are all homemade. They cannot be blamed on anyone else; that heaviness of responsibility is part of the compact of growing up. For allowing these dysfunctions to flare, and for failing to stamp them out, India will be able to blame no one but herself.

[46] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout the Republic of India. Thus, in the particular circumstances of the claimant, who is a lesbian single mother with a minor son, an internal flight alternative is unavailable.

CONCLUSION

[47] The panel finds [XXX] and [XXX] to be Convention refugees. They have established that there is a reasonable chance of persecution if they were to return to their country of nationality, India, today.

(signed) S. Seevaratnam

August 21, 2019

¹ The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, sections 96 and 97(1).
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 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
⁴ Exhibit 1, Package of information from the referring CBSA/CIC, Refugee Examination conducted on December 27, 2017, p.5, received January 4, 2018.
⁵ Exhibit 2, Basis of Claim from (BOC), Narrative, para 5, received January 15, 2018.
⁶ Ibid., response to q.5.
⁷ Ibid., Narrative, para 9.
⁸ Ibid., para 11.
⁹ Ibid., para 13.
¹⁰ Exhibit 7, Personal Documents, pp.22-26, received August 9, 2019.
¹¹ Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
¹² Exhibit 9, Claimants’ Documents, pp.9-10, received August 13, 2019.
¹³ Ibid., p.1.
¹⁴ Ibid., pp.2-4.
¹⁵ Exhibit 7, Personal Documents, received August 9, 2019.
¹⁶ Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
¹⁷ Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
¹⁸ Exhibit 2, BOC, Narrative, received January 15, 2018.
¹⁹ Exhibit 7, Personal Documents, received August 9, 2019; Exhibit 9, Claimants’ Documents, received August 13, 2019.
²⁰ Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019); and Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019.
²¹ Exhibit 4, NDP for India (May 31, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
²² Ibid., item 6.2, Idea of transformative constitutionalism and the way ahead.
²³ Exhibit 8, Human Rights Documentary Evidence, p. 10, received August 9, 2019.
²⁴ Ibid., pp.43-46.
²⁵ Ibid., p.44.
²⁶ Ibid., p.46.
²⁷ Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019), item 6.3, s.II(A)(ii) -Anti-Beggary laws.
²⁸ Ibid., Nuisance laws.
²⁹ Ibid., Immoral Trafficking Prevention Act.
³⁰ Ibid., Laws regulating the police.
³¹ Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
³² Exhibit 4, NDP for India (May 31, 2019), item 6.6, p.10, s.2.5.1.
³³ Exhibit 2, BOC, Narrative, para 9, received January 15, 2018.
³⁴ Exhibit 4, NDP for India (May 31, 2019), item 6.1, s.3.2.
³⁵ Ibid., item 6.3, s.III.
³⁶ Ibid., s.III(B – ii.).
³⁷ Ibid., s.IV(A).
³⁸ Ibid., s.IV(D).
³⁹ Exhibit 4, NDP for India (May 31, 2019).
⁴⁰ Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019.
⁴¹ Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.
⁴² Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
⁴³ Exhibit 4, NDP for India (May 31, 2019), item 6.6, p. l 0, s.2.6.1.
⁴⁴ Ibid., p.22, s.5.1.1.
⁴⁵ Ibid., item 5.11, s.l.
⁴⁶ Exhibit 8, Human Rights Documentary Evidence, pp.12-16, received August 9, 2019.
⁴⁷ Ibid., pp.15-16.

All Countries Lebanon

2019 RLLR 52

Citation: 2019 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: D. Morris, L. Hartslief, J. Kushner
Counsel for the claimant(s): Jasmina Mrkalj-Skelly
Country: Lebanon
RPD Number: TB7-24110
ATIP Number: A-2020-01274
ATIP Pages: 000080-000088

REASONS FOR DECISION

INTRODUCTION

[1] The claimant, a 74-year-old stateless Palestinian, is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

DETERMINATION

[2] The panel determines that the claimant is a Convention refugee because she faces a serious possibility of persecution in her country of former habitual residence, Lebanon, due to her membership in a particular social group, namely as the family member of a political opponent of Hezbollah.

ALLEGATIONS

[3] The allegations respecting the basis of the claimant’s fear in Lebanon are set out in her Basis of Claim (BOC) form.²

[4] The claimant and several members of her family have been targeted for violence and extortion by armed groups in Lebanon. Most recently, the claimant herself was targeted after her son was kidnapped by Hezbollah after coming into conflict with his wife’s brother, who is a member of Hezbollah. After the claimant attempted to relocate to another part of Lebanon, she was located, threatened and assaulted by members of Hezbollah, who view her and her family as being in opposition to them. Hezbollah view the family as opponents because male members of the family, including her son [XXX], have consistently refused to associate themselves with or otherwise support the group.

[5] The claimant fears that she will be harmed or killed by Hezbollah if she returns to Lebanon.

ANALYSIS

Identity and Statelessness

[6] The claimant was born in Palestine in 1945, fled Palestine during the war in 1948 and lived in [XXX] in Lebanon until she fled to Canada in 2017. Though born in Palestine and living for many years in Lebanon, the claimant has no citizenship in any country.

[7] On a balance of probabilities, the panel finds that the claimant has established that she is a stateless Palestinian whose country of former habitual residence is Lebanon. This is based on her testimony, the testimony of her son [XXX], who appeared as a witness, as well as the claimant’s Lebanon ID Card, Lebanon Travel Document for Palestinian Refugees, Lebanon General Security Travel Document, and her various Canadian Temporary Residence Visas.³

[8] Based on this evidence, the panel finds on a balance of probabilities that the claimant is not a citizen of any country. Her significant period of de facto residence in Lebanon for more than 70 years leads the panel to the conclusion that her only country of former habitual residence is Lebanon. The panel finds that she does not have a right to return to or obtain citizenship in any other country. The country of reference for this claim is therefore determined to be Lebanon.

Credibility

[9] The panel had some credibility concerns with respect to certain aspects of the claimant’s testimony. However, in assessing this case the panel was cognizant of the claimant’s advanced age and her limited formal education.⁴

[10] The panel’s concerns arose mainly from the claimant’s difficulty in recounting details of incidents set out in her BOC. In testimony, she admitted that her daughter, [XXX] and her son, [XXX] had both been with her while she was completing her BOC and helped her write her narrative.

[11] A thorough review of the BOC shows that, for the most part, the only incidents in which the claimant was directly involved occurred after her son [XXX] had fled the country. The panel is of the view that, more likely than not, the claimant was assisted to recount stories in her BOC that had occurred to other members of her family (as is clear from the narrative) but of which she had little firsthand knowledge. The panel’s concerns were largely addressed by the testimony of her son [XXX] who was able to recount in greater detail the reasons for his flight from Lebanon and how this situation affected his mother:

The claimant’s son [XXX], who is also a stateless Palestinian, fled Lebanon in 2015 and was recognised as a Convention refugee by the Refugee Protection Division in [XXX] 2017.⁵ [XXX] testimony and the reasons for his recognition as a Convention refugee in Canada, corroborate the claimant’s story as follows: that [XXX] had come into conflict with Hezbollah and with his ex-wife’s brother, [XXX], who was also a member of Hezbollah;

[XXX] had been kidnapped by Hezbollah outside of Beirut in July of 2015 and suffered fairly severe injuries during his captivity;

After [XXX] departed Lebanon the claimant started to receive threats from the same persons who had kidnapped and threatened him, and;

[XXX] had tried to have a committee from [XXX] intervene on his behalf with Hezbollah but that these efforts were rebuffed by [XXX].

[12] As stated above, the panel also considered the claimant’s age and educational background in coming to its decision. The panel finds that the claimant tried to be as forthcoming as possible and to recount events to the best of her ability. As it relates to the events that she experienced following her son’s departure from Lebanon, the panel found the claimant to be credible.

[13] The panel therefore finds that the claimant does have a credible fear of the persons who had attacked her son and that she did start to receive threats after he had finally departed Lebanon.

Re-availment and Delay in Claiming in Canada

[14] While re-availment or delay may not necessarily be determinative of a particular claim, they might be evidence of a lack of subjective fear on behalf of the claimant.

[15] The claimant travelled to Canada on three previous occasions prior to her arrival in [XXX] 2017, returning to Lebanon each time. There are copies of Canadian Temporary Resident Visas on record for each of these trips.⁶ The last of these was between [XXX] 2014 and [XXX] of 2015 with the claimant returning to Lebanon on [XXX] 2015.

[16] With regard to her previous trips to Canada and return to Lebanon, the claimant testified that it was never her intention to claim refugee status on those trips. The panel finds this consistent with her statements that it was only after [XXX] had finally left Lebanon for good, after being assaulted and tortured by Hezbollah in [XXX] 2015, that the claimant herself came into conflict with a member of Hezbollah and she began to fear for her own safety.

[17] With regard to her most recent trip to Canada, the claimant delayed in making her claim for approximately [XXX] weeks (she arrived in Canada on [XXX] 2017 and submitted her claim on 3 December 2017). In testimony, the claimant stated that her intention was to return to Lebanon once the situation there had settled. However, while in Canada the claimant was informed by her daughter, [XXX], that the claimant’s home in [XXX] had been taken over by Hezbollah and that Hezbollah continued to seek the claimant out. It was then that the claimant realized it would not be possible for her to return to Lebanon.

[18] The panel finds that this explanation is reasonable under the circumstances and is consistent with the explanation provided in her BOC.

[19] The panel therefore finds the claimant’s subjective fear is not impugned by this delay or the fact that she had returned to Lebanon after her previous trips to Canada.

Objective Basis – Country Conditions

[20] The country conditions outlined in the National Documentation Package (NDP) include reports which speak to the systemic discrimination facing Palestinians who reside in Lebanon, as well as the general security conditions in the country, particularly within the Palestinian camps.⁷ It shows that Palestinian refugees in Lebanon suffer from severe discrimination and are denied basic civil and political rights, regardless of their long term residence in the country.

[21] Lebanon is not a signatory to the 1951 Convention or the 1967 protocol and does not recognize the basic rights of people with refugee status.⁸

[22] Palestinian refugees who live in Lebanon are denied citizenship rights and are subjected to racism, arbitrary arrest, kidnapping and torture.⁹

[23] Human rights abuses persist within the Palestinian camps and in Lebanon in general. These include the arbitrary arrest and detention of Palestinians by autonomous Palestinian security groups.¹⁰ The documentation confirms the claimant’s allegation that Hezbollah and other factions extra-judicially arrest and abuse refugees.

Authorities failed to observe many provisions of the law, and government security forces, as well as extralegal armed groups such as Hizballah, continued the practice of extrajudicial arrest and detention, including incommunicado detention.

…

NGOs reported that most cases involved vulnerable groups such as refugees … ¹¹

[24] These armed groups operate without the supervision of any official judicial systems.¹²

[25] The documentation also supports the claimant’s assertion that her family had tried to resolve their issue with Hezbollah through a committee in [XXX]. The United Nations High Commissioner for Refugees [UNHCR] has reported that:

Palestinian groups in refugee camps operated an autonomous and arbitrary system of justice outside the control of the state. For example, local popular committees in the camps attempted to resolve disputes using tribal methods of reconciliation.¹³

[26] The objective evidence therefore corroborates the general elements of the claimant’s allegations, including the impunity with which Hezbollah and other armed groups operate in Lebanon.

[27] Having considered all of this evidence, the panel finds that the claimant faces more than a mere possibility of persecution based on her membership in a particular social group, namely as the family member of a political opponent of Hezbollah.

State Protection and Internal Flight Alternative

[28] A state is presumed to be able to provide adequate state protection. To rebut the presumption of state protection, a claimant must provide “clear and convincing evidence.”¹⁴ The claimant must establish that state protection in inadequate. If the claimant is able to show the absence of protection anywhere in the country, there will be no internal flight alternative (IFA).

[29] The claimant’s testimony and the documentary evidence referenced above make it clear that state protection or relocation within Lebanon are not options for the claimant. Severe discrimination against Palestinians is widespread and systematic throughout all the country, particularly outside of the refugee camps.¹⁵ The US Department of State notes that, ” … Hizballah, and other extremist elements operated outside the direction or control of government officials.”¹⁶

[30] Within the camps, UNHCR reports that:

Palestinian individuals may reportedly be at risk of being subjected to harassment, threats or abuse at the hands of militant factions in the camps. As the Lebanese authorities have no access to the camps (with the exception of Nahr El-Bared Camp), those at risk can reportedly not seek protection from the Lebanese authorities.¹⁷

[31] This is consistent with the claimant’s statement that she did not seek protection from the authorities because Lebanese authorities are not present in the camps and do not protect the refugees there. The panel therefore concludes that the claimant would not be able to access state protection anywhere in Lebanon.

[32] With regard to an internal flight alternative, the panel further notes that the claimant did try to relocate from [XXX] to [XXX] and that Hezbollah was able to locate her there.

[33] The panel therefore finds, on a balance of probabilities, that neither adequate state protection nor an internal flight alternative is available to the claimant.

CONCLUSION

[34] Having considered the totality of the evidence, based on the foregoing analysis, the panel finds the claimant’s fear of persecution in Lebanon to be well-founded. The panel finds the claimant is a Convention refugee and therefore accepts her claim.

(signed) D. Morris

Concurred in by: (signed) L. Hartslief

(signed) J. Kushner

May 8, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
² Exhibit 2
³ Exhibit 1 (Originals are all in the possession of Canadian Immigration authorities).
⁴ Exhibit 1, Schedule A, question 7.
⁵ Exhibit 11.
⁶ Exhibit 1
⁷ Exhibit 3, National Documentation Package (NDP) for Lebanon (29 March 2019), item 2.1.
⁸ Ibid., item 13.5.
⁹ Ibid., item 13.1.
¹⁰ Ibid., item 2.1.
¹¹ Ibid., at p. 9.
¹² Ibid., item 13.1.
¹³ Ibid., item 13.2.
¹⁴ Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85, at pp. 724-726.
¹⁵ Exhibit 3, NDP for Lebanon (29 March 2019).
¹⁶ Ibid., item 2.1, at p. 1.
¹⁷ Ibid., item 13.2, at p. 19.

All Countries India

2019 RLLR 51

Citation: 2019 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: Milton Israel
Counsel for the claimant(s): Ronald Yacoub
Country: India
RPD Number: TB7-23722
ATIP Number: A-2020-01274
ATIP Pages: 000074-000079

REASONS FOR DECISION

[1] [XXX], the principal claimant, and [XXX], his wife and the associate claimant, citizens of India, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

ALLEGATIONS

[2] The Basis of Claim Form (BOC) of the principal claimant (hereafter the claimant) represented both claimants.²

[3] The claimant alleges in his narrative that he and his wife were threatened and attacked by members of the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist organization that supports the Bharatiya Janata Party (BJP), the ruling party in India.

[4] The claimant further alleges that RSS members attempted to kill him on [XXX], 2017, as well as a few times earlier. The reason for these attempts was a statement that the claimant made at his Gurdwara, indicating that people should be able to eat any meat they desired, including beef. This was considered to be an insult to Hindus who considered the cow to be holy.

[5] The claimant received threats from the RSS and went to the police, but received no help. The threats also made an impact on his health, causing [XXX], [XXX], [XXX], and [XXX]. As a result, he and his wife moved to Amritsar, and stayed with his nephew. However, extremists followed him there, and he received a death threat. He went to the police again, but received no help.

[6] On [XXX], 2017, the claimant and his wife returned to their home in [XXX]. The next day, members of the RSS attacked his home, and the claimant was beaten. On [XXX], the claimant and his wife went to New Delhi, where he received first aid, and on [XXX], they left India and came to Canada.

[7] On [XXX], 2017, their house was attacked again. The claimant alleges that they assumed he was there, and would have killed him if he had not left India.

THE ISSUE

[8] The determinative issue in this claim is credibility.

[9] The panel questioned the claimant concerning his allegations. He was asked how Hindu nationalists heard about his statement as he made it in a Gurdwara. The claimant explained that there was a nearby Hindu temple, and Hindus often came to the Gurdwara.

[10] The panel noted that the three affidavits he disclosed concerning the incident in the Gurdwara were word for word exactly the same,³ and the claimant was asked how that was possible if they were prepared independently. The claimant explained they were given in Punjabi, and then translated into English. The panel noted the Punjabi originals were not disclosed, and the claimant explained they were prepared for Canada. The panel is not persuaded that the three affidavits were prepared independently, and finds that the word for word replication reduces their evidentiary weight as to the claimant’s allegations.

[11] The claimant was questioned as to the alleged attempt of the RSS to kill him on [XXX], 2017. He described being dragged out of his house and beaten. The claimant was asked if there was an attempt to kill him, and he testified that they had no knife or gun. He further testified that his wife screamed, and neighbors came and the perpetrators ran away.

[12] The panel noted that the claimant indicated in his narrative that there were other attempts to kill him, and the claimant was asked to describe those incidents. The claimant testified as to the threats, and his trouble recalling these incidents. The panel notes that no substantive evidence was provided, either in the claimant’s narrative or in testimony, which concerned such alleged incidents. Subsequently, the claimant testified that between 2014, when the Gurdwara incident occurred, and 2017, when his house was attacked, there were only threats.

[13] The panel noted that the claimant disclosed four affidavits concerning the alleged attack on [XXX], 2017.⁴ The panel further noted that the four affidavits are exactly the same. The claimant provided the same explanation as in the case of the affidavits concerning the Gurdwara incident. The panel finds, again, that there is a significant doubt that these affidavits were prepared independently, and gives them reduced evidentiary weight.

[14] The claimant’s son, [XXX], a resident of Canada, appeared as a witness in the hearing. He testified that he visited India, and talked to his parents’ neighbors and officials in the Gurdwara. They confirmed the claimant’s allegations regarding his speech in the Gurdwara, and the attack on his home. He further testified that he visited his parents’ home, and was attempting to repair some broken windows and a door, when he was attacked by two men. He ran to another house, and subsequently received medication and therapy for an injury to his shoulder.

[15] The witness also testified that his father, who is 70 years old, was being medicated for his diminishing mental abilities, which resulted from the trauma he experienced in India. The panel notes a medical document was disclosed in this regard.⁵ Moreover, the witness stated that the claimant dictated his narrative to his daughter-in-law, but his mental state was not normal at the time.

[16] The panel finds that the claimant testified in a straightforward manner. The panel further finds that it has credibility concerns about the affidavits disclosed by the claimant, and the claimant’s allegations about multiple efforts to kill him without evidentiary support. The panel notes that the claimant changed his testimony in this regard in the hearing.

[17] The panel further finds that while the affidavits have been found to be of reduced evidentiary weight because of the content duplication, their corroboration of the claimant’s allegations is not totally undermined.

[18] In regard to the panel’s concern about the credibility of some of the claimant’s testimony, it notes that the evidence provided by the claimant’s son and in medical documentation, provides a credible explanation concerning the claimant’s diminished mental condition.

[19] The panel finds, on a balance of probabilities, that the claimant has been a credible witness as to his allegations concerning his Gurwara remarks, and the resulting attacks by members of the RSS.

[20] The panel notes that it indicated at the beginning of the hearing that even if the claimant’s allegations concerning his RSS risk are found to be credible, he has an internal flight alternative (IFA) available to him in Mumbai.

[21] The panel questioned the claimant as to his possible resettlement in Mumbai if he believed he and his wife were unsafe in Punjab. The claimant responded that Sikhs were a minority community, and the RSS was everywhere in India. The panel noted that Sikhs lived in all parts of India, and that there was no constraint on their doing so. The claimant responded that Mumbai was costly, and the panel noted that, like all major cities, there were less expensive communities on the periphery of the expensive center. The claimant further testified that there was a bias in favor of Maharashtrians, but the panel noted that Mumbai remained a cosmopolitan metropolis. The claimant responded that he had lived his life in a small community, and he did not have many more years to live.

[22] The panel has considered the two prongs of the IFA test, and acknowledges that both prongs must be satisfied for finding that the claimants have an IFA.⁶ While the panel is satisfied with the requirement of the first prong, that there is no serious possibility of the claimants being persecuted in the part of the country to which it finds an IFA exits, the requirement of the second prong, that the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there, has not been met.

CONCLUSION

[23] The panel finds, on a balance of probabilities, and in the context of the evidence concerning the claimant’s age and mental health, that an IFA in India is not available to him. The panel further finds, on a balance of probabilities, that the principal claimant and the associate claimant cannot return to India without the risks pursuant to section 97(1) of the IRPA. Therefore, their claims are accepted.

(signed) Milton Israel

December 11, 2019

¹ The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
² Exhibit 2, Basis of Claim Form (BOC) – TB7-23722.
³ Exhibit 5, Claimant’s Disclosure, at pp. 23, and 28-29.
⁴ Exhibit 5, Claimant’s Disclosure, at pp. 24-25, 27, and 30.
⁵ Ibid., at p. 74.
⁶ Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

All Countries Hungary

2019 RLLR 50

Citation: 2019 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2019
Panel: S. Eng
Counsel for the claimant(s): John A Salam
Country: Hungary
RPD Number: TB7-23388
Associated RPD Number(s): TB7-23443, TB7-23444, TB7-23445, TB7-23460
ATIP Number: A-2020-01274
ATIP Pages: 000069-000073

DECISION

[1] MEMBER: This is the decision in the claims of principal claimant [XXX]; her three children [XXX], [XXX] and [XXX]; along with her common-law partner [XXX]; in RPD File Numbers TB7-23388, TB7-23443, TB7-23444, TB7-23445 and TB7-23460.

[2] The claimants are citizens of Hungary and they are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

[3] The facts and events alleged in support of their claims are set out in their respective Basis of Claim Forms. In summary, the claimants allege persecution in Hungary on the basis of their ethnic Roma identity.

[4] The panel finds that the claimants are Convention refugees within the meaning of Section 96 of the IRPA.

[5] The claimants’ identities were established as citizens of Hungary through their passports and the passports which were seized by CBSA. The panel is therefore satisfied that the claimants have met their burden and established their identities.

[6] Based on its consideration of the totality of the evidence including the claimants’ testimonies, the panel finds on a balance of probabilities that the claimants are ethnic Roma. The principal claimant was the only claimant that testified at the hearing. The panel finds that the claimant testified in a straightforward fashion with regard to the central element of her claim.

[7] The panel finds that the claimant’s overall testimony was credible and accepts on a balance of probabilities that she has faced discrimination that would rise to the level of persecution and would continue to face a serious possibility of persecution on a forward-looking basis should the claimants return to Hungary.

[8] In their Basis of Claim Forms and in the principal claimant’s testimony, the claimant provided in detail regarding a number of incidences of discrimination in Hungary which the panel would summarise.

[9] The claimant has around a grade [XXX] education, which she testified was the result of discriminatory attitudes towards Roma students in school and was not able to continue.

[10] The claimant testified how her three children also experienced discrimination in school because of their Roma ethnicity. The claimant testified about housing problems in Hungary and visits from the Children’s Aid Society in Hungary. The claimant testified how unpaid debts led to the water and electricity being disconnected to the house and a visit from the Children’s Aid Society over the conditions with her children.

[11] The claimant had testified how she had moved into this house which was her ex-husband’s around the year 2000. The claimant testified how after the visit from Children’s Aid Society, she moved into a side cabin by her parent’s house and also talked about her divorce from her ex-husband around the same time. The claimant testified about the side cabin not having proper running water or bathroom facilities.

[12] She indicated how the Children’s Aid Society came to see her again and that she had to move in with the parents of her current common-law partner. The claimant testified how the Children’s Aid Society followed up with another visit and indicated that that house was too small for her and all the children to live in. The claimant described how she tried to find housing to rent but was turned away due to the number of children she had and also because of her Roma ethnicity. Claimant testified about the Children’s Aid Society threatening to take away her children and that being the main reason for fleeing Hungary.

[13] The claimant also testified about her attempts to obtain employment, but how she was only able to find temporary work under the table because of her Roma identity.

[14] The claimant spoke about not receiving proper medical treatment and suffering from an infection from a caesarean section delivery.

[15] The claimant also testified about her common-law partner and her son being attacked by ultranationalist Hungarians by bus stop. The panel found the claimant’s testimonies to be credible and lacking in embellishment.

[16] The panel did have concerns regarding the claimant’s testimony regarding the auction of her ex husband’s house after their divorce, which the claimant would have been entitled to half of the profits of the sale. The claimant testified that she did not know what happened to the house after speaking to the executor and whether it had been auctioned off. The claimant did not follow up again about the matter despite having the phone number and address for the person responsible for this sale, and did not provide any further documentation regarding the proceedings and sale of the house.

[17] The panel finds the claimant’s testimony regarding the sale not credible as the panel finds the claimant would have sought further information on profits that she would have or might have been able to receive or even to further establish this claim. However, the panel finds that the concerns with the auction or sale of the house do not negate the panel’s other findings where the testimony and evidence were persuasive in showing that the claimants have experienced serious, systemic and repetitive discrimination.

[18] The panel finds cumulatively that the discrimination the claimants faced including in areas of education, employment, housing and health care, that they have experienced discrimination rising to the level of persecution in Hungary.

[19] There is also evidence to suggest State protection has not been adequately available to the claimants. The country documentation for Hungary is broadly consistent with what the claimant has indicated will happen to them. The National Documentation Package for Hungary indicates that Roma experienced widespread discrimination in housing, employment, education and treatment and accessing health care. Based on the claimant’s testimony, the panel finds that there has been systematic societal discrimination against the claimants being Roma which affected their access to adequate education, health care and employment.

[20] Regarding State protection, though Hungary is a functioning democracy and is a member of State of the European Union and though the documentary evidence tells me that Hungary is attempting to make changes to improve the situation for Roma, serious problems remain today.

[21] Based on these country conditions and based on the claimant’s testimony, which the panel has found to be credible, the panel is satisfied that State protection would neither be adequate or forthcoming. There are multiple instances recorded of Roma individuals seeking protection and being subjected to racist or discriminatory actions by police. The panel finds that claimant’s own actions and failing to seek out State protection are reasonably explained.

[22] The panel also finds that there is no internal flight alternative available to the claimants as the problems of discrimination and the response by the police and authorities seem to be nationwide.

[23] Having considered all of the evidence, the panel finds that [XXX], [XXX], [XXX], [XXX] and [XXX] are Convention refugees and have established a serious risk of persecution, and the panel accepts their claim.

[24] I will now allow the other members to indicate whether or not they concur with the panel’s decision.

[25] DANIEL MCKEOWN: I concur.

[26] KATRINA PIKE: I concur, but for slightly different reasons that I will now give.

[27] Well, I broadly concur with the reasons of my colleagues though different from their finding in one important regard.

[28] I find that you did not face the issues that you put forward in terms of housing and child protective services before you left Hungary.

[29] You owned, madam, a home in Hungary. The preponderance of the evidence before me, I find, supports that you continue to live in that home. Your ID documents continue to state that you had that as your address. When you came to Canada, you have listed that as your address, and you provided no documentary evidence to support that you ever lived anywhere else.

[30] In addition, as noted by my colleagues, you provided one document related to the sale of that home. It showed that the sale did not occur. Despite having the specific contact information for someone intimately involved in that sale, you did not provide any further evidence to support any other aspect of that sale.

[31] And so on that important point, I do find that the evidence doesn’t support your allegations. However, on a forward-looking basis, I do find that the evidence that you have provided that is credible does support that your housing situation going forward would be precarious given the attempt to sell of the home to recover debt.

[32] The other evidence you provided today with regard to what you faced as Roma in education and work and with regard to experiencing racist incidents was credible, as it was internally consistent and consistent with the broader country documentation. You are all likely to experience discrimination in housing going forward given the country documentation.

[33] So, I do agree with the reasons put forward by my colleagues regarding how and why the evidence supports that given what you face upon return to Hungary, you do face persecution, as well as their reasons for why there is no State protection or internal flight alternative available to you.

[34] MEMBER: Thank you.

[35] So, that concludes the decision.

———- REASONS CONCLUDED ———-

All Countries Bangladesh

2019 RLLR 49

Citation: 2019 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: James Waters
Counsel for the claimant(s): Yasmine Abuzgaya
Country: Bangladesh
RPD Number: TB7-22737
ATIP Number: A-2020-01274
ATIP Pages: 000060-000068

REASONS FOR DECISION

[1] The claimant, [XXX], claims to be a citizen of Bangladesh and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).¹

[2] In assessing her claim, I considered Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.²

ALLEGATIONS

[3] After a brief courtship, the claimant entered into an arranged marriage in Bangladesh with a permanent resident of Canada, in [XXX] 2015.³

[4] Her husband returned to Canada shortly after the marriage, and in [XXX] of 2016, he submitted an undertaking to sponsor the claimant’s spousal application for permanent residence in Canada.

[5] Her husband returned to Bangladesh to visit her in the spring of 2016. Problems over dowry issues between the respective families surfaced during this visit, escalating from heated arguments to threats of physical violence.

[6] The claimant alleges that she was verbally, physically and sexually abused by her husband during this visit.

[7] The spouses attempted to reconcile, and made a trip together to India in [XXX] of 2016. Her husband returned to Canada at the end of [XXX] of 2016.

[8] The claimant alleges that she was stalked and threatened by her husband’s family and friends after he returned to Canada.

[9] The claimant arrived in Canada on [XXX], 2016 with a visa authorizing her to enter Canada, and told the immigration officer she wished to reconcile and reside with her sponsor.

[10] Her husband was notified of her arrival by an immigration official and attended at the airport, where he advised IRCC that he had withdrawn his undertaking to sponsor her and did not want to reconcile and have her reside with him.

[11] She made her refugee claim inland on November 3, 2017, after being advised that she was in breach of a condition requiring her to reside with her sponsor. The admissibility hearing was cancelled after she made her refugee claim.

IDENTITY

[12] The national identity of the claimant as a citizen of Bangladesh was established by her oral testimony in the Bengali language, and the supporting documentation filed.⁴

[13] The supporting documentation included copies of her valid passport, birth certificate and school records.⁵ Originals of the birth certificate and school records produced by the claimant were made available to the RPD prior to the hearing.

[14] In the statutory declaration the claimant’s sponsor alleged that the claimant had filed a falsified birth certificate as part of her application for permanent residence to conceal that she was born on [XXX], 1998, rather than [XXX], 1997.⁶ A translated copy of a birth certificate showing the claimant’s birthdate as [XXX], 1998 was attached to the statutory declaration.⁷

[15] An affidavit of a lawyer at the [XXX] described the online searches performed by that lawyer to confirm that the [XXX], 1997 birth date in the birth certificate produced by the claimant matched that in the online records searched by the affiant.⁸ The affiant described the similar searches she conducted, unsuccessfully, on the online registry to verify the [XXX], 1998 birthdate indicated in the copy of a birth certificate produced by the sponsor in his statutory declaration.

[16] Having regard to the evidence submitted the claimant established on a balance of probabilities that she is the person she says she is, and that she was born on [XXX], 1997.⁹

[17] There were discrepancies between the claimant’s consistent oral and written testimony, and the inconsistent information in the spousal Sponsorship Questionnaire.¹⁰ as to when the couple met. The claimant explained that she had signed blank spousal sponsorship forms and returned them to her sponsor who hired an immigration consultant to fill them in and submit them.

[18] There was abundant evidence in the form of a marriage certificate, wedding photographs¹¹ as well as the statutory declaration of her sponsor to establish on a balance of probabilities the marriage ceremony and the registration of the marriage.¹²

[19] A copy of a certificate of divorce was sent to IRCC by her sponsor, which indicates that her sponsor divorced her effective [XXX], 2017.¹³

[20] A copy of a pending application and supporting affidavit to set aside the divorce judgment, based on improper service of the Petition for Divorce, was filed.¹⁴

CREDIBILITY

[21] The standard of proof for assessing evidence as well as credibility is a balance of probabilities that the evidence is, more likely than not, true.¹⁵ When a claimant swears to the truth to certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.¹⁶ In assessing the credibility of a claimant, the panel is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.

[22] The claimant’s oral testimony as to the spousal abuse she suffered at the hands of her former husband was generally consistent with that described in her personal narrative¹⁷ and the description contained in a psychological assessment report filed.¹⁸

[23] The claimant was confronted with the fact that her husband was not aware of her travel plans. She testified that she had tried to inform her husband, but he had discontinued contact. She hoped to reconcile with him after coming to Canada.

[24] The claimant testified that while their relationship had broken down before she came to Canada, neither her husband, nor IRCC had informed her that he had withdrawn or wished to withdraw his sponsorship until after she had arrived in Canada.

[25] A credibility concern explored at the hearing was why the claimant would chose to reconcile in Canada with an abusive spouse who had assaulted and sexually abused her on his previous trip to Bangladesh, and who apparently did not want her to come to Canada.

[26] The claimant noted cultural and social mores, as well as family pressures in Bangladesh against a woman leaving a spousal relationship.

[27] In her written submissions claimant’s counsel submitted that women facing domestic and intimate partner abuse chose to return to the relationship for a variety of cultural, religious and financial realities including fears of increased abuse post separation.¹⁹

[28] The claimant’s counsel cited excerpts from the expert opinion letter of [XXX], outlining a number of factors influencing abused woman to stay in an abusive relationship.²⁰ Claimant’s counsel also cited a Human Rights Watch Report that mentioned financial dependency amongst other factors relevant to abused woman in Bangladesh.²¹

[29] The claimant testified as to her father being harassed and threatened in Bangladesh over unresolved dowry issues, and the breakdown of the marriage both before and after she came to Canada. This oral and written testimony was supported by a translated excerpt from a diary provided to the police.²²

[30] An affidavit from a relative in Canada, and a notarized statement and letters from family in Bangladesh and Canada supported her oral and written testimony as to her fear of harm from her husband and his family and friends, if she returned to Bangladesh.²³

[31] Having regard to all of the evidence submitted that did not include the oral testimony of her former spouse, the claimant established on a balance of probabilities, the allegations of verbal, physical, sexual and psychological abuse outlined in her narrative.

Objective Basis

[32] The documentary evidence indicates that domestic violence is rampant in Bangladesh and that it “occurs for many reasons, most often connected to dowry demands.”²⁴

[33] The documentary evidence indicates that, in Bangladesh, violence within a relationship is generally seen as private matter, and that there is a general acceptance of violence against women and girls.²⁵ Despite a raft of legislation, enforcement remains weak, and the few offenders who are prosecuted receive minor punishments if any at all.²⁶

[34] Corruption within the police and judicial system was identified in the United States Department of State Report as a general problem preventing fair trials.²⁷ A United Nations Human Rights report on Bangladesh attributes a lack of faith in the court system and the failure to implement the laws as factors in the continued high incidence of acid attacks, rapes and dowry related violence.²⁸

[35] The claimant’s former spouse lives in Canada. Articles were filed to support the claimant’s fear of an acid attack if she returned to Bangladesh, from her husband’s family, or his associates who had stalked her while she was living in Bangladesh after her husband returned to Canada.²⁹

[36] The preponderance of the documentary evidence establishes an objective basis for the claim.

[37] The claimant testified that her former husband is aware of where her family members live in Chittagong. She established a serious possibility of persecution should she return to there. Her nexus is as a member of a particular social group as a single divorced woman who has been subjected to domestic violence.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[38] An IFA arises when a claimant who has a well-founded fear of persecution in his or her home area of the country is not a Convention refugee because he or she has an internal flight alternative elsewhere in the country.

[39] The test to be applied in determining whether there is an IFA is two pronged:

The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.³⁰

Conditions in the part of the country [considered to be an IFA] must be such that it would not be unreasonable, in all the circumstances [including those particular to the claimant] for [her] to seek refuge there.³¹

[40] The Federal Court of Appeal sets a very high threshold for the ‘unreasonableness test’, requiring nothing less than the existence of conditions which would jeopardize the life or safety of the claimant. There must be actual and concrete evidence of such conditions.

[41] Dhaka was identified as a possible internal flight alternative.

[42] The claimant is a young divorced woman who was not employed while living in Bangladesh. She testified that she would be unable to get a job or housing in Dhaka. She testified that her father is an elderly man with health problems, who lives with a son in Chittagong, on whom he relies for financial and emotional support. She testified that none of her family members had the financial resources to support her relocation anywhere, never mind an expensive city like Dhaka.

[43] Her counsel submitted that a divorced / single woman like the claimant cannot realistically relocate within Bangladesh due to three reasons:³²

1. an inability to secure housing;

2. lack of employment opportunities; and

3. lack of domestic violence shelters and other social services.

[44] Counsel buttressed her written submission with references to documentary evidence indicating that:³³

1. divorced woman encounter huge difficulties in accessing housing;

2. a grim employment situation for single and divorced woman;

3. single and divorced woman, in general are looked down upon by society;

4. the limited social services available were difficult to access.

[45] The claimant established on a balance of probabilities that given the circumstances of single divorced woman in Dhaka, together with the particular circumstances of the claimant, it is not reasonable for her to seek refuge there.

CONCLUSION

[46] I find that [XXX] is a Convention refugee. I therefore accept her claim.

(signed) James Waters

April 10, 2019

¹ The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
² Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
³ Exhibit 2, Basis of Claim (BOC).
⁴ Exhibit 9, Package 1; and Exhibit 10, Package I 0.
⁵ Exhibit 9, Package 1; at pp 1-12.
⁶ Exhibit 5, SIRU Part 2, at p. 22, para 2.
⁷ Ibid, at p. 24.
⁸ Exhibit 9, Package 1, at pp. 13-19.
⁹ Ibid.; and Exhibit 10, Package 2.

All Countries Jamaica

2019 RLLR 48

Citation: 2019 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Veda Rangan
Counsel for the claimant(s): Johnson Babalola
Country: Jamaica
RPD Number: TB7-21735
Associated RPD Number: TB7-21736
ATIP Number: A-2020-01274
ATIP Pages: 000055-000059

REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

[2] You allege the following. In your narrative to the Board, filed with your Basis of Claim (BOC) Form, you state that you grew up in the city of [XXX], Kingston, Jamaica.² On [XXX], 2017, a resident of [XXX] named [XXX] was murdered. A family friend of yours was questioned by the police as a person of interest. This person, named [XXX], accused you of telling the police that [XXX] was likely a suspect. Angered by the allegations against him, [XXX] sent threatening notes to your family while you were visiting your family in Canada. In addition, [XXX] mother also sent similar message to the you and your family.

[3] You testified that at no time, did you tell the police that [XXX] could be a suspect. In your narrative, it is stated that “on [XXX], 2017 [XXX] came to my house and showed me a gun and told me that if he ever gets arrested for anything he didn’t do I would pay a price.” In addition, he made veiled threats against your daughter. Some of [XXX] friends told you that they were waiting for an order from [XXX] to “finish her.”

[4] Fearing for your and your daughter’s safety, you went to stay with a friend in [XXX], St. Catherine. While staying there, [XXX] and his friends visited you. Your friend asked you to leave his premises for the fear that [XXX] would harm him for harbouring you.

[5] Fearing for your safety, you went to another police jurisdiction to lodge a complaint; however, they asked you to go the [XXX] police. Your brother, a [XXX], told you to leave the country as no one could guarantee your safety. You left for Canada for a short stay, hoping that the matter would settle by the time you return. As a result of further threats from [XXX] and his friends, you remained in Canada and made a claim for refugee protection.

[6] You and your daughter testified about the incidents in Jamaica as stated above. In addition, you stated that you and [XXX] went to the same school, and that his brother was killed by the rival gang. You also stated that you didn’t want to go back to the same environment.

DETERMINATION

[7] I find on a balance of probabilities, that you would be subjected personally to a risk to your lives or to a risk of cruel and unusual treatment or punishment, should you return to Jamaica, for the following reasons.

ANALYSIS

Nexus

[8] I have examined your claims under section 97 as there is no nexus to a section 96 ground.

Credibility

[9] Based on the documents in the file, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. You had proffered a letter from [XXX], a Justice of Peace, in which he confirms you to be a resident of [XXX], and that the gangs in your vicinity would consistently invade your premises and use your home as a strategic location to attack other gangs. Your roof was often used as a shooting range. He also noted that you had to leave as your life was in danger.

[10] You had also submitted a letter from [XXX], the person you had stayed with. In his letter, he notes that you and your daughter had stayed with him as you feared harm from the gangs led by [XXX]. After reviewing the documents, I have no reasons to doubt their authenticity.

Nature of the harm

[11] You were threatened at gun point, and the veiled threats made to your daughter created a fear for her safety as a young female. You also feared harm from the gang as you were threatened at gun point and by his friends. You lived in an environment where gang violence was an everyday occurrence. You had accepted this as a way of life but when the threats became personal, you felt the need to move away from the danger. This harm clearly amounts to a risk to your life and that of your daughter.

State protection

[12] I find that adequate state protection would not be reasonably forthcoming in this particular case. You had approached the police when the situation turned serious. However, you received no real help from the [XXX] police. Even your brother, a [XXX], was unable to help you. You had no family in Jamaica who could help or support you.

[13] In the documents provided by you, it states that “residents in [XXX] are so fearful these days, many refused to speak about the mayhem around them. And those who did, ask for their identities to be kept a secret.”³ I have carefully reviewed the documentary evidence and I find that these articles clearly demonstrate that there could be a risk to your life, should you return to Jamaica as you are being perceived as an informer.⁴

[14] The Bertlesmann Stiftung’s 2016 report states that: ‘The state’s monopoly on the use of force is established nationwide in principle, but it is challenged by organized criminal gangs or networks in specific areas.’ The challenge does not, however, constitute a major threat at the national level. The specific areas are not whole parishes or regions but depressed inner-city communities, varying in population size from 3,000 to 20,000, where violence is directed not always against the state or the security forces but against rival gangs and those civilians labeled as “informers.”⁵

[15] In an article by Amnesty International reported on October 2014, it is stated:

Women and girls living in inner-city communities remain particularly exposed to gang violence. They are often victims of reprisal crimes, including sexual violence, for being perceived as having reported or actually reporting criminal activity to the police, or in relation to a personal or family vendetta.⁶

[16] I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances.

CONCLUSION

[17] Based on the analysis above, I conclude that you are persons in need of protection. Accordingly, I accept your claims.

(signed) Veda Rangun

December 2, 2019

¹ Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
² Exhibit 2, Basis of Claim (BOC) Form, TB7-21735.
³ Exhibit 5, Claimant’s Documents, received October 17, 2019.
⁴ Ibid.
⁵ Exhibit 3, National Documentation Package (NDP) for Jamaica, (April 30, 2019), item 4.2.
⁶ Ibid., item 2.2.

All Countries Hungary

2019 RLLR 47

Citation: 2019 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: March 21, 2019
Panel: B. Popatia
Counsel for the claimant(s): Vanessa M. Leigh
Country: Hungary
RPD Number: TB6-18781
ATIP Number: A-2020-01274
ATIP Pages: 000050-000054

[1] MEMBER: [XXX] you are a citizen of Hungary who claims Convention refugee status and refugee protection in Canada based on your alleged well-founded fear of persecution in Hungary for Convention reasons and the alleged risk there to your life risk of cruel and unusual treatment, or danger of torture.

[2] You state that you are at risk of serious harm in Hungary at the hands of various agents of persecution based on your Roma ethnicity, female gender, young age, and family status. You allege that were you to return to Hungary you would continue to experience serious harm without the prospect of effective state protection there.

[3] I determine you to be a Convention refugee. In my view there has been supplied sufficient reliable evidence on which to find that you have a well-founded fear of persecution in Hungary for Convention reasons.

[4] It has been established that there is more than a mere possibility that were you to return to Hungary you would experience the serious harm of persecution, either cumulatively or in isolation, harm that would continue to have on you a substantially prejudicial effect, physically or morally.

[5] I am satisfied that there has been supplied clear and convincing confirmation of the state’s inability or unwillingness to protect you based on your particular circumstances and prevailing country conditions.

Analysis

Identity

[6] I am satisfied that you have the personal, national, ethnic, gender and other identity alleged in the claim. You came to Canada with family and made a refugee claim within weeks of your arrival. You testified in the Hungarian language through an interpreter at the hearing. You provided extensive oral testimony, written documentation and allegations in an affidavit and in your Basis of Claim form that credibly situates you within a Hungarian context.

[7] You state that with the exception of a short period of time in Germany to visit a close family member you have lived only in Hungary and Canada. You came to Canada on your own Hungarian travel document that was issued in 2016. A copy of that document is before me and at the Port of Entry and at the time that you made your refugee claim inland, there does not appear to have been any concern about your nationality as a Hungarian citizen. Extensive personal documentation has also been filed from Hungary.

[8] I’m also satisfied that your Roma background has been established on the balance of probabilities. Here too the testimony and written declarations you have provided situate you within a reliable Roma context.

[9] You have stated that while you don’t know or understand how and why you were identified as a Roma, you testified that it could be because of your dark or brown skin even though you stated that it is not that brown. It is clear, however, that you have been closely associated with Roma persons, including close family members and that you have experienced individual and collective mistreatment, likely based on your Roma ethnicity and at times because of that ethnicity and your female gender and young age. You stated that when a close family member was mistreated, it was as if you were being abused.

[10] You’ve conceded that you did not know the sub-group of Roma that either your mother or father belonged to but stated that they both have Roma background. You also testified that a large number of your family members have come to Canada and somehow or the other have received permanent status in Canada.

[11] Your claim was made with your father and your elder brother. Your father’s claim was disjoined from yours because you were alleging serious harm in Hungary on grounds beyond your ethnic background and that it could be uncomfortable and difficult for you to participate in your hearing with your father present. That request was granted.

[12] You testified about your education and stated that you got to grade [XXX] but because you did not complete one of the final exams, that having to do with language and literature, you would be unable to continue your education in Hungary. While this may have limited basis, I do accept that based on your own personal mistreatment over many years throughout grade school, your family economic and social experience, and other factors, it would be impracticable for you to expect that you would be able to continue your education in Hungary, at least at the university level.

[13] You stated that you believed that your literature teacher was racist and anti-Roma and did not permit you to write the final exam even though a fellow student, a non-Rome was permitted to sit the final exam despite absence for about half the school year.

[14] When counsel asked you if you had been sexually harassed in Hungary you responded affirmatively. It was deemed unnecessary to have you elaborate on that in oral testimony.

[15] I have your written declarations and based on my assessment of your credibility, your identity and other aspects of your claim throughout the hearing, I’m satisfied that more likely than not you have had the gender-based mistreatment alleged.

[16] Your residential identity is also compelling. You testified that on two occasions about a year apart, you, your father and your elder brother were evicted. You testified that your nuclear family has never owned any property in Hungary and that you have only rented accommodation from the city. In your written declarations you have cited at least three or four residential addresses in and around Budapest and you confirmed those street addresses when you gave testimony in the hearing.

[17] You stated that local authorities relocated you from your rental accommodation, promising to allow you to return once the renovations were concluded, but neither you nor any other Roma family were permitted to go back to that renovated building.

[18] You were then evicted from the other building that you had been relocated to and at that time you father, having an interest in fishing, lived in a tent with your elder brother beside the lake. You moved in for a period of time with a friend of yours you described as your best friend. You stated spontaneously that this friend was non-Roma.

[19] You testified that Roma experience mistreatment in the health care system and while your own experience in the health care system appears to have been more positive most times, at least based on your own testimony, you did concede that that would be one of the reasons for you to fear returning to Hungary. If you were able to pay large amounts of money to physicians you would receive medical care but you stated and fear that if you were to return to Hungary based on your age and other circumstances you would not qualify for health and other social benefits.

[20] You testified about your recreational life, street life, life on the street cars and stated that you had been mistreated by groups of racist men and that among incidents of mistreatment, that you and closely situated persons including family members experienced. Your elder brother was thrown off public transit and suffered a concussion but received no police help.

[21] You testified that you fear the police themselves, the very agents one could rely on for protection. When asked why you had this fear you stated that they did not provide any material assistance to you or those you knew. On one occasion although a family member of your experienced mistreatment and made a police report, promises to keep you informed were not met by the police.

[22] Years earlier a close relative experienced serious harm at the hands of her male partner. Despite repeated incidents by him against her, he was given merely a fine for all of that ordeal.

Credibility

[23] I find that you have been a credible witness in the proceeding. You provided testimony spontaneously, directly and with the ring of truth. At times it contained extensive detail. Your testimony conformed with the written declarations in all material areas of the claim. I find that you did not embellish or exaggerate. These are the hallmarks of reliable testimony in my view.

[24] You also maintained eye contact consistently and had a somber disposition in the hearing.

Objective basis

[25] In my view there is a credible objective basis to your allegations. The country conditions documents from wide variety of sources, having no interest in the outcome of your proceeding, indicate that each of the forms of mistreatment you have referred to continues to impact Roma communities in Hungary and that Roma continue to experience serious forms of mistreatment, including discrimination, harassment, humiliation, marginalisation and exclusion in every sector of their civic lives: education, employment, housing, recreation, heath care.

[26] Sources agree and you also stated in various ways, repeatedly throughout the hearing and in your written claim, that Roma experience serious personal insecurity. This is despite periods of serious efforts by the state to improve conditions for Roma and other national minorities in Hungary and to orient front line police officials and other state authorities on providing improved response and assistance to Roma communities and communities of national minorities in Hungary.

[27] In view, although you fear serious physical harm were you to return to Hungary, such as from interactions with street groups, it is sufficient that you fear serious discrimination across the sectors of your civic life and there is a reliable objective basis to those fears. These social and economic risks are such that frontline police cannot be expected to provide protection against, and indeed, no state authority can provide immediate response for such conditions. Extensive social and political change would be required for greater security, in your case in particular.

[28] In my view, were you to return to Hungary, there is more than a mere possibility that you would experience the serious harm of persecution cumulatively. There’s clear and convincing confirmation of the state’s inability or unwillingness to protect you. Accordingly I determine you to be a Convention refugee. The Division therefore accepts your claim.

[29] That’s it for this hearing. Thank you, Mr. Interpreter.

[30] INTERPRETER: Thank you.

[31] MEMBER: Counsel. All the best to you, Ms. XXXX.

[32] CLAIMANT: Thank you very much.

[33] MEMBER: Off the record.

– – – DECISION CONCLUDED – – –

All Countries Democratic Republic of Congo

2019 RLLR 46

Citation: 2019 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2019
Panel: Sarah Cote
Country: Democratic Republic of Congo
RPD Number: MB9-00088
ATIP Number: A-2020-01274
ATIP Pages: 000037-000041

[1] This is the decision for the refugee claim of Mr. [XXX]. The Claimant, [XXX], a citizen of Republic of Congo is claiming refugee protection under Sections 96 and 97.1 of the Immigration and Refugee Protection Act.

[2] The Claimant, that is you, alleges a well-founded fear of persecution for reason of his membership in a particular social group, as being a homosexual man.

[3] The tribunal finds that the Claimant has established that there is a serious possibility of persecution on a convention ground. As for your allegations in support of your claim you allege the following.

[4] You discovered that you were a homosexual at the age of twelve when you kissed a friend or you were kissed by a friend named [XXX] [phonetic] with whom you would continue to have about a three-year relationship. That relationship ended when [XXX] was severely attacked when you both were in a bar and he was attacked because he was perceived as a homosexual man and he was killed.

[5] After that event you tried to commit suicide and it failed. You then left for South Africa in 2008. You also stated that over the years you had been on a number of occasions detained by the police because of your sexual orientation and then released upon the payment of bribes. When you left for South Africa you entered the country illegally with the help of a friend, [XXX] with whom you would have a relationship for a few years. And then [XXX] when he expressed his sexuality to his father you allege that he was killed by his father for his sexual orientation and you feared for your life as well.

[6] You also tried living in Namibia with your brother who works as a pastor and because of his association with you and your sexual orientation or perceived sexual orientation by the community, your brother’s church was attacked. Your sister-in-law was also attacked. Her car was attacked and they were threatened and pointed at as performing demonic activities because of your association with them and the fact that you are a homosexual man.

[7] You fear should you return to the Republic of Congo the police, the community which you describe as homophobic that would randomly attack you knowing or perceiving your sexuality. And you also fear the family of your deceased boyfriend which who attacked your family after [XXX] death and also would hold you responsible for the death of their son.

[8] As for your identity I find that your identity has been established through the copy of your Congolese passport on file.

[9] As for credibility the tribunal is bound by the principle laid out in Maldonado whereby a refugee Claimant swears that certain facts are true this creates a presumption that they are true and unless there is a valid reason to doubt their truthfulness. The tribunal did not find any relevant inconsistencies, omissions or implausibilities that weren’t reasonably explained or that would lead it to draw negative conclusions regarding your credibility as to your sexual orientation as a homosexual man.

[10] In support of your allegations regarding your sexual orientation you had a few supporting letters. You also have a copy of your social media activities which contain photos but also homophobic remarks that are made against you. And you also had a witness that was ready to testify today but since your testimony was found to be very creditable by the board the tribunal did not think it would be necessary today to hear your witness.

[11] As for testimony, I find that you had a very forthcoming and creditable and spontaneous testimony. You did not try to embellish your testimony and as your lawyer asked you more questions more details arise but it was plain to see that you have lived through some very difficult times and the reminiscing of all these events was emotional at some points and difficult. And this made your testimony very creditable.

[12] You were able to speak about how you discovered your sexual orientation or you felt different as a child and that your gender expression is different as you said that people told you that you acted like a girl and ostracized you in school and you had a very hard time because of it. You also were able to speak about your relationship with [XXX] and the incident that led to his death.

[13] As for the time spent in South Africa you were able to reasonably explain why you were not able to stay there with the death of your partner, [XXX], by the hands of his father and xenophobic climate that made you fear for your safety. And you tried to have a better life in Namibia which turned out to be even harder for you in terms of safety because of your sexual orientation.

[14] Your allegations are supported by the documentary evidence so the National Documentation Package for the Democratic Republic of Congo, the U.S. country report indicates that there is no law that specifically prohibits homosexuality or homosexual conduct but article 330 of the Penal Code of the DRC proscribes imprisonment for three to two years and a fine for those who commit public outrage against decency and this is used by the police officers to persecute the LGBT community in Congo, in the DRC.

[15] The National Documentation Package also indicates that there is a law that is being studied to criminalize officially homosexuality in the DRC and sexual minorities in this country are stigmatized and ostracized by the general population. They cannot have access to normal schooling as you have also told us about today. They have difficulty obtaining work, access to credit, or other financial or economic means.

[16] The sexual minorities in the DRC are also victimized by the security forces of the state and are arbitrarily detained, are attacked physically and sexually and threatened. There are no support systems for sexual minorities in Congo, in DRC as you have also told us and this is seen in the National Documentation Package.

[17] As for state protection and the internal flight alternative. Since state protection is not available as the police themselves persecute homosexuals and the LGBT community the tribunal finds that you would not obtain state protection from the Congolese authorities and they are an agent of persecution.

[18] As for the IFA, the tribunal finds that you cannot be expected to deny your sexual orientation to live in your country and no matter where you would reside you would continue to have your sexual orientation and it would cause problems across the country so there is not viable IFA for you.

[19] In conclusion, the tribunal having analyzed the evidence as a whole finds that you have discharged the burden of establishing that there is a serious possibility that you would be persecuted on a Convention ground and therefore the tribunal concludes that you, [XXX] are a “Convention Refugee”. Thank you.

All Countries El Salvador

2019 RLLR 45

Citation: 2019 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: Nicole Ginsberg
Country: El Salvador
RPD Number: MB8-25771
ATIP Number: A-2020-01274
ATIP Pages: 000030-000036

[1] This is the decision of the Refugee Protection Decision in the claim for refugee protection of [XXX], file number MB8-25771. Ms. [XXX], you are claiming refugee protection in Canada pursuant to section 96 and sub-section 97(1) of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case, and I am prepared to render my decision orally. A written version of this decision will be sent to you by mail at a later date.

DETERMINATION

[2] I find that you face a serious possibility of persecution in El Salvador on the basis of your membership in a particular social group as a lesbian woman. I therefore find that you are a “Convention refugee” pursuant to section 96 of the Act and I accept your claim. In coming to this conclusion, I have considered the Chairperson’s guideline number nine on sexual orientation and gender identity and expression. My reasons are as follows.

ALLEGATIONS

[3] Your allegations are contained in your Basis of Claim form, including the narrative your attached and the amended narrative that you submitted subsequently, both of which are found at document two of the evidence. In summary, you fear your former co-worker [XXX] (phonetic) will make good on the death threats he has been making about you as a result of being fired from your place of work. You also allege that as a lesbian who presents in a way you described as being masculine, you are not and will not be accepted by El Salvadorian society generally and your human rights are not respected there. You explained the death threats you suffered from [XXX], the danger he poses to you because of his particular profile, and the adverse treatment of same-sex relations and of LGBTQ people in El Salvador generally, including the lack of regard for LGBTQ rights by El Salvadorian authorities and the unwillingness of the authorities to protect LGBTQ persons there.

[4] You allege that you are a lesbian and have been in a same-sex relationship with a woman, [XXX], I’ll… I’ll spell that now [XXX]. Is that correct? Ok. For over 11 years, since [XXX] 2007. Your relationship continues to this day. You allege that you have suffered harassment and ill treatment in El Salvador from as far back as 2004 as a result of your perceived sexual orientation and have had to live in fear that people would find out. You relayed several incidents of having endured insults and threats from strangers as a result of being perceived as a lesbian, to the extent that you have feared for your life. You explained that same-sex relationships are not accepted in El Salvadorian society generally and the authorities demonstrate an unwillingness to help LGBTQ people. You allege that you have had to keep your sexual orientation secret and that you come from a religious family that does not accept same-sex relationships. Your mother does not accept your being a lesbian, and your father told you that if he found out one of his children was homosexual, he would poison their soup.

[5] You allege that as a [XXX] at [XXX] in La Libertad, you told an employee’s supervisor about his lack of respect for work hours and that this person, XXXX, lost his job as a result. He began harassing and insulting you based on your sexual orientation and he showed another coworker a gun that he said he intended to use on you. You allege the death threats must be taken seriously in a country whose security situation is as precarious as El Salvador’s, particularly as an LGBTQ woman who cannot rely on the protection of the police. And, that [XXX] is known to have… to take part in criminal activity and has family political ties. You fled El Salvador on [XXX], 2018, soon after the threats from [XXX] began, and came to Canada where you made your claim for refugee protection.

ANALYSIS

IDENTITY

[6] Your personal and national identity as a citizen of El Salvador is established on a balance of probabilities by your testimony and by the documentary evidence on file, including a copy of your El Salvadorian passport at document one.

NEXUS

[7] Your allegations establish a nexus to the Convention ground I identified earlier and I have therefore analyzed your claim pursuant to section 96 of the Act.

CREDIBILITY

[8] Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this claim, I have no such reason. I find you to be a credible witness. You testified today to be a straightforward, open and sincere manner. You were spontaneous in your answers to my questions, and I do not find that you tried to embellish or exaggerate your allegations during your testimony. You testified credibly and in detail during the hearing about your attraction to women, how you came to realize that you were somehow different, as you say, as a child, and your attraction to women and girls in your adolescence. You testified credibly about your relationship with [XXX], how you met, how your relationship changed from being co-workers to being romantic partners, and about how you had to carry on your relationship in secret, with people believing you were roommates.

[9] You further testified credibly about your life in Canada as an openly lesbian woman, and the freedom you have found to express yourself, in particular to dress in a way to you have described as masculine. You explained how your job at a men’s suit retailer is your dream job because you finally are able to wear a suit and tie to work everyday. You testified credibly about the treatment of lesbians and LGBTQ people in El Salvador, in law and society. Specifically, you explained that people don’t want to see LGBTQ people for who they are, and often treat them as invisible. The authorities don’t take their complaints seriously. It would be… It would not be safe to be out in the open about a same-sex relationship there or to express oneself with a gender expression not considered binary or mainstream. Your testimony was consistent with the allegations in your Basis of Claim form, and also included some more specific details that were not contained in your Basis of Claim form, but these details allowed me to better and more fully understand your claim.

[10] You further provided corroborative documentary evidence in support of your allegations. Several… well… Including the following. Photos of you and your partner and your dogs, who you explained are like your children, at exhibit 1… C-1. Photos of you at pride events, also at C-1. Photos of you dressed for work at the [XXX] at which you work in Canada in the same exhibit. Letters from LGBTQ organisations in Canada concerning your involvement, including the women’s choir and a Valentine’s dance from exhibits C-2 to C-6. Sworn statements from three coworkers from [XXX] concerning the threats by [XXX] at exhibits C-15 to C-17. A letter of employment from [XXX] at C-14, declaration of cohabitation with [XXX] at C-13, and several articles concerning the situation of LGBTQ people in El Salvador at exhibit C-20 through C-23. There were… There were no relevant contradictions, inconsistencies, omissions between your Basis of Claim form, your testimony at the hearing and the documentary evidence on file.

OBJECTIVE BASIS

[11] Your allegations are consistent with the objective country documents before me concerning the treatment of lesbians in El Salvador. For example, although we see same-sex relations are not criminalized in El Salvador, as we see from the objective documentary evidence, for example in tabs 2.1 and 6.3, there are some laws prohibiting discrimination based on sexual orientation and gender identity enforced in the country including in regards to housing, employment, nationality and access to government services. However, the objective documentary evidence is clear about the significant legal vacuums that exist for the protection of LGBTQ people in El Salvador. There is widespread stigmatisation of LGBTQ people, and no general non-discrimination law to protect marginalized people in El Salvador. That’s found at tab 6.3. The objective documentary evidence indicates that El Salvador LGBTQ people are particularly exposed to violence in El Salvador which is linked to the discrimination they face on various fronts in their family life and working life, and it’s part of society generally. This relates to not only sexual orientation but gender expression as well. This is particularly troubling in El Salvador as it is among the most violent countries in the world. This is at tab 6.1 of the National Documentation Package. There is no official government data on hate crimes or bias motivated violence against LGBTQ people in El Salvador, but the evidence is replete with examples of violence against LGBTQ people and a lack of will on the part of the State to bring perpetrators to justice. That’s found at tab 6.3. The evidence also points to grave deficiencies in the country’s justice system and a lack of access to justice for LGBTQ people.

[12] Not only do they face obstacles in reporting crimes against them because of the widespread social stigmatisation and the lack of acceptance, including within law enforcement, perpetrators often face impunity in cases of violence, that is at tab 6.3. This document also discusses the bias against the LGBTQ community that is prevalent within the police and justice sectors themselves. One cannot forget the background against which violence against LGBTQ community members occurs in El Salvador, that has been described as the murder capital of the world with a rate of 116 murders per 100 000 people in 2015. That’s also at tab 6.3.

[13] The claimant has also provided… or, pardon me, you have also provided documentary evidence concerning the human rights situation of the LGBTQ community in El Salvador, the lack of police protection, and incidences of violence against the community. The research pieces at tab 6.2 also discusses in detail the pattern of systemic discrimination and violence against the LGBTQ people by the Salvadorian law enforcement itself. For all of these reasons and country conditions, I find you to be credible. I therefore find you’ve established on a balance of probabilities that you are a lesbian, that you were subjected to death threats at the hands of your former co-worker [XXX], and that you have otherwise experienced harassment and mistreatment in El Salvador as a result of your sexual orientation and it can also be said as a result of your gender expression. I also find that you have demonstrated subjective fear in El Salvador, that in view of the objective country evidence, is objectively well-founded.

STATE PROTECTION

[14] I find that you have rebutted the presumption of State protection with clear and convincing evidence that the Salvadorian state would be unable or unwilling to provide you with adequate protection. The documentary evidence is replete with information about the risks facing people of the LGBTQ community in El Salvador and the lack of State protection for such people, including a widespread pattern of systemic discrimination and violence by law enforcement itself. This is found most pointedly at tab 6.2 as well as the country documents submitted by you. In addition, I have discussed above the legal vacuums that exist to protect LGBTQ people in El Salvador, including the absence of a general non-discri… discrimination law and a lack of enforcement of violent crime and harassment against LGBTQ people. For all of these reasons, I find that you have rebutted the presumption of State protection.

INTERNAL FLIGHT ALTERNATIVE

[15] I find that you face a serious possibility of persecution throughout El Salvador as a result of the widespread stigmatisation of same-sex relations through El Salvador, the legal vacuums and lack of willingness from police to protect LGBTQ people, and moreover, the pattern of discrimination and violence actually perpetrated against LGBTQ people by law enforcement itself. The violence and lack of regard for human rights of LGBTQ people persists throughout the country, as does the lack of State protection. You have also testified credibly that people have explained to you [XXX] criminal involvement, his political connections through his father and his pattern of impunity from offenses like drunk driving because of those connections. Moreover, you would not be expected to ignore your sexual orientation if you were to return to El Salvador. I find that if you were to live your life as a lesbian in El Salvador, particularly one who presents in a way that you describe as masculine, you would face a serious possibility of persecution at the hands of members of the public, the authorities and [XXX]. Because you have a serious possibility of persecution anywhere in El Salvador, I will not analyze the second prong of the… of the IFA. For all of these reasons, I find that there is no viable internal flight alternative for you in El Salvador.

CONCLUSION

[16] For all of these reasons, I find that you have established on a balance of probabilities that you have a subjective fear of return to El Salvador that is objectively well-founded. Having considered all the evidence, including your testimony, I find that you, [XXX] face a serious possibility of persecution in El Salvador on the Basis of your membership in a particular social group as a lesbian. I therefore find that you are a “Convention refugee” pursuant to Section 96 of the Act and I accept your claim. So, this concludes your hearing.