Category: Nepal

Citation: 2022 RLLR 18
Tribunal: Refugee Protection Division
Date of Decision: February 10, 2022
Panel: Kay Scorer
Counsel for the Claimant(s): Ramesh Karkee
Country: Nepal
RPD Number: VC1-07330
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence before me and I am prepared to provide you with my decision orally.  These are the reasons for the decision in the claim of  XXXX XXXX, a citizen of Nepal, who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.  In rendering my reasons today, I have considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution.

Allegations

[2]       The claimant’s allegations are contained in full in her Basis of Claim form and very detailed narrative which can be found in Exhibit 2.  Summarized only briefly, the claimant alleges that she is at risk of persecution in Nepal from persons associated or affiliated with Maoist groups because of her involvement with and support of the Nepal Women’s Association which is women network of the Nepali Congress Party.  The claimant is a known women’s rights activist in Nepal.  The claimant alleges that she has been threatened, extorted and physically attacked by Maoist persons in the past and that the attackers continue to pursue her in that country.

Determination

[3]       I find the claimant is a Convention refugee.  I find the claimant has established her claim has a nexus to the Convention ground of political opinion.  I have therefore assessed this claim under section 96 of the Act.

ANALYSIS

Identity

[4]       I find the claimant has established her identity on a balance of probabilities by her testimony and by the copy of her passport which can be found in Exhibit 1.

Credibility

[5]       Pursuant to the Maldonado principle, the claimant benefits from a presumption that her allegations are true.  In this case, I have no reason to doubt the truthfulness of the claimant.  She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me.  She was detailed, passionate, consistent, forthcoming.  Overall, I found the claimant to be a compelling witness and I believe what she has alleged.

[6]       The claimant also supported her allegations with significant evidence,  including plenty of identification documents, certificates for work and promoting the rights of women in Nepal and for her involvement in politics, photographs of the claimant at political events including events where she was receiving honours, membership documents for the Women Network of the Nepali Congress Party, a copy of a press release by the Nepali Congress Party relating to the claimant’s work in Nepali, a threat letter from a communist party of Nepal, police report, medical records, and a supporting statement from the claimant’s husband.  I have no reason to doubt the authenticity of these documents.  I assign them significant weight as they help establish the material elements of the claimant’s allegations, namely her political opinion and the risks she faces in Nepal on the basis of this opinion.

[7]       I have considered whether the claimant’s failure to claim in Canada and her subsequent twice return to Nepal undermines the credibility of the claimant’s subjective fear and I find it does not.  The claimant made two trips to Canada before her current trip where she made her claim for protection.  She first arrived in Canada in XXXX 2018 and returned to Nepal in XXXX 2018.  On the second trip, she arrived in Canada in XXXX 2019 and again returned to Nepal in XXXX 2020.  The claimant finally fled for the last time in XXXX 2020.

[8]       The claimant testified that her first return was because her visa had run out in Canada and she was hopeful the situation would have tempered in Nepal after a period of time had passed.  She states she was hopeful because there had been no indications that Maoist persons had been pursuing her since leaving Nepal.  Further, the claimant testified that her second return was because her husband had been in a serious motorcycle accident and she had no choice but to return to care for him and her family.  She also testified to having read about Maoist members being arrested by the state.  During the last trip to Nepal, the claimant took efforts to minimize her movements.  Unfortunately, it was during this second trip when the claimant herself was viciously assaulted and hospitalized by Maoist persons.

[9]       While it is disappointing that the claimant would return to a country that she fears, I find that ultimately the evidence before me does establish on a balance that the claimant subjectively fears a return to Nepal and that she has been targeted by Maoist factions for her political activism.  On a balance of probabilities and in considering the circumstances of this case, I find it reasonable that the claimant would be hopeful that the situation would become safer in Nepal.  I also accept that she believed, however misplaced, that her risk had subsided at the time that she returned for the first time.  Obviously, for me it’s clear that she’s passionate about the work she does in Nepal.  I also find that in the face of an exceptional family emergency, her return to care for her husband and her family was reasonable.  I do not make a negative inference against the claimant for her failure to claim in Canada earlier or for her return to Nepal in light of the circumstances of this case.

[10]     I find the claimant has established her subjective fear and risk profile on a balance of probabilities.  I find the claimant is a political activist in Nepal and a supporter of the Women’s Association and vis-a-vie the Congress Party.  I find she has a higher profile, given she has been publicly acknowledged for her political work.  I find she has been targeted by Maoist persons threatened, assaulted and extorted.  Further, I find these agents of persecution do continue to pursue and threaten the claimant in Nepal and that she fears persecution by these groups should she return.

Objective Basis

[11]     The country condition evidence is outlined in the National Documentation Package (NDP) which is in Exhibit 3 and supports the claimant’s allegations regarding the treatment of political members of the Nepal Congress such as the claimant herself.  In Item 4.7 of the NDP, sources report that factions of Maoists described as a dissenting splinter group from the ruling Maoist party engaged in a pattern of kidnapping and extortion against various targets.  Item 4.6 of the NDP likewise details instances of violence and extortion committed by a number of groups in Nepal, including the youth communist league which the claimant spoke about today and the Nepal Communist Party of Maoist individuals.  It goes on to note that political pressure and corruption means that law enforcement is largely not able to serve the public or protect them.  These attacks were often against supporters of the Nepali Congress Party like the claimant herself.

[12]     According to Item 4.4 of the NDP, political incidents were the primary driver of violent incidents in Nepal and also made up the majority of non-violent incidents.  This report notes activities by Maoist splinter groups to attempt to disrupt the election processes.  Moreover, as of 2019, the situation in Nepal is growing worse with an increase of both violent and non-violence incidents.

[13]     According to an RIR at Item 4.7 of the NDP, a hard line communist faction of Maoists have been involved in kidnapping and extortion.  The faction of Biplav Maoists make coercive demands for donation.  The extent is under-reported as victims do not seek — often do not seek the assistance of police out of fear of a violent backlash from the Maoist groups.  Party cadres have made threatening visits, phone calls and sent letters and texts seeking funds.  Biplav Maoists have also captured land from civilians and companies.

[14]     Given these country conditions and how they do corroborate material elements of the claimant’s allegations herself, I find the claimant’s fear of persecution because of her political opinion has an objective basis and is well-founded and forward facing.

State Protection

[15]     There is a presumption that countries can protect their citizens unless there’s clear and convincing evidence otherwise.  In this case, based on the aforementioned objective evidence, I find that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection.  As another example, Item 1.6 of the NDP states “police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers.  Nepali police agencies are hindered by a lack of adequate transportation, training and equipment”.  NDP Item 1.6 also states that many Nepalese have only limited access to justice and that courts are vulnerable to political pressure, bribery and intimidation.

[16]     In light of the circumstances and based on the objective evidence, I find that the adequate state protection would not be forthcoming to the claimant in Nepal.  I note that the claimant did seek state protection on a number of occasions and the country condition evidence that I’ve already cited applied in her case as well.  I find the presumption of state protection therefore has been rebutted.

Internal Flight Alternative

[17]     I have also considered whether there is a viable Internal Flight Alternative available to this claimant.  Based on the evidence in this file including a lack of reasonable state protection persisting throughout the country and the Maoist influence that continues also throughout the country, I find the claimant faces a serious possibility of persecution throughout Nepal.  Further, I find the agents of persecution have demonstrated an ongoing motivation to continue to pursue this claimant in Nepal.  I find, therefore, that she does not have a viable IFA in that country.

CONCLUSION

[18]     Based on the foregoing analysis, I find the claimant is a Convention refugee and I accept her claim.

——— REASONS CONCLUDED ———

Citation: 2020 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: July 7, 2020
Panel: Avril Cardoso
Counsel for the Claimant(s): Atul Subedi
Country: Nepal
RPD Number: TB8-19093
Associated RPD Number(s): TB8-19105, TB8-19141, TB8-19142
ATIP Number: A-2021-00800
ATIP Pages: 000092-000099

REASONS FOR DECISION

[1]       [XXX] (the principal claimant), [XXX] (associate claimant), [XXX] (adult claimant) and [XXX] (minor claimant) claim to be a citizen of Nepal and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“the Act”)^[1].

ALLEGATIONS

[2]       The claimants’ allegations are fully set out in their Basis of Claim forms (BOC)^[2]. In summary, the principal claimant alleges a fear of persecution in Nepal because of his political membership and active support of the Nepali Congress (NC) party. The associate, adult and minor claimants allege a fear of persecution because of their imputed political opinion as members of the particular social group of family.

[3]       The principal and associate claimants are spouses. The adult and minor claimants are their children.

DETERMINATION

[4]       I find that the claimants are Convention refugees pursuant to section 96 of the Act.

ANALYSIS

Identity

[5]       The claimants’ personal and national identities as citizens of Nepal have been established on a balance of probabilities by true copies of their passports^[3], marriage certificate and Nepali citizenship certificates for the principal and associate claimants, birth certificates for the adult and minor claimants, a relationship certificate for all claimants^[4] and oral testimony.

Credibility

[6]       When a claimant swears that certain facts are true, this creates a presumption of truth unless there is valid reason to doubt their veracity.

The principal claimant was an active member of the Nepali Congress (NC) party

[7]       The principal claimant testified that he has been involved with the Nepali Congress (NC) party since 1990.

[8]       He correctly identified the date when the NC party was founded and accurately described its ideology as embracing nationalism, federalism and socialism. The principal claimant also testified about his political activities in the NC party.  He identified the current NC party leader as Sher Bahadur Deuba and said he was politically active since his childhood and was against the previous Panchayat System. He testified that the party leader had been detained for eight years for his political beliefs and was tortured including through electric shock on his tongue which has resulted in a speech impediment. The principal claimant said he was inspired by the party leader and wanted to advocate for democracy in Nepal.

[9]       The principal claimant testified that he distributed pamphlets door to door in [XXX] 2008 to promote the NC party and also organized public meetings to further disseminate information about the party and its quest for democracy. He testified that he supported a candidate in the [XXX] 2017 election, invited media to speeches and also expressed his political views about the need for peace and prosperity which could be accomplished by electing an NC government and could not be accomplished through a communist regime.

[10]     I find, on a balance of probabilities that the principal claimant is an active member of the NC party. His testimony was detailed and spontaneous and he provided additional details in a natural manner and without hesitation when asked to elaborate about his responses. In support of his testimony he submitted a membership letter and a letter from the NC party Chief Secretary attesting to his membership and providing details about his political activities which are consistent with the principal claimant’s other evidence^[5].

The principal claimant was harassed and assaulted by members of the Biplav Maoists

[11]     I find that the principal claimant was harassed and threatened by Biplav Maoists in late [XXX] 2017. The principal claimant testified that after he expressed his views against the communist regime, in late [XXX] 2017 Biplav Maoist cadres came to his place of business demanding that he stop campaigning for the NC party and asked him to pay a donation of [XXX] rupees as a penalty for his actions. He said he told them he did not have that amount of money but had [XXX] rupees on the premises which he said they accepted. The principal claimant said he reported this incident to the police but was told that this was a political issue and the police could not help him. The principal claimant’s testimony was detailed, without embellishment and materially consistent with his narrative.

[12]     I find that the principal claimant was harassed by Biplav Maoist supporters and cadres in [XXX] 2018. He testified that he owned farmland in the Nawalparasi district and visited the property as he was planning to launch a farming project. The principal claimant testified that when he arrived he found people occupying the land who informed him that the Biplav Maoists gave the land to them and they refused to leave. The principal claimant said he reported the incident to the local police who told him that this was a political matter. When he returned to Kathmandu, he said he contacted his minister of parliament who directed him to report the occupation of his farmland to the police in Kathmandu and also told him that he would escalate the issue. The principal claimant testified that Biplav Maoist cadres came to his office later in [XXX] 2018 and harassed him about his anti-communist actions and said they believed he was a [XXX] and therefore should be able to pay [XXX] rupees as a donation.  The principal claimant said that the told the cadres he needed a week to pay such a [XXX] amount. He said that the police then contacted him to identify two Biplav Maoist cadres who they had arrested based on the principal claimant’s complaint.  The principal claimant testified that the cadres who had been arrested were subsequently released. The principal claimant’s testimony was materially consistent with his narrative however there was a minor discrepancy with some of the dates. It was apparent that the principal claimant was nervous and he was able to clarify the discrepancy in a spontaneous and natural manner. Therefore this minor inconsistency did not impugn his credibility. The principal claimant also submitted a police report to corroborate his testimony^[6].

[13]     I find that the principal claimant was kidnapped and assaulted on [XXX] 2018 by Biplav Maoists. The principal claimant testified that on [XXX] 2018 at 6:30 p.m. he was alone in his office as the staff had already gone home. He said that Biplav Maoists cadres came to his office and under threat of gunpoint took him to an isolated house where he was threatened by the group leader. He said he was told that the Biplav Maoists kill those who do not comply with their directions and they demanded [XXX] rupees as a donation.  The principal claimant said he was very scared and panicked and was allowed to call his wife to obtain part of the payment for his release. He said his wife was able to gather the money and he signed a document and was released at a different location. The associate claimant testified that she was able to gather [XXX] rupees from relatives and from a recent [XXX] transaction. She testified that she went to the location for the exchange by motorbike and picked up her husband there and took him to the doctor for medical treatment as he was injured. The principal claimant’s testimony was detailed and consistent with his narrative.  He provided additional details about the kidnapping and assault in a spontaneous manner and without embellishment. The associate claimant’s testimony was also detailed and she provided additional details in an unhesitating manner. The principal claimant submitted a donation receipt for [XXX] rupees and a medical report regarding injuries he sustained to corroborate his testimony.

Subjective fear: Moved to a relative’s house, did not return to business

[14]     The principal claimant testified that the minor claimant, his youngest daughter said she did not want to attend school. He said she told him she was being followed. The principal claimant testified that the family relocated to a relative’ s home about 25 minutes away because he had heard the Biplav Maoists abduct children to extort donations. He also testified that since the [XXX] assault he did not return to his place of business and closed it down. The claimants also left Nepal on [XXX] 2018.

[15]     I find that the conduct of the claimants is consistent with subjective fear. The principal claimant closed down his business after the [XXX] 2018 assault and kidnapping and the family relocated on [XXX] 2018 after the minor claimant was followed. The claimants also left Nepal promptly about a week after the kidnapping.

Objective Basis

[16]     The objective evidence is consistent with the claimants’ account of fearing persecution because of their actual and imputed political opinion^[7].

[17]     Item 2.1^[8] of the objective documents indicates that while elections were generally well conducted, there were reports of violent incidents including individuals being killed by the police and reports of interparty clashes and assaults.  According to item 4.4^[9], political incidents were the primary driver of violent incidents and made up the majority of the non-violent incidents. This report also notes activities by the CPN-Chand Maoists to attempt to disrupt the election process.

[18]     Item 1.6^[10] indicates that a diverse array of political parties operate in Nepal although the system has faced considerable instability in recent years. This report also states that political opponents of the Maoists do not generally face violence because Maoists have the potential to control the national agenda without resorting to violence. However this report does not specify whether this applies to the CPN Maoists or Biplav Maoists who are a splinter group from the Nepal Communist Party currently in power.

[19]     As well, the claimant’s counsel provided numerous articles about the wide reach and violent activities perpetrated by the Biplav Maoists including extortion similar to the kind the principal claimant describes in his BOC^[11].

[20]     I find that the claimants’ fear of persecution because of their actual and imputed political opinion has an objective basis and is well-founded.

State Protection

[21]     A state, unless in a condition of complete breakdown, is presumed to be 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.

[22]     The objective documents indicate that historical claims of abuses by the Maoists remain unsolved and there is a prevailing climate of impunity in part because senior government officials have the potential to shield leaders of major political parties from prosecution and investigation. This report further states that police effectiveness is limited by lack of resources, corruption, nepotism and a culture of impunity especially among low level officers^[12].

[23]     Based on the personal circumstances of the claimants as well as the objective country documentation, I find that they have rebutted the presumption of state protection and state protection would not be reasonably available to them in their particular circumstances. The principal claimant sought the assistance of the police on multiple occasions without any reasonable protection being made available to him.

Internal Flight Alternative (IFA)

[24]     The test to be applied in determining whether there is a viable IFA is two-pronged, and both prongs must be satisfied for a finding that a claimant has a viable IFA. First, I must find on a balance of probabilities that there is no serious possibility that the claimants would be persecuted in the part of the country in which I find an IFA exists. Secondly, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants for them to seek refuge there.

[25]     The objective evidence indicates that the Biplav Maoists (CPN) have a presence in all 77 districts of Nepal and have mobilized across the country. Further there is a nationwide crackdown by the government against this group^[13] as well as reports of violence perpetrated by the Biplav Maoists in the IFA locations proposed.

[26]     Therefore I find there a serious possibility of persecution in the country and there is no IFA available to the claimants in Nepal as the Biplav Maoists are present throughout the country and would be motivated to find them. The evidence demonstrates that the Biplav Maoists sought the claimant in Kathmandu where his primary business was located, followed his younger daughter (minor claimant) and knew about the principal claimant’s activities in Nawalparisi, some distance away from his home.

CONCLUSION

[27]     Having considered all of the evidence, I find that there is a serious possibility that the claimants would face persecution in Nepal. I find that the claimants are Convention refugees and I accept their claims.

^[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

^[2] Exhibits 2, 3, 4 and 5

^[3] Exhibit 1

^[4] Exhibit 11

^[5] Exhibit 11

^[6] Exhibit 11

^[7] Exhibit 3

^[8] Exhibit 8, Item 2.1

^[9] Exhibit 6, Item 4.4

^[10] Exhibit 6

^[11] Exhibit 8

^[12] Exhibit 6, Items 1.6 and 4.7

^[13] Exhibit 8, page 46

Citation: 2020 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: March 2, 2020
Panel: Diane L. Tinker
Counsel for the Claimant(s): Larry Butkowsky
Country: Nepal
RPD Number: TB8-07438
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000082-000086

REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, [XXX] is claiming to be a citizen of Nepal. The claimant claims to have a well-founded fear of persecution at the hands of the splinter Maoists, a group called the Biplav in Nepal under sections 96 and 97(1) of the Immigration and Refugee Protection Act^[1] (IRPA).

ALLEGATIONS

[2]       The claimant alleges that he and his family have been involved in Nepali politics, namely the Nepali Congress, one of the oldest political parties in Nepal for many years. The claimant joined the youth wing of the Nepali Congress while a student. The claimant first had trouble with the then Maoist party while he was a [XXX] in [XXX] 2003 as he was kidnapped and told to teach what the Maoists believed in. The claimant left the country and went to work on an [XXX] in Iraq for a number of years. The claimant returned to Nepal in 2010 since the Maoists had ended their war. The claimant rejoined the Nepali Congress party and commenced [XXX] again. Eventually, the claimant rose through the ranks and ended up in [XXX] 2017 of becoming a [XXX] to [XXX]the number of [XXX] who were abducted, tortured and killed by the Maoists. However, as a result of his involvement with this [XXX] and which had been publicized in Nepali newspapers, the claimant started to receiving threatening telephone calls from a splinter group of the Communist Maoists, the Biplavs. The claimant then received letters from the Biplavs demanding money and for him to join their party. The claimant went to the police as a result of the threats but nothing was done. On [XXX] 2017, the claimant was beaten which required hospitalization and again threatened by the Biplavs. Again, the police were contacted by nothing was done. The claimant had applied for a Canadian visitor’s visa in [XXX] 2017 but was rejected. The claimant then hired an agent who secured a visitor’s visa to France and Italy with the intent of then proceeding to Canada. The claimant went to the aforementioned countries on [XXX] 2017 and unable to secure a Canadian visitor’s visa at that time, returned to Nepal on [XXX] 2017. The agent was then able to secure a Canadian visitor’s visa and the claimant arrived in Canada on [XXX] 2017 and filed for refugee protection in [XXX] 2018.

DETERMINATION

[3]       I find that the claimant is a Convention refugee for the following reasons.

ANALYSIS

Identity

[4]       The claimant’s oral testimony and the supporting documentation^[2] establish that he is a citizen of Nepal.

Credibility

[5]       I find that the claimant to be a credible witness and therefore accept what he has alleged in his oral testimony and in his Basis of Claim form.^[3] I find that the claimant’s testimony was straightforward and in keeping with his Basis of Claim form with a very detailed narrative and I noted no contradictions, inconsistencies or omissions in his testimony.

[6]       The claimant provided extensive documentation^[4] including documents pertaining to his membership in the Nepali Congress party, employment as a [XXX] medical and police reports as well as newspaper articles confirming his job as a [XXX] the disappearance and killings of [XXX] by the Maoists.

[7]       I therefore find that the claimant was a member of the Nepali Congress political party, that he was [XXX] the disappearances and killings of [XXX] by the Maoists in Nepal and as a result, was targeted by the Biplav faction of the Maoists was threatened and physically assaulted by them.

[8]       This claim is therefore being assessed under section 96 of the Immigration and Refugee Protection Act.

Objective Country Documentation on Persecution

[9]       The claimant had indicated in his testimony that he had contacted the police on three occasions concerning the threats made by the Biplav Maoists with no response.

[10]     The National Documentation Package for Nepal^[5] states that state protection for victims of extortion is largely incapable and increasingly so in the aftermath of the earthquakes. This same document states that the Biplav Maoists are involved in extortion, kidnapping and capturing land from opponents. In the documentation provided by counsel,^[6] numerous newspaper articles from 2015 into the early 2018 confirm many aspects of the claimant’s testimony. These articles state that the Biplavs have taken responsibility for many bombs, killing government officials and business leaders in Nepal as well as attacking candidates from other political parties with basically impunity. The Biplavs maintain that they want to seize power in Nepal and will do whatever to obtain it.

State Protection and Internal Flight Alternative (IFA)

[11]     I therefore find that state protection and an internal flight alternative is not available to the claimant as a member of the Nepali Congress and an [XXX] into the killings of [XXX] by the Biplav Maoists. The claimant and his family did move from their home to Kathmandu and were contacted by the Biplavs on more than one occasion. The claimant indicated that his wife is still being harassed by the Biplavs although she has moved to a different location in Kathmandu.

CONCLUSION

[12]     I therefore determine that the claimant is a Convention refugee. The Refugee Protection Division therefore accepts his

^[1] The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).

^[2] Exhibit M-1, Photocopy of claimant’s Nepalese passport; Exhibit C-7 Academic certificates.

^[3] Exhibit C-2, Basis of Claim form

^[4] Exhibit C-7, Membership card of Nepali Congress party, employment documents, medical and police reports, newspaper articles.

^[5] Exhibit R-3, NDP for Nepal (April 30, 2019), item 4.7.

^[6] Exhibit C-6 Counsel’s country documentation.