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