Citation: 2020 RLLR 99
Tribunal: Refugee Protection Division
Date of Decision: January 16, 2020
Panel: Michelle Dookun
Counsel for the Claimant(s): Jean Marie Vecina
Country: Eritrea
RPD Number: TB8-10302
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000091-000094
DECISION
[1] MEMBER: So, Sir, I know that you have been through this process in the past in the United States and just like the judge in the United States, I’m going to give you my decision orally right now. But, unlike the judge in the Unites States, I am not going to reject your claim. So based on the information I have in front of me Sir, I understand that, sorry, Mr. Interpreter, I’m just going to put you on mute so I can’t hear you. That way you could interpret simultaneously without being interrupted by me, ok?
[2] Interpreter: Ok.
[3] Member: Leave the marker for me, it’ll matter on that side, ok?
[4] Interpreter: Ok.
[5] MEMBER: So Sir, based on the information that I have in front of me, you are a [XXX] year-old male citizen of Eritrea. You are seeking refugee protection pursuant to Sections 96 and 97(1) of the Immigration Refugee Protection Act. The specific details of your claim are set out in your Basis of Claim form which we entered as Exhibit 2. But if I was going to summarize your claim Sir, you began national service in 2009. In 2013, while you were still serving your national, performing your nat-, national service, you expressed your displeasure with your work situation, your work conditions with your pay, with various aspects of your national service.
[6] A few months later, in [XXX] 2014, you and a few others who expressed your displeasure were reassigned to an isolated location that housed prisoners and you say the name of that is [XXX] You petitioned against this reassignment and as a result you were sent to prison for approximately 16 months, from [XXX] 2014 until [XXX] 2015. While you were in prison, I understand that you were beaten and tortured. Upon release from prison, you were sent back to your original post to continue your national service, however, while there you were being harassed and intimidated. You were afraid of being sent back to prison so you decided to desert your national service, a-, a military service and flee Eritrea.
[7] You feared that if you returned to Eritrea today, you would be tortured, you may face a lengthy imprisonment or you could be sentenced to death because you deserted your-, your national service and you also fear the repercussions of leaving Eritrea illegally. So Sir, as I-, as I said a few minutes ago, the Panel determines that you are a Convention refugee pursuant to Section 96 of the Immigration Refugee Protection Act.
[8] Now with regard to your identity Sir, I have your Eritrean birth certificate, your-, and your Eritrean identity card which you have testified are genuine documents that you obtained legally and personally that these were not fraudulent documents that were given to you by an agent or a smuggler. And, I also have some witness letters that you have provided for me and all these documents can be found in Exhibit 5.
[9] Now with regard to credibility Sir, and this is where I-, I-, I believe I should command your counsel but I find that you-, when you spoke of your reasons initially, when you s-, sorry, when you spoke of the re-, the judge’s-, let me stop, let me try that all over again. When we were talking about the decision that was made by the immigration judge in the United States, I did not believe or it did not come across as credible when you stated that you were not-, you did not know why the immigration judge denied your claim. You had a lawyer but your lawyer did not explain to you why your claim was rejected. It-,you were not coming across as believable or as credible and that is a-, that is a major issue, especially when we only have two major issues in you claim, identity and credibility.
[10] Now, before we took a break, I did advise you or-, or encourage you to be very straightforward about your asylum claim in the United States. I assured you that this is a different process in a different country and that the decision of the immigration judge in the United States would not impact my decision here today. I said to you that I understand why you would be hesitant to tell me why that the judge in the United Sates denied your claim, for fear that I would deny your claim for the very same reason. And I encouraged you Sir, to put that aside and just speak frankly with me. I understand on the break that your counsel may have tried to soothe your nerves and encourage you to be forthcoming in these proceedings and when you returned to the room, your counsel actually asked you questions about the immigration judge and the ing-, immigration judge’s decision or the ing-, immigration’s judge’s reasons.
[11] Now, when your counsel asked you these questions after the break, you said that the immigra-, the immigration judge in the United States, his assessment was that he thought that your claim was about your personal disagreement with your supervisors and that it was not politically based. That makes sense to me. That is very believable to me. I can see how someone reading your story could feel that your difficulties were more about your interpersonal relationship with your supervisor, [XXX] and about the-, the uncomfortable work situation and they could find that it was not-, there’s not enough evidence to show that this is political. I understand that, that makes sense to me and I believe that that’s an honest answer.
[12] The immigration system in the US is different than immigration system in Canada. We have different definitions, we have different things that we look for to find a person to be a-, a-, Conv-, a refugee or a person in need of protection so that is why I said that the decision of the immigration judge in the United States was not going to affect my decision here today but what did affect my decision today was your ability to come back into this room and be very straightforward with me. So, I’m not going to draw a negative inference from your reluctance to be forthcoming when I first asked you the questions. A reason I’m not going to draw a negative inference is because I understand the difficulty that can be involved in presenting your evidence before a Panel after your claim has been denied based on the same story in front of a different Panel.
[13] It’s not, it doesn’t justify you not being honest with me in the beginning but I understand it and what’s important to me Sir, is that you were honest with me after you had a pep talk from your counsel. After you had some encouragement from me, you were honest and your explanation for the rejection of your claim in the United States makes sense. So, overall Sir, I don’t have any other or any credibility concerns with regard to your claim.
[14] So now, to talk about the well-foundedness of your claim or the well-foundedness of your fear Sir, I based my decision on the documentary evidence and the documentary evidence in Exhibit 3, Item 2.1, Section 8, Exhibit 4 which is your disclosure. All of those documents tell me that the Eritrean government enforces mandatory military service of its citizens and in some cases, the duration of military service is indefinite. Those who evade or in your case, desert military service are subjected to cruel and unusual treatment and punishment and they are in danger of torture and they do face persecution and they can even face death.
[15] So, it is clear Sir, from the documentary evidence that there is a serious possibility that you would face persecution, should you return to Eritrea today and clearly because it is the State, that is the agent of persecution. There would be no state protection available to you and-, and for the same reason there would be no viable internal flight alternative available to you anywhere in Eritrea which is why those weren’t placed on the table as issues at the outset of the hearing. So to conclude Sir, the Panel finds on a balance of probabilities that you have a well-founded fear of persecution in Eritrea based on your perceived political opinion and on your membership in a particular social group which would be military deserters. For that reason, the Panel finds you Sir, to be a Convention refugee pursuant to Section 96 of the Immigration Refugee Protection Act. The Refugee Protection Division accepts your claim.
———- REASONS CONCLUDED ———-