Citation: 2022 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 26, 2022
Panel: Vanessa Fairey
Counsel for the Claimant(s): Robin David Bajer
Country: Afghanistan
RPD Number: VC1-07308
Associated RPD Number(s): VC1-07309 / VC1-07310 / VC1-07311
ATIP Number: A-2022-01960
ATIP Pages: N/A
INTRODUCTION
[1] MEMBER: These are the reasons for the decision in the claims of the principal claimant, XXXX XXXX XXXX, and his spouse, XXXX XXXX XXXX, who is the associate claimant, and the minor claimant, XXXX XXXX, who are all citizens of Afghanistan, and in the case of the second minor claimant, XXXX XXXX, who is a citizen of both Afghanistan and the United States of America, who are claiming refugee protection pursuant to s. 96 and subsection 97(1) of the Immigration and Refugee Protection Act, or IRPA. I note for the record that the principal claimant has been designated as the representative for the minor claimants.
DETERMINATION
[2] For the reasons that follow, I find that the principal claimant, associate claimant, and minor claimant, XXXX XXXX, are Convention refugees as they have each established a serious possibility of persecution on account of at least one Convention ground in Afghanistan. In the case of the minor claimant, XXXX XXXX, in order for claim for refugee protection to be successful, the Act requires that the claim must establish a claim against each of their countries of nationality. In this case, no claim was advanced against the United States by the minor claimant or on her behalf. Indeed, there is no evidence before me that the minor claimant faces a risk of persecution or of cruel and unusual treatment or punishment or of torture in the United States. Accordingly, it’s unnecessary to examine the risks she faces in Afghanistan, and her claim for protection must be rejected.
ALLEGATIONS
[3] You each fear persecution at the hands of the Taliban in Afghanistan due to the principal claimant’s previous employment as a XXXX XXXX XXXX with XXXX XXXX XXXX XXXX XXXX, in which he XXXX XXXX XXXX XXXX in the United States at the XXXX XXXX XXXX in New York. The associate and minor claimants alleged persecution as members of a particular social group as the family members of the principal claimant.
[4] The former Afghan government collapsed on August 15, 2021, resulting in the principal claimant’s job being terminated and with it, any status as a government employee. After monitoring the situation for a couple of weeks and watching evacuations of Afghans that had previously worked with the US Government, the claimants chose to travel to Canada XXXX XXXX, 2021, and submit claims. They were deferred until XXXX XXXX, 2021, due to border restrictions as a result of the pandemic. The claimants submit that they did not submit claims in the US as they have a family member in Vancouver and due to a long and uncertain asylum process in the USA. It is again noted that the youngest family member, Elina, was born in the USA and thus holds US citizenship.
[5] The claimants allege that the Taliban targets anyone who has XXXX XXXX XXXX and especially Americans and that they are considered a kafir or infidel. The principal claimant notes that as the Taliban has taken over the Ministry of Foreign Affairs, where he was once employed, that they will have access to his information and, certainly, he and his family will be marked for harm and/or death. He notes that he has publicly stated his political opinion, which is opposite to that of the Taliban, on social media and that this will further incite persecution from the Taliban. The claimants have also submitted that the female claimants will face gender-based persecution and harm from the Taliban due to their membership in a particular social group as females.
ANALYSIS
Identity
[6] I find that your identities as nationals of Afghanistan have been established by the documents provided at Exhibit 1, namely your Afghan passports. In the case of the female minor claimant, I am satisfied of her identity and citizenship in the United States by her USA passport as well as her citizenship in Afghanistan as per her parents, who are Afghanis, and this is also found at Exhibit 1.
Credibility
[7] Pursuant to the Maldonado principle, a claimant’s testimony is presumed to be true unless there is valid reason to doubt their truthfulness, such as with inconsistencies, contradictions, or implausibilities. In these cases, I have no such reason to doubt the testimony of the claimants. There were no relevant inconsistencies in the evidence or contradictions between the evidence and other evidence before me.
[8] The principal claimant has testified regarding his occupation that he was employed from XXXX 2019 until XXXX 2021 in the USA XXXX XXXX XXXX XXXX XXXX XXXX. He explained that they were not offered assistance to remain in the US by the US government and that he did not seek out assistance in the US as it did not appear that, as Afghan employees, the US government would assist. He fears the Taliban to due to his employment in this capacity and especially as someone who worked with the Americans as the Taliban specifically targets people in those positions. The associate claimant also testified to the same fear and additionally testified emotionally regarding her fear for herself and the minor female claimant of having no rights as females in Afghanistan under the Taliban.
[9] The claimants have provided ample supporting documentations to support their allegations. These are found at Exhibit 5 and include photographs of the principal claimant at various official events in his capacity as an Afghan government representative, copies of his social media posts, and, at Exhibit 1 again, service passports for the principal, associate, and minor male claimant. Upon a review of these documents, I find no reason to doubt their authenticity and therefore place significant weight on them as they serve to corroborate the allegations. I find that the claimants are credible and have established a subjective fear of persecution in Afghanistan.
Well-Founded Fear
[10] For equipment to be a Convention refugee, they must have a well-founded of persecution due to a Convention ground. The Convention grounds are race, religion, nationality, membership, in a particular social group, and political opinion. I find that the harm these claimants fear is by reason of multiple intersecting factors, including their actual or perceived political opinion, as the principal payment was an employee of the previous government as well as having been posted to North America, and in the case of the associate and male minor claimants, their membership in a particular social group as members of an employee of the former Afghan national government. As well, the harm feared by the associate claimant is due to her membership in a particular social group as woman.
[11] I also find that the objective evidence in the National Documentation Package, the NDP, for Afghanistan supports the allegations, including at Items 1.5 and 2.1 as follows. Civilians associated with or perceived to be supporting the former Afghan government, civil society, and the international community in Afghanistan, including the international military forces and international humanitarian and development actors, have been subject to intimidation, threats, abduction, and targeted attacks by anti-government elements, including the Taliban. This may include returnees from Western countries. The Taliban continues to commit human rights abuses, including killings and kidnappings against those who oppose them, and maintains illegal detention centres. The Taliban and other insurgents continue to kill security personnel and civilians using indiscriminate tactics, such as improved explosive devices, IEDs, suicide attacks, and rocket attacks, and to commit disappearances and torture. The Taliban referred to their attacks as martyrdom operations.
[12] Violence against women remains a widespread, common, and undeniable reality in Afghanistan. Impunity in relation to such violence is reportedly common, despite the previous government’s efforts to promote gender equality. Women who are perceived as transgressing social norms continue to face social stigma and gender discrimination and threats to their safety, particularly in rural areas and areas controlled by anti-government entities or the Taliban. At Item 1.20, the report notes regarding recent political situations that the Taliban states that women’s rights will be permitted within the limits of Islamic sharia. Such norms include a strict dress code as well as requirements that restrict a woman’s freedom of movement, such as the requirement to be accompanied by a male relative chaperone when appearing in public. The level of discrimination that women such as the associate claimant face is sufficiently serious to constitute persecution. The recent withdrawal of international troops from Afghanistan has increased this risk. This is supported by Item 1.14 of the NDP as follows.
[13] In the wake of the withdrawal of international troops from Afghanistan, there has been rapid deterioration in the security and human rights situations in large parts of the country. Reports emerged from Taliban-held areas of the imposition of restrictions on personal and social freedoms and the erosion of women’s rights and access to services, including education. The Taliban has taken control of a rapidly increasing number of districts, with their advance accelerating in August 2021 to capturing 33 out of 34 of Afghanistan provincial capitals in the space of 10 days, ultimately taking control of the presidential palace and capital. Again, this is at 1.14 in the NDP. This upsurge of violence has had a serious impact on civilians, including women and children. At Item 1.28, we have a UNHCR report that notes that it is concerned about the risk of human rights violations against civilians, including women and girls, and against Afghans who are perceived by the Taliban to have a current or past association with the Afghan government or with the international military forces in Afghanistan or with international organizations in the country. It advises against returns to Afghanistan of those who have fled, including those whose asylum claims have failed.
[14] I find that the country evidence noted above establishes that those associated with the government and/or international agents and women who do not abide by traditional Islamic criteria, such as the associate claimant before me and the principal claimant, face persecution by the Taliban in Afghanistan. I therefore find that three claimants, the principal, associate and male minor claimants have established a serious risk of persecution, including death by the Taliban, should they return to Afghanistan.
[15] Regarding the female minor claimant, as I’ve mentioned, there is no claim advanced against the United States, of which she is a citizen, and therefore, I find her not to have established a well-founded fear persecution in the United States. I find that she’s neither a Convention refugee nor a person in need of protection with respect the United States. Consequently, I need not examine her claim against Afghanistan as she can safely return to the USA.
State Protection and Internal Flight Alternative
[16] Based on the objective evidence just discussed, I find that there’s not adequate or operationally effective state protection available in Afghanistan. The former Afghan government pardon has collapsed, turning the entire country, effectively, over to the Taliban. The agents of persecution govern most, if not all of the country. Given the specific circumstances of the principal, associate, and male minor claimants and the very recent occurrences in the country and that the Taliban control most of the country, I also find that there is no viable internal flight alternative for these claimants in Afghanistan.
CONCLUSION
[17] I find that the principal, associate, and male minor claimants, are Convention refugees pursuant to s. 96 of the IRPA, and I accept their claims. I find that the female minor claimant is not a Convention refugee pursuant to s. 96 of the IRPA or a person in need of protection pursuant to s. 97 of the IRPA. I therefore reject her claim, and that is the end of decision and reasons for the transcription records.
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