2023 RLLR 107
Citation: 2023 RLLR 107
Tribunal: Refugee Protection Division
Date of Decision: July 12, 2023
Panel: Stefan Martens
Counsel for the Claimant(s): Dan Bohbot
Country: Norway
RPD Number: VC2-03976
Associated RPD Number(s): VC2-03977, VC2-03978, VC2-03979, VC2-03980
ATIP Number: A-2024-00593
ATIP Pages: N/A
DECISION
[1] These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX (principal claimant, or PC), XXXX XXXX (associate claimant, or AC), XXXX XXXX (minor claimant #1, or MC#1), XXXX XXXX (minor claimant #2, or MC#2) and XXXX XXXX (minor claimant #3, or MC#3), citizens of Norway who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] In assessing this case, I considered the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.[2]
[3] The PC was named the designated representative for the three minor claimants (her children) pursuant to subsection 167(2) of the IRPA and rule 20 of the Refugee Protection Division Rules.
DETERMINATION
[4] I find that the claimants are Convention refugees pursuant to section 96 of the IRPA.
ALLEGATIONS
[5] The PC’s Basis of Claim form narrative,[3] amendment[4] and testimony contain the bulk of the claimants’ allegations. In short, the claimants fear returning to Norway because members of the PC’s family – especially an uncle named XXXX XXXX XXXX XXXX – has been targeting the PC and other family members with abuse for years.
[6] The PC is a 35-year-old, Pakistan-born woman who came to Norway in 2002. Claiming with her are her 41-year-old, Afghanistan-born husband, as well as the couple’s three children (the minor claimants).
[7] While growing up in Khyber Pakhtunkhwa, the PC was sexually assaulted and abused by XXXX XXXX and another maternal uncle, XXXX XXXX.
[8] In 2002, XXXX XXXX – a Norwegian citizen – helped the PC and her family come to Norway. Members of the family, including the PC and her sister, endured years of sexual abuse, violence and control from XXXX XXXX and his wife. XXXX XXXX, for instance, ordered the PC and her sisters to wear the burqa and avoid going to any extracurricular school activities; if they disobeyed him, he assaulted them.
[9] In 2005, XXXX XXXX went to jail for attacking his cousin, but he was later released from jail.
[10] In 2006, the PC escaped from the home because her family was forcing her into a marriage. The PC complained to Norwegian police about the abuse, but they did not initially take action.
[11] However, when the PC’s uncles found her in a women’s shelter, police took steps to protect her, giving her a secret location and a new name.
[12] However, a family friend of XXXX XXXX’s wife who worked in Norwegian social services provided the uncles with the PC’s confidential SIN number, allowing the agents of persecution to track her to different addresses around Norway. Sometimes, her uncles’ friends would visit her and assault her. At other times, she would receive threatening phone calls or notes pasted on her home. Another time, a man threw water at her, stating that they would throw acid at her the next time.
[13] In 2011, the PC went to visit relatives in Pakistan, but she cut short her two-week trip because her sister said XXXX XXXX was travelling to Pakistan to kill her.
[14] In 2018, Norwegian police contacted her because XXXX XXXX’s sons had complained about his years of abuse. At the time, she also received alarms and panic buttons from police, who additionally placed the claimants in a bulletproof house.
[15] During this time, XXXX XXXX’s wife, XXXX XXXX, placed an anonymous call with child welfare services, alleging that the PC and AC were planning to marry off MC#2 in an Islamic wedding.
[16] Norwegian police eventually told the claimants that they should leave Norway and Europe because of the threat from her uncles.
[17] The claimants fled to Canada in XXXX 2019. In XXXX 2020, the PC testified against XXXX XXXX by videolink in a court case. In part because of her testimony, XXXX XXXX was sentenced to five years in jail.
[18] Around the same time, XXXX XXXX’s wife also spent around two months in jail as police investigated her role in accessing the PC’s social insurance records.
[19] In August 2020, the claimants applied for refugee protection in Canada.
[20] In 2022, XXXX XXXX was released from prison.
ANALYSIS
Identity
[21] The claimants’ personal identities and identities as nationals of Norway have been established by their sworn testimony and copies of their Norwegian passports in evidence.[5]
Country of Reference
[22] I find that Norway is the only country of reference for all the claimants.
[23] The PC was born as a Pakistani citizen in Pakistan in 1987. When she was about 14, she moved to Norway. In 2009, she obtained Norwegian citizenship, forcing her to renounce her Pakistani citizenship. Norwegian police duly accompanied her to her uncle’s home so that she could pick up her Pakistani passport and return it to the Pakistani Embassy in Oslo.
[24] For his part, the AC was born as an Afghan citizen in Afghanistan in 1982. When he was about 25, he came to Norway. He successfully claimed refugee status in Norway and became a Norwegian citizen in 2014.
[25] The first of the children born was XXXX (MC#2) in 2010. XXXX was born to the PC and a man who was a Norwegian citizen originally from Afghanistan. Together, the adult claimants had two more children: XXXX (MC#3) in 2012 and XXXX (MC#1) in 2015.
[26] Pakistan
[27] I do not find that Pakistan is a country of reference for any of the claimants.
[28] The PC gave birth to the three minor claimants in 2010, 2012 and 2015 – all of which followed the renunciation of her Pakistani citizenship in 2009.
[29] The National Documentation Package (NDP) for Pakistan discusses the modes of reacquiring citizenship. According to Pakistani legal experts interviewed for a Response to Information Request (RIR) for the Board, any of Pakistan’s provisions for resuming citizenship apply merely “to children whose parents renounced their Pakistani citizenship upon becoming citizens of another country while the child was still a minor.”[6]
[30] In this case, the PC did not renounce her Pakistani citizenship after they were born, but before, so I do not find that the minor claimants have the option of obtaining Pakistani citizenship because they were born to non-Pakistani citizens. Accordingly, I do not find that Pakistan is a country of reference for the three minor claimants.
[31] In the case of the PC herself, there is the question of whether she can reacquire Pakistani citizenship. But in a separate RIR for the Board, the same Pakistani legal experts state that “[u]nfortunately the 1951 Act and the 1952 Rules are silent on the issue of resumption of Pakistani citizenship by adults who voluntarily renounced their citizenship.”[7]
[32] Accordingly, I find that there is insufficient evidence to establish that adults who renounce their Pakistani citizenship can reobtain it automatically because Pakistani law is silent on the matter. As such, I do not find, on a balance of probabilities, that it is within the PC’s power to reobtain Pakistani citizenship given the lack of legal clarity on the issue.
[33] Because of that, I find that Pakistan is not a country of reference for her.
Afghanistan
[34] I do not find that Afghanistan is a country of reference for any of the claimants.
[35] The AC was born as an Afghan citizen but renounced the citizenship no later than 2014, when he obtained Norwegian citizenship. XXXX (MC#3), who was born in 2012, was the only child to be born to the AC while he was still an Afghan citizen, raising the likelihood that MC#3, too, was born an Afghan citizen but lost it as well as his father became solely a Norwegian citizen in 2014.
[36] Since the takeover of the Taliban, I find that there have been no updates to the Afghanistan NDP regarding the group’s new citizenship policies, if any. As such, I will rely on the last available documents regarding the country’s citizenship laws before the country’s fall to the Taliban.
[37] According to Article 35 of the pre-Taliban citizenship law, “the Afghan nationality of a person who has lost it and wants to get it restored can be restored after the approval of the Council of Ministers and later by Amirul mo’minîn.”[8]
[38] Critically, Article 35 states that the citizenship “can be restored” following approval from senior officials. Such language indicates that the process is not automatic but dependent on the discretion of minister and the Amirul mo’minîn. As such, I do not find that it was within the power of the AC and MC#3 to automatically obtain Afghan citizenship on the date of the hearing.
[39] Because of that, I find that Afghanistan is not a country of reference for the AC or MC#3. And in summary, I find that Norway is the only country of reference for all the claimants, meaning I will assess their claim against Norway alone.
No Exclusion Against PC Under Article 1(F)(b) for Potential Child Abduction
[40] I considered whether there were reasons to exclude the PC according to Article 1(F)(b) because of potential child abduction, but I find that there are no serious reasons for considering that she brought the MC#2 to Canada without the latter’s father’s consent.
[41] MC#2 (XXXX XXXX) is the PC’s daughter, but she is not the biological daughter of the AC. Rather, she is the daughter of the PC’s ex-husband. (She is also the oldest of the PC’s children, but she was listed as the second minor claimant in the refugee claim.)
[42] Based on the PC’s testimony and the supplementary evidence, I do not find that there is any reason for concern that MC#2’s biological father did not give consent for her to relocate to Canada.
[43] The PC testified that MC#2’s father never wanted the child and that her daughter has never been in contact with her biological father. The claimants also submitted Norwegian state documents regarding parental responsibility for each of the minor children. For MC#1 and MC#3 both the PC and AC are listed as the parents responsible,[9] but for MC#2, only the PC is listed as responsible.[10]
[44] I have no reason to doubt the authenticity of the documents, while I also find them probative of the matter at hand. As such, I attach them high weight in corroborating the PC’s allegations that XXXX’s birth father is not involved in his daughter’s life and that she, as the PC, is the sole parent responsible for her daughter.
[45] As such, I find that there are not serious reasons for considering that 1(F)(b) applies to the PC in a case of potential child abduction. And because of that, I find that the PC is not excluded from refugee protection.
Nexus
[46] To satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that they face a serious possibility of persecution on account of their race, religion, nationality, membership in a particular social group or political opinion in their country of nationality.
[47] The PC alleges that she was targeted by her ultraconservative uncles, particularly XXXX XXXX, with sexual and other violence. Moreover, she alleges that she was subjected to severe restrictions, such as limitations on her movements outside the home and directives that she wear the burqa, because she was a girl.
[48] Accordingly, I find, on a balance of probabilities, that XXXX XXXX and the other agents of persecution harmed the PC when they were young because she was a girl and that they continue to target her because she has been most instrumental in testifying against XXXX XXXX in Norwegian court. While I acknowledge that the agents of persecution’s motivations for pursuing the PC now appear to be vendetta-related in nature, I note that the genesis of their hostility towards stems from her gender. Accordingly, I find that the agents of persecution have mixed motives for targeting the PC, but in line with the Federal Court finding in Canada vs. B344 – namely, that “it has been recognized that mixed motives of persecution may form the basis of a well-founded fear of persecution. Nexus is established when at least one of the motives is based on a Convention ground”[11] – I find that the PC has established a nexus to the Convention ground of membership in a particular social group: girls and women.
[49] Because of that, I have assessed her case based on section 96 of the IRPA.
[50] As for the other claimants, I find that they also have a nexus to the Convention since they are being targeted by the agent of persecution because of their family connection to the PC – a person who is being targeted, in part, on a Convention ground (membership in a particular social group – girls and women). Accordingly, I have also assessed their claim according to section 96 of the IRPA.
Credibility
[51] I found the claimants to be credible witnesses.
[52] In line with the Federal Court’s decision in Maldonado v. Canada, a claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is a reason to doubt their truthfulness.[12] In this case, I found the claimants who testified – the PC and AC – to be credible, consistent, sincere and forthright in their testimony.
[53] The PC testified extensively and credibly about her numerous efforts to escape the abuse from XXXX XXXX and her extended family but that the agents of harm were able to track her because Norwegian authorities refused to change her social insurance number (SIN) and because of a Norwegian friend in the child protection services, XXXX XXXX.
[54] Regarding the SIN, the PC stated that the agents of persecution could track her because that number never changed, even though police changed her address and her name (they changed her last name to the Norwegian “XXXX”). At one point, the PC asked authorities to also change the SIN because her uncle or his associates were always finding her, yet police told her that “there has to be extreme harm against you for that.” The PC retorted, noting that there had been attempted murder (XXXX XXXX’s attack on his cousin), yet the official said their hands were tied because there are rules.
[55] During the hearing, I also asked the PC how she knew that XXXX had secretly updated XXXX XXXX and his wife about her different addresses over the years, resulting in continued threats against her. The PC stated that XXXX XXXX (XXXX XXXX’s wife) and XXXX had grown up together in Norway and had remained friends later in life. The PC stated that she did not personally meet XXXX in her office until 2013 but that, growing up, she had heard her name occasionally and that XXXX XXXX would buy Christmas and Easter gifts for XXXX.
[56] I asked why XXXX XXXX and XXXX XXXX routinely bought gifts for a Norwegian official on Christian holidays given their profile as ultraconservative Muslims who forbade women in the family from leaving the house if at all possible. In response, the PC stated, “In the house, they call the non-Muslims pigs,” adding that XXXX XXXX would say, “If I need them [white Norwegians], I will buy them.” Hearing such comments from her uncle, the PC once asked him, “‘If they are all pigs, why don’t you go to Pakistan?’ So he slapped me and said, ‘Why are you so free to everybody?’”
[57] The PC added that she eventually went to XXXX’s office in 2013 to confront the woman, asking how she could assist XXXX XXXX when he knew of his violence. XXXX, however, simply told the PC that XXXX XXXX and XXXX XXXX are “my good friends, and I could not go against that.”
[58] I am satisfied by this testimony, finding that the PC has provided sufficient credible evidence to establish, on a balance of probabilities, how the agents of persecution successfully tracked her over the years despite Norway’s ostensible safeguards against such abuse from within the system.
[59] The claimants also submitted numerous documents in support of their claims. I give high weight to the following documents, as I find them to be authentic and probative in establishing, on a balance of probabilities, the credibility of their allegations that the agents of persecution have been targeting them, particularly the PC, and that Norwegian police encouraged them to leave the country.
· Exhibit 4.9: A letter from XXXX XXXX, a police chief in Oslo, confirming that the PC has been the primary witness in a family case and that she been the victim of violence. XXXX, who wrote the letter in XXXX 2020 – after the claimants fled to Canada – stated that it was his belief that there was a “high risk” that the PC and her family would be subjected to reprisals and violence if she returned to Norway because of the court case against XXXX XXXX and that the threat would remain even if the suspect were convicted.
o I initially had concerns about the authenticity of XXXX’s letter, as it was written in English, rather than Norwegian. Asked how she received the letter, the PC stated that XXXX headed the police investigation unit in Oslo and that she did not have any dealings with him while in Norway. The PC stated that after coming to Canada, she avoided claiming refugee protection because she was waiting to hear word from Norwegian authorities about whether it was safe to return to Norway. On this front, a police official that was assisting her, XXXX XXXX, asked her to wait. Later, XXXX said she would provide information on the case, ultimately providing XXXX’s letter. The PC testified that she was surprised to receive a letter in English, rather than Norwegian, and that she was shocked that the letter did not say “we can give you this kind of protection,” but rather just “threw me out of the country.” I am satisfied by the PC’s explanation, accepting her testimony that she was genuinely not expecting to receive an English-language letter that, far from inviting her back to Norway, encouraged her to remain outside the country. Accordingly, I accept XXXX’s letter as authentic;
· Exhibit 4.10: A signed summons from Vest police officer XXXX XXXX instructing the PC to come to the XXXX sheriff’s office on XXXX XXXX, 2019, and XXXX XXXX, 2019, to assist with a criminal case;
· Exhibit 4.11: A Norwegian-language letter (with accompanying certified English translation) from XXXX XXXX, the superintendent of police and coordinator for vulnerable persons in Bergen, dated XXXX XXXX XXXX, 2019. XXXX stats that “it will be very beneficial for XXXX XXXX XXXX and her family to move from Norway in relation to her situation;”
· Exhibit 4.12: A report from XXXX XXXX XXXX XXXX from XXXX XXXX, 2019, in which an anonymous caller complains that the PC has been acting violently towards her children and that she is considering marrying off MC#2 in an Islamic wedding;
· Exhibit 4.13: A copy of an indictment against XXXX XXXX from the Oslo Regional Public Prosecution Office accusing him of committing violence against family members from 2002 until 2018;
· Exhibit 4.14: A court decision from XXXX XXXX, 2020, sentencing XXXX XXXX to five years in jail for domestic violence. The sentence also prohibited him from having any contact with two of the PC’s sisters for five years;
· Exhibit 4.15: An email from XXXX XXXX, a superintendent of police in Oslo and the PC’s point person with Norwegian authorities, confirming that XXXX XXXX was released from prison by XXXX 2022.
· Exhibit 7: A long-form article from journalists XXXX XXXX and XXXX XXXX of XXXX, Norway’s XXXX XXXX, titled “XXXX XXXX XXXX XXXX XXXX.” The story, which was published in XXXX 2020, follows the process against XXXX XXXX and includes interviews with XXXX XXXX. The piece provides a long expose into the PC’s case, including her escape from the family home in 2006 and her joy that police were finally summoning her to hear her story in XXXX 2019. Although the article identifies the PC as “XXXX,” it includes several of her pictures, including ones of her in her new life on “a different continent” (Canada) and her picture as she testifies in a Norwegian courtroom by videolink. As such, I find, on a balance of probabilities, that XXXX is the PC and that the XXXX story collaborates many of the PC’s allegations of longstanding abuse at the hands of XXXX XXXX.
No Negative Inference Due to Claimants’ Delay in Claiming Protection
[60] I make no negative inference about the claimants’ delay in applying for protection in Canada.
[61] The claimants arrived in Canada on XXXX XXXX XXXX, 2019, and filed for protection in April 2020.
[62] As alluded to in the discussion about Exhibit 4.9, the PC stated that she and her family left for Canada in the expectation that Norwegian police would contact her again to explain what kind of measures they could take to protect her in the future from XXXX XXXX. “I called them, should I come back? I asked XXXX XXXX, but she said, ‘I will get back to you,’” the PC said in her testimony, adding that XXXX finally sent her senior Oslo police official XXXX’s aforementioned letter and told her to “show it to immigration in Canada.”
[63] I accept the PC’s testimony about this matter, finding it reasonable that she and her family did not claim protection in Canada for roughly XXXX months because they were expecting Norwegian police to detail a plan for protection. When Norwegian police, however, instead told them to remain outside Scandinavia, the claimants immediately file for protection.
[64] Accordingly, I make no negative inference about their delay in claiming protection.
Final Credibility Findings
[65] Ultimately, I found the claimant’s testimony to be consistent and devoid of major inconsistencies, while I have also given significant weight to the aforementioned documents. Furthermore, I accept as reasonable the PC’s explanation as to why the claimants delayed in claiming protection in Canada. As a result, I accept the following allegations as fact:
· That XXXX XXXX and his wife subjected the PC to years of physical and sexual abuse, as well as draconian restrictions on her movements;
· That the PC escaped her difficult living situation in 2006;
· That Norwegian police moved the PC to different addresses and provided her with a new name but that her uncle and his wife continued to stalk and threaten her because a family friend in Norwegian social services, XXXX XXXX, informed them of the PC’s whereabouts;
· That the PC acted as a witness in a criminal investigation against XXXX XXXX in which a Norwegian court ultimately sentenced him to five years in jail in XXXX 2020;
· That XXXX XXXX was released from jail by XXXX 2022;
· That XXXX XXXX continually made threats against the PC and her family (i.e., the other claimants) and that he falsely accused the PC of attempting to marry off the MC#2 in an Islamic wedding when she was just 9 years old;
· That more than one high-level Norwegian police official advised the PC and her family to leave Norway because of the threat that XXXX XXXX poses.
[66] Because of these findings of fact, I find that the claimants have established, on a balance of probabilities, that they have a genuine subjective fear of persecution in Norway.
Well-Founded Fear of Persecution
[67] Based on the claimants’ testimony and the available documentary evidence, I find that they have a well-founded fear of persecution in Norway.
[68] The PC endured decades of abuse at the hands of her uncle XXXX XXXX because she was a woman who challenged his ultraconservative restrictions on her life. The PC escaped from her uncle’s home in 2006, yet she continued to face threats and attacks over the next decade even though Norwegian authorities had ostensibly moved her to safe addresses in different places in Norway. During the court process, XXXX XXXX also made threats against the rest of her family.
[69] Police, furthermore, have even told the PC that the threats against her and her family “will remain even when [the] perpetrators are convicted.”
[70] Given XXXX XXXX’s pattern of behaviour, as well as senior Norwegian police officials’ belief that he is likely to continue to pose a threat even after conviction, I find that XXXX XXXX has demonstrated the enduring means and motivation to pursue the PC and her family in Norway.
[71] As such, I find that the claimants have established that they have a well-founded, serious possibility of persecution in Norway.
State Protection
[72] I find that adequate state protection is not available to the claimants.
[73] States are presumed to be capable of protecting their citizens, except in cases of complete state breakdown. The more democratic the country, the more the claimant must do to show that they have exhausted all available means of obtaining state protection.[13] Claimants are expected to approach the state for protection unless it is unreasonable to do so.
[74] In this case, Norway has a stable, functioning democratic government, meaning it is presumed to capable of protecting its citizens. Indeed, the objective evidence indicates that Norway is a highly functioning democracy that enjoys the rule of law. Its judiciary, for instance, is independent, and civilian authorities maintain effective control over the security forces. Norway is also one of the least corrupt countries in the world.[14]
[75] The U.S. Department of State (DOS) report on human rights practices for 2021 also reported that there were no significant human rights abuses in Norway and that the Norwegian government investigated officials who allegedly committed violations of human rights. Furthermore, the U.S. DOS noted a number of avenues by which individuals or organizations may seek civil remedies for human rights violations.[15]
[76] Freedom House, furthermore, gave Norway maximum marks in terms of its political rights and civil liberties, stating the following: “Norway is one of the most robust democracies in the world. Elections are free and fair, and power regularly rotates between parties. Civil liberties are respected, with independent media and civil society actors holding the government to account. Discrimination against Roma and other marginalized groups remains a problem.”[16]
[77] But while I acknowledge the objective evidence that paints the robustness of Norwegian institutions in a glowing light, I find that adequate state protection ultimately does not exist for the claimants in their particular circumstances.
[78] In both Loaiza[17] and Leon Davila,[18] the Federal Court has instructed decision-makers to conduct a contextual analysis of the claimants’ personal circumstances. Additionally, I note that there have been debates over whether the level of state protection must be adequate or effective but that the Federal Court has ruled in Zalzali that the degree of protection required is not perfection, but adequacy.[19]
[79] Crucially, the Federal Court has noted in Burai and other decisions that the adequacy of state protection is not dependent simply on the state’s efforts or intentions, but the adequacy of the protection at the operational level. In Burai, the Federal Court reiterated that an appropriate state protection analysis requires an assessment of the adequacy of a state’s protection at the operational level, rather than just its efforts or intentions.[20] Similarly in Gonzalez Camargo, the Court stated, “The Board failed to correctly recognize that the assessment of the adequacy of state protection involves more than a consideration of state efforts. This caused the Board to focus on state efforts and not consider the operational adequacy of state protection for the applicants and individuals in like circumstances.”[21]
[80] In what follows, I will discuss the claimants’ efforts to obtain the Norwegian state’s protection, as well as the operational adequacy of the state’s protection.
[81] Claimants Have Exhausted All Efforts to Access State Protection
[82] I find that the claimants have done everything in their power to access state protection. I also find that the state has made numerous efforts to provide the claimants protection but that, ultimately, it proves inadequate.
[83] Starting in 2006, the PC fled her uncle’s home to find help with the authorities. Norwegian officials changed her name and sent her to different addresses in Oslo, Bergen and other places in southern Norway. Citing rules and the lack of an extreme threat against the PC, however, officials refused to change her SIN number, thereby allowing the agents of persecution’s family friend to pass along the PC’s changing addresses to her assailants. Later, the PC helped testify against her uncle, resulting in his conviction for domestic abuse.
[84] During the trial but before the claimants fled to Canada, the PC was summoned to the XXXX sheriff’s office twice in XXXX 2019 as part of the case against XXXX XXXX. Following those meetings, the PC had an appointment with police security officials in which Norwegian authorities offered her a “code 6,” the country’s top security code, and a panic button. They also moved the family into a bulletproof house after XXXX XXXX reportedly threatened a police lawyer in court during a hearing.
[85] And even after the claimants fled to Canada, they still made regular inquiries with Norwegian officials about a return, expecting that senior police officials like XXXX XXXX would provide direction as to how authorities would protect the claimants after XXXX XXXX completed his sentence. But after waiting for roughly XXXX months, they received correspondence from the top police investigation official in Oslo, XXXX XXXX, advising them to remain abroad because the PC “and her family will not be safe in Norway, particularly not after [XXXX XXXX’s] case [has] been in court.”[22]
[86] In summary, the PC first approached police in 2006, and she approached authorities during every step of her problems with the agents of persecution, right up to the top police investigation official in Oslo. I also find that there is no evidence in the National Documentation Package (NDP) for Norway that there are any other avenues that were available to her.
[87] Accordingly, I find that the claimants exhausted all domestic avenues of state protection in Norway.
Norwegian State’s Protection Is Ultimately Inadequate on Operational Level
[88] I also find that Norway is unable to offer adequate state protection at an operational level.
[89] In making this finding, I acknowledge that the Norwegian state extended numerous efforts over more than a decade to provide protection to the PC, as would be expected from a highly functioning democracy. On the other side, I also agree with the claimants that racism within Norwegian institutions such as the child welfare system and in some aspects of society in general – a point highlighted in the claimants’ disclosure[23] – likely paid a role in authorities essentially washing their hands of the claimants (who, to reiterate, are of Pakistani and Afghan origin) by encouraging them to remain outside of Norway.
[90] Ultimately, however, I find that the issue of racism is not determinative of the adequacy of Norwegian state protection on an operational level. That is, I do not find Norwegian state protection is ultimately inadequate on an operational level because of racism within the country’s institutions but because there simply does not exist any state protection that could protect the claimants in their particular circumstances.
[91] Consider the following testimony from the PC regarding her conversations in Norway with XXXX XXXX, the superintendent of police and coordinator for vulnerable persons in Bergen, when she was discussing the options of protection during the trial: “XXXX asked, ‘What will happen if your uncle is coming out of jail? He also threatened the police lawyer in court. We recommend that you move from Norway, Europe and Scandinavia.” During the same conversation, XXXX added: “It will be too expensive to protect you all your life. We can protect you one year, but what happens after two years? [XXXX XXXX] is violent. If he did it before against his cousin [the incident for which XXXX XXXX was jailed in the 2000s], he will do it again against you.”
[92] XXXX’s comments to the PC indicate that, even if officials had not seemingly washed their hands of the issue once the claimants had left Norway, no protection in Norway is ever going to be effective against an agent of persecution whose means and motivation to harm the claimants has been established since the 2000s.
[93] I am mindful of the Court’s ruling in Zalzali that state protection need only be adequate, rather than perfect. However, I find that it would be a dereliction of moral duty for Canada to similarly wash its hands of the claimants by refusing to extend protection by invoking the rule that the Norwegian state has offered adequate state protection through its numerous efforts throughout the years to offer the claimants protection. For all decision-makers, the question in every hearing ultimately boils down to where a claimant will be safe: Will they be safe, for instance, because there is no forward-facing risk, because they can avail themselves of state protection or because there is an internal flight alternative (IFA)? Or are none of these available, meaning that Canada’s surrogate protection is necessary to extend safety to the claimant?
[94] In the claimants’ particular circumstances, I find the evidence is clear that the Norwegian state is unable to provide adequate protection to the claimants from this highly motivated agent of persecution. The answer to the question of whether Canada’s surrogate protection is necessary in these unique circumstances is a resounding yes – especially as Norwegian state authorities have stated themselves that they can no longer protect the claimants after exhausting all other avenues to stop the agents of persecution.
[95] Importantly, Canada can provide meaningful surrogate protection to these claimants because the agent of persecution does not have the means to locate them in Canada. When such a straightforward solution to the claimants’ particular circumstances is readily available, I thus find that it would be inexcusable to reject their claim for protection by hiding behind Court rulings that indicate that state protection need not be perfect, but only adequate – even if the evidence indicates that making such a decision would, on a balance of probabilities, consign the claimants to a serious possibility of persecution in Norway.
[96] For these reasons, I find that the presumption of state protection has been rebutted.
Internal Flight Alternative
[97] I also find that the claimants do not have a viable IFA in Norway.
[98] As noted previously, the agents of persecution have demonstrated the means and motivation to pursue the PC around Norway, even when authorities had changed her name and her address. After she married the AC and the couple had their children, the primary agent of persecution, XXXX XXXX, also threatened the other claimants. Senior police officials in the country, moreover, advised the entire family to leave, arguing that XXXX XXXX is likely to insist on revenge after the PC’s court testimony helped put him behind bars.
[99] Given, thus, the agents of persecution’s demonstrated pattern of locating and threatening the claimants at different locations around Norway, I find that there is no viable IFA available to them in Norway.
CONCLUSION
[100] For the forgoing reasons, I determine that the claimants are Convention refugees pursuant to section 96 of the IRPA; as such, the Board accepts their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, July 2022.
[3] Exhibit 2.
[4] Exhibit 4.1.
[5] Exhibit 1.
[6] Exhibit 3.3, National Documentation Package, Pakistan, 31 January 2023, tab 3.2: Whether a former Pakistani citizen can reacquire his/her Pakistani citizenship, including requirements and procedures (2012- November 2015). Immigration and Refugee Board of Canada. 8 December 2015. PAK105367.E.
[7] Exhibit 3.3, National Documentation Package, Pakistan, 31 January 2023, tab 3.4: Report On Citizenship Law: Pakistan. European University Institute. European Union Democracy Observatory on Citizenship. Faryal Nazir. December 2016.
[8] Exhibit 3.1, National Documentation Package, Afghanistan, 31 January 2023, tab 3.1: Citizenship, including legislation and whether dual citizenship is permitted (2008-2013). Immigration and Refugee Board of Canada. 5 February 2013. AFG104269.E.
[9] Exhibits 4.7, 4.8.
[10] Exhibit 4.6.
[11] Canada (Citizenship and Immigration) v. B344, 2013 FC 447.
[12] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[13] Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A, nos. A-182-06; A-185-06).
[14] Exhibit 3.1, National Documentation Package, Norway, 29 September 2022, tab 2.1: Norway. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[15] Exhibit 3.1, National Documentation Package, Norway, 29 September 2022, tab 2.1: Norway. Country Reports on Human Rights Practices for 2021. United States. Department of State. 12 April 2022.
[16] Exhibit 3.1, National Documentation Package, Norway, 29 September 2022, tab 2.2: Norway. Freedom in the World 2022. Freedom House. 2022.
[17] Loaiza Brenes, Heyleen v. M.C.I. (F.C., no. IMM-2445-06), Barnes, April 2, 2007; 2007 FC 351.
[18] Leon Davila, Marco Antonio v. M.C.I. (F.C., no. IMM-7645-05), de Montigny, December 11, 2006; 2006 FC 1475.
[19] Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.).
[20] Burai v. Canada (Citizenship and Immigration), 2020 FC 966.
[21] Gonzalez Camargo, Hernando v. M.C.I. (F.C., no. IMM-38-14), Gleeson, September 2, 2015; 2015 FC 1044, at para. 27.
[22] Exhibit 4.9.
[23] Exhibits 4.20-4.25, 5.