2023 RLLR 234
Citation: 2023 RLLR 234
Tribunal: Refugee Protection Division
Date of Decision: December 14, 2023
Panel: Lorna Farmer
Counsel for the Claimant(s): Loujin Khalil
Country: Iraq
RPD Number: VC3-08515
Associated RPD Number(s): VC3-08517, VC3-08518
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
introduction
[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX XXXX XXXX XXXX (principal claimant) and her sons XXXX XXXX XXXX XXXX (first minor claimant) and XXXX XXXX XXXX XXXX (second minor claimant) as citizens of Iraq who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]
[2] At the hearing I maintained the designation of the principal claimant as the representative for the minor claimants.
ALLEGATIONS
[3] The following is a brief summary of the claimants’ allegations I find relevant to the current decision. A full summary of their allegations is found in their Basis of Claim (BOC) forms and narratives.[2]
[4] The claimants are citizens of Iraq and no other country. The principal claimant is 35 years old, while the first minor claimant is 11 years old and the second minor claimant is 6 years old. The principal claimant is a member of the Sunni Muslim sect. In 2010 she married XXXX XXXX XXXX who is a Shia Muslim. The principal claimant’s husband currently resides in Canada with the claimants. Although he faces risks in Iraq, he decided not to join the claimants in filing a claim for refugee protection.
[5] The principal claimant completed much of her schooling in Yemen where she qualified as a XXXX XXXX. In 2011 she and her husband settled in XXXX, Iraq which is her husband’s home city. The population of XXXX is predominantly from the Shia sect.
[6] The minor claimants were born in XXXX. They are identified as being in the Shia sect through their father’s lineage.
[7] The principal claimant opened a XXXX XXXX in XXXX where she worked until she left for Canada in XXXX 2022. During her eleven years in XXXX, she was always concerned about being harmed by various Shia militia groups affiliated with the Sadr movement, due to being Sunni. She took many precautions not to be identified as a Sunni, especially following sectarian violence in 2020 and 2021. Nonetheless, the principal claimant received various threats because she was a Sunni Muslim, and she did not feel safe.
[8] In XXXX 2022 the claimants arrived in Canada. The principal claimant had a student visa to pursue a XXXX XXXX. In XXXX 2023 she learned that her XXXX in XXXX had been forcibly closed by a member of a militia group loyal to the Sadr movement. The militia group stated that they were against the XXXX being operated by a Sunni Muslim and they forced the XXXX to close. Since this was the principal claimant’s main source of income, she had to discontinue her studies in Canada for lack of funds. She also realized she could no longer reside in XXXX. She applied for refugee protection along with the two minor claimants, alleging that the three of them face persecution at the hands of militia groups anywhere in Iraq: as a Sunni Muslim, the principal claimant cannot live safely in XXXX or in any Shia dominated part of Iraq; and as Shia Muslims, the minor claimants cannot live safely in any Sunni dominated part of Iraq. Specifically, the minor claimants risk persecution because the militia groups may use them as a way to get to the principal claimant.
Determination
[9] I find that the three claimants are Convention refugees for the reasons that follow.
Identity
[10] I find the claimants’ personal and national identities are established on a balance of probabilities by a copy of their Republic of Iraq passports in evidence.[3]
Credibility
[11] When claimants affirm to tell the truth, this creates a presumption that their allegations are true unless there is reason to doubt their truthfulness. Based on the principal claimant’s testimony at the hearing and the documents in evidence, I have noted no serious credibility issues. She testified in a straightforward manner, and there were no inconsistencies between the claimants’ BOC narratives and the principal claimant’s statements at the hearing.
[12] The claimants have also provided documentary evidence in support of their claims, including a copy of her marriage certificate, letters from the principal claimant’s siblings who have also fled Iraq, and documents on Iraq country conditions. After reviewing the documents, I have no reason to doubt their authenticity and I therefore find they are credible evidence. I place full weight on these documents in assessing this claim.
[13] Overall, I accept the central allegations of these claims on a balance of probabilities. I find that the claimants have established subjective fears of persecution in Iraq.
Nexus
[14] In order to satisfy the definition of a “Convention refugee”, found in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion.
[15] I find the principal claimant’s allegations establish a nexus to the Convention ground of religion as a member of the Sunni sect in Iraq.
[16] I find the minor claimants’ allegations establish a nexus to the Convention ground of particular social group because they are the direct family members of the principal claimant.
[17] While family is not generally considered a particular social group for the purposes of a section 96 analysis, family may amount to a particular social group if the family members fear harm that arises from the fact that one of their family members is targeted for a Convention reason.
[18] In this case, the risks alleged by the minor claimants extend directly from the principal claimant’s alleged risks, particularly due to their age as young dependent children.
[19] As such, I will assess these claims under section 96 of the Act.
Well-founded fear of persecution
[20] When assessing a claim for refugee protection I look at whether claimants have a well-founded fear of persecution which involves both a subjective fear element and a forward-facing objective basis for that fear pursuant to section 96 of the Act.
Principal claimant
[21] Based on all of the evidence before me, I find on a balance of probabilities, that the principal claimant has a well-founded fear of persecution should she return to Iraq.
[22] The principal claimant testified that Iraq has a long history of sectarian violence, with a particular flare up in 2020 and 2021. As a Sunni Muslim there is nowhere in Iraq where she and her family members can live safely because she is a member of the minority Sunni sect while her husband and children are Shias. During the eleven years she lived in her husband’s Shia-dominated home city, she lived in fear of the Shia militia learning that she is Sunni. She took many precautions, including altering her surname, avoiding sectarian discussions, and generally avoiding being identified as a Sunni. She witnessed the persecution of other Sunni Muslims in XXXX, including violence against a Sunni dentist who was stabbed because of his religious affiliations. Out of fear for her safety, she started to contemplate leaving the country. During the 2021 election campaign, she was threatened by a member of the Sadr movement who told her, “You are in our neigbourhood under our protection, don’t upset us.” She testified that as a XXXX, she holds public positions and she is easily identifiable as a Sunni anywhere in Iraq.
[23] The National Documentation Package (NDP) for Iraq informs that Sunni Muslims are about 40 percent of the population. Shias, although predominantly located in the south and the east, are the majority in Baghdad. They have communities in most parts of the country. Sunnis form the majority in the west, centre, and north of the country. Starting in the late 20th century, the schism between Sunni and Shia sects became deeper, and exploded into violence in many parts of the Middle East, as extreme brands of Sunni and Shia Islam battled for both religious and political supremacy.[4]
[24] In terms of the militias specifically, a number of sources state that the Shia militias mobilized in response to the insurgency in 2014, and they are now integrated into the security forces of the country and have been responsible for human rights violations against Sunnis. Despite efforts to gain control of the militias and fully integrate them into the armed forces, many groups continue to defy central government command and control. According to international human rights organizations, some Shia militias, including some operating under the PMF umbrella, continue to commit physical abuses, and were implicated in several attacks on Sunni civilians, allegedly to avenge ISIS crimes against Shia.[5]
[25] A further review of the recent NDP[6] reveals that much of the objective evidence related to Sunni/Shia relations are dated back to 2016 and 2017, therefore they are of limited value in establishing the claimants’ allegations. I rely also on objective evidence submitted by counsel as part of these claims, found in exhibit 4. These documents point to the general insecurity in Iraq and establish that the sectarian violence has only increased in recent years. Further, they corroborate the principal claimant’s testimony of sectarian violence in 2020 and 2021.
[26] In a document detailing such violence, we learn that sectarianism is an organizing principle for armed groups and political factions in Iraq; since 2003 identity violence has reframed the lived experience for many Iraqis, indicating that there have been brutal attacks by both Muslim sects.[7] Other documents refer to outbreaks of sectarian violence in 2020 and 2021.[8]
[27] I am satisfied that the treatment of Sunnis by Shia militias would be persecutory, and I conclude on a balance of probabilities that the principal claimant’s fear of persecution in Iraq is well founded.
Minor claimants
[28] I find also on a balance of probabilities that the minor claimants’ fear of persecution is well founded, based on their young age and dependency on the principal claimant within the above-noted climate of sectarian violence in Iraq. The persecution is in the form of kidnapping or abduction by militias aiming to harm the principal claimant.
State Protection
[29] Except when the state is in complete breakdown, states must be presumed capable of protecting their citizens. Granted the situation in Iraq is not entirely stable, and there is some evidence of some forms of breakdown, I find that adequate state protection would not be reasonably forthcoming in this particular case. The objective evidence indicates that state protection in Iraq is unlikely in most cases due to a limited capacity to enforce law and order in the country.[9] Another report notes that police are unable to protect citizens against violent attacks, and they are not even able to protect all the government employees. It also notes that reports of sectarian violence and killings were ongoing, and they were committed with impunity. As there is a limited capacity to enforce law and order in the country, state protection is unlikely in most cases.[10]
[30] In fact, the Iraqi Special Forces, including the police, continue to themselves be targets of attacks, and this also weakens their ability to provide protection to civilians. The rule of law is compromised by actual or perceived corruption in law enforcement agents and the judiciary. The criminal justice system is weak, and perpetrators connected to political or security elite often enjoy immunity.[11] Accordingly, I find there is no operationally effective state protection for these claimants, and the presumption of state protection is rebutted by clear and convincing evidence that establish that state protection is not adequate in this case.
Internal Flight Alternative
[31] At the hearing I asked the principal claimant if she could return to any part of Iraq, including Baghdad. She stated there is no place in the country where she could live safely as a Sunni with Shia family members. She gave examples of her own relatives having had to leave Baghdad because they are Sunni, and she stated that the militia groups affiliated with Sadr are active throughout the country. Therefore, I am satisfied that the principal claimant and the minor claimants would face serious possibilities of persecution throughout the country and no viable IFA is available to them.
CONCLUSION
[32] For all of the foregoing reasons, I conclude that the three claimants are Convention refugees. I therefore accept their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibits 2.1, 2.2, 2.3, and 2.4.
[3] Exhibit 1.
[4] Exhibit 3. National Documentation Package for Iraq at tab 2.1: Iraq. Country Reports on Human Rights Practices for 2022. US Department of State, 20 March 2023.
[5] Ibid.
[6] Exhibit 3. National Documentation Package for Iraq 31 March 2023.
[7] Exhibit 4 at tab C-18: Iraq’s Sectarian Relapse: Lessons from the “Shia House”, The Century Foundation, September 12, 2023.
[8] Exhibit 4 at tab C-22, Remaking Iraq: How Iranian-Backed Militias Captured the Country, Justsecurity.org, March 20, 2023.
[9] Exhibit 3. National Documentation Package for Iraq at tab 1.7: International Protection Considerations with Regard to People Fleeing the Republic of Iraq, UNHCR May 2019.
[10] Exhibit 3. National Documentation Package for Iraq at 1.20: Protection Landscapes in Diyala and Kirkuk, Iraq, OXFAM 5 March 2020.
[11] Exhibit 3. National Documentation Package for Iraq at tab 1.7: International Protection Considerations with Regard to People Fleeing the Republic of Iraq, UNHCR May 2019.