2024 RLLR 132
Citation: 2024 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: February 6, 2024
Panel: W. Chin
Counsel for the Claimant(s): Joshua A Blum
Country: Eritrea
RPD Number: TC3-12452
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX XXXX as a citizen of Eritrea who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the IRPA.
ALLEGATIONS
[3] The claimant’s full allegations are set out in the claimant’s Basis of Claim (BOC) form and related narrative.[2] In summary the claimant alleges that he faces a fear of persecution or harm, at the hands of Eritrean authorities, based on a fear of forced service in the national service of Eritrea.
[4] The claimant was born in XXXX, Saudi Arabia, to Eritrean parents. The claimant has not lived in Eritrea, but he opposes the Eritrean regime, and as such, he opposes any form of conscription, and does not wish to serve the Eritrean regime in any manner, which the claimant feels amounts to death torture, or imprisonment.
[5] The claimant’s parents immigrated to Saudi Arabia in 1989 and 1990, and the claimant was born there. They lived in Saudi Arabia on a temporary basis, on an employer sponsor linked to his mother’s employment. Once the claimant reached 18, he was no longer permitted to be a dependent on his mother’s permit. He obtained a U.S. visa in XXXX 2022, and transited through the United States, before arriving in Canada on XXXX XXXX, 2022, where he filed a claim upon entry, alleging that he fears persecution in Eritrea, which include arbitrary detention, torture, or abuse due to him being forced into national service upon return to Eritrea.
DETERMINATION
[6] I find that the claimant is a Convention refugee pursuant to s.96 of the IRPA.
ANALYSIS
Identity
[7] The claimant’s identity is established by supporting documentation filed including a copy of his Eritrean passport.
Nature of the Harm
[8] I have examined these claims under section 96 of the IRPA. The conditions of national service are exploitive, for an indeterminate period, and her refusal to comply would be seen as insubordinate, and an opposition to the Eritrean government. He alleges that his refusal would subject him to prison, exposing him to harsh, and inhumane treatment, forced labour, and other forms of physical, and psychological abuse.
[9] I conclude that the risk the claimant describes constitutes persecution based on at least one of the grounds prescribed in section 96, specifically his imputed political opinion rooted in his desire to avoid forced national service.
Credibility
[10] There were no material inconsistencies or contradictions between the claimant’s BOC and other evidence before me for which a reasonable explanation has not been provided. In this case, I have no valid reason to question the above noted allegations.
[11] The claimant has provided significant evidence of his prior residence in Saudi Arabia. He disclosed his birth certificate,[3] and Saudi resident ID card.[4] He also disclosed a Saudi electronic exit and entry visa, of the claimant confirming expired status as of XXXX XXXX, 2022.[5]
[12] The narrative also gives a detailed explanation of his decision not to file a claim in the United States, the transit country where he stayed for approximately 2 days prior to entering Canada and filing a refugee claim. He states that he believed Canada to be much more humanitarian, than that of the U.S. asylum system, and that it was always his intention to travel to Canada.[6] I find this is a reasonable explanation, and I draw no negative inference as to the claimant’s overall credibility, nor do I find that this diminishes his subjective fear, as a result of any perceived failure to claim in the United States.
[13] Due to the claimant’s age and Eritrean citizenship, and along with the evidence that he would likely be targeted due to his imputed political opinion, stemming from his refusal to join the national service, I find that the claimant has established his subjective fear, on a balance of probabilities, and that this fear is forward-looking.
Well-Founded Fear of Persecution and Risk of Harm
[14] Given that there are no serious credibility issues with respect to the claimant’s allegations, coupled with the documentary evidence set out below, I find that the claimant has established an objective basis for his fears.
[15] Item 2.1 of the Country Reports on Human Rights Practices, issued by the U.S. Department of State indicates that the most significant human rights issues were the severe restrictions on civil liberties, including arbitrary deprivation of life; disappearances, torture, and other cruel, inhuman and degrading treatment by security forces, including for political and religious beliefs. Eritrea is a highly centralized, authoritarian regime under control of President Isaias Afweki.[7]
[16] Also considering the claimant has the profile of a deserter, and an imputed political opinion as anti-government, Amnesty International considers that the National Service, “robs Eritreans of choice over key aspects of their lives”, the report goes on to state:
The experiences of people who are caught, arrested, and arbitrarily detained for attempting to leave the country is indicative of the likely treatment failed asylum-seekers will face if they were forcibly returned to Eritrea. There is a high likelihood that anyone of approximately National Service age who is returned to Eritrea would be subject to arbitrary detention without charge, as is the widespread pattern, would face possible torture or other ill-treatment to extract information on how and with whom they left the country and then would be conscripted or returned to indefinite National Service. It is possible that some would avoid such a fate, but as the implementation of punishments is arbitrary, the risk must be considered to apply in every case.[8]
[17] Given the claimant’s age, there is also sufficient credible evidence to find that there is a serious possibility that persons, in a position such as the claimant, would be forced into national service. Item 8.1, states “Anyone who has performed national service has, in addition to a mandatory attendance obligation for refresher training until the age of 50 (National Service law of 1995). All people from 18 to 70, moreover, are obliged to attend the so-called People’s Army.”[9] The US Department of State reports that, “Failure to participate in the militia or national service could result in detention.”[10]
[18] The objective evidence also indicates that the claimant’s submission into national service would carry the risk of forced labour, ill-treatment and harsh punishment, including corporal punishment, which constitutes a violation of the claimant’s human rights, which is further intensified by the fact that her eventual and inevitable refusal or inability to carry out these obligations would result in imprisonment due to perceived opposition to the government.
[19] This is further corroborated by the objective evidence indicating that conscription does occur in Eritrea. Military service includes forced labour, in harsh conditions for an initial period of 18 months but can continue indefinitely. A report by the United States, Department of State named Country Reports on Human Rights Practices for 2021, released in April 2022, states:
The country’s national service obligation amounted to a form of forced labor. By law all citizens between ages 18 and 50, with limited exceptions, must perform national service. There is no time limit on this service. The result was an indefinite extension of the duration of national service, in some cases for more than 20 years; discharge from National Service was arbitrary and procedures for doing so remained opaque. Conscripts were employed by all governmental and party-run agencies, including for-profit enterprises, in conditions of forced labor.[11]
[20] Based on the above noted objective evidence, the panel finds that the claimant would likely face persecutory treatment, or a risk to life, a risk of torture, or be subjected to cruel and unusual treatment or punishment should he be forced to return to Eritrea, on a balance of probabilities. I find that the claimant’s subjective fear has an objective basis.
State Protection
[21] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate.
[22] In this case, the agent of persecution includes the Eritrean state, and I find it objectively unreasonable for the claimant to seek out any further protection, and that state protection could not be seen as reasonably forthcoming.[12] I find the presumption of state protection is rebutted in this case with clear and convincing evidence.
Internal Flight Alternative (IFA)
[23] Similarly, given the agent of persecution is the state, and that the claimant would be subjected to similar treatment in all parts of the country, I find that the claimant’s IFA analysis fails at the first prong of the test.[13] Therefore a viable IFA is not available to this claimant, as he would face a serious possibility of persecution throughout Eritrea, even if he were to relocate.
CONCLUSION
[24] The claimant is a Convention refugee under section 96 of the IRPA.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
[2] Exhibit 2, Basis of Claim Forms (BOC).
[3] Exhibit 5, page 1.
[4] Exhibit 5, page 19.
[5] Exhibit 5, page 24.
[6] Exhibit 2, Basis of Claim, Narrative, para 13.
[7] Exhibit 3: National Documentation Package, Eritrea, October 31, 2023, tab 2.1: Eritrea. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[8] Exhibit 3: National Documentation Package, Eritrea, October 31, 2023, tab 8.2: Just Deserters: Why Indefinite National Service in Eritrea has Created a Generation of Refugees: Revised Edition. Amnesty International. 1 August 2016. AFR 64/4794/2016.
[9] Exhibit 3: National Documentation Package, Eritrea, October 31, 2023, tab 8.1: Eritrea: National service, Norway. Norwegian Country of Origin Information Centre, Land info, 20 May2016.
[10] Exhibit 3: National Documentation Package, Eritrea, October 31, 2023, tab 2.1: Eritrea. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023. p. 21
[11] Exhibit 3: National Documentation Package, Eritrea, October 31, 2023, tab 2.1: Eritrea. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
[12] Canada (Attorney General) v Ward, [1993], 2 S.C.R. 689.
[13] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).