Tag: All Case Types

2022 RLLR 21

Citation: 2022 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: July 27, 2022
Panel: Alannah Hatch
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: VC2-00904
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division in the claims of XXXX XXXX (the “principal claimant”), XXXX XXXX (the “associate claimant”) and XXXX XXXX (the “minor claimant”). The claimants are citizens of India and are seeking refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2] The principal claimant was appointed the Designated Representative for the minor claimant at the outset of the hearing.

ALLEGATIONS

[3] The details of the claimants’ allegations are fully set out in the Basis of Claim (BOC) forms and were supplemented by a BOC addendum and oral testimony.[1] In summary, the claimants fear persecution in India from goons associated with the Congress political party because the principal claimant is a supporter of the XXXX XXXX XXXX XXXX XXXX political party. In addition, the claimants fear the police because they have accused the principal claimant of financially supporting terrorists and because they believe the police work at the behest of the Congress party.

DETERMINATION

[4] I find that the claimants are Convention refugees as they have a well-founded fear of persecution for at least one Convention ground, namely membership in a particular social group, as the claimants are members of the “Backward Caste“ XXXX, also known as Dalits. I therefore have not assessed the claimants’ allegations regarding their fears of Congress party goons or the police.

ANALYSIS

Identity

[5] The Claimants’ identities as nationals of India are established on a balance of probabilities by the sworn statements in their BOC forms and the copies of their Republic of India passports.[2]

Nexus

[6] I find that there is a nexus between the claimants’ allegations and the Convention ground of membership in a particular social group because the claimants are members of the XXXX Caste, or Dalits.

Credibility

[7] The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[3] The presumption of truthfulness does not apply to inferences or speculation.

[8] In this case, I have no reason to doubt the truthfulness of the claimants. The principal claimant testified in a straightforward manner and gave detailed answers to my questions about how he was treated as a Dalit in his village of XXXX, Punjab. The principal claimant provided spontaneous testimony about Dalits being forbidden to build a sports field in XXXX solely because they were Dalit, and how Dalits were not allowed to mingle with others in the community during celebrations because they were Dalit. Both the associate claimant and principal claimant testified about how they were treated at school due to being Dalit. The associate claimant testified other students refused to play with her and she was treated differently by teachers because she was Dalit. In addition, the claimants provided corroborating evidence including a “Backward Caste Certificate for the principal claimant’s father, indicating he is from the XXXX XXXX.[4]

[9] I find that the claimants have established on a balance of probabilities that they are Dalits. I asked the principal claimant why he did not have a Certificate in his own name, and he testified that they issued only one certificate for the family, and that both of his parents were of the XXXX XXXX. The associate claimant testified she did not have a certificate; however, I accept on a balance of probabilities that she is of the same XXXX XXXX based on her credible testimony.

Well-Founded Fear of Persecution and Risk of Harm

[10] I find that the claimants’ subjective fear is objectively well-founded.

[11] Regarding Dalits, Minority Rights Group International states the following:

Amidst India’s cultural traditions is a rigid caste structure, a continuing symbol of identification and social stratification. 16.6 per cent of the total population of India consists of the scheduled castes which includes ‘Dalits’ also known as Harijans, or ‘Untouchables’. The Indian Constitution requires the government to define a list or schedule of the lowest castes in need of compensatory programmes…

Dalits in rural areas suffer from entrenched caste discrimination, including ‘untouchability’, violence and harassment. Violence against Dalits is widespread, driven by the persistent effects of India’s caste system and the lack of justice for victims.

The constitutionally guaranteed affirmative action policies have had some positive impact in increasing the representation of Dalits in educational institutions, governmental jobs and elected positions. Notwithstanding this improvement, Dalits continue to remain the most underprivileged class of Indian society: the stigma they face remains evident to this day. Dalits in general continue to survive under inhumane, degrading conditions.[5]

[12] The International Dalit Solidarity Network states:

[u]ntouchability practices in India remain widespread in both urban and rural settings. These include dominant castes not touching Dalits, not letting them use the same mugs, utensils etc., not entering Dalit houses, not allowing their children to play with Dalits or to be in a relationship with a Dalit. There are thousands of variations of untouchability practices and the severity and prevalence vary depending on location.[6]

[13] The Navsarjan Trust also states that untouchability “is present in nearly every sphere of life and practiced in an infinite number of forms”. Examples include Dalits being refused entry to barber shops or temples, being forbidden to use wells, and Dalit children may be asked to clean the toilets and to eat separately at schools.[7]

[14] The treatment of Dalits has not improved in recent years. The 2015 National Dalit Movement for Justice report[8] provides a list of “new forms of atrocities” against Dalits that were proposed additions to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (“POA Act”). At the time, the POA Act had 22 offences listed as atrocities

which include forcing to drink or eat any inedible or obnoxious substance; dumping excreta; parading naked; occupying or cultivating any SC’s land; forcing or intimidating to vote or to vote to a particular candidate; instituting false, malicious or vexatious suit; insulting or intimidating to humiliate in any place within public view; exploiting a woman sexually; and mischief by fire or any explosive substance to cause damage to any SC’s property; etc.

[15] The National Dalit Movement for Justice report, however, states:

numerous new forms of caste-based atrocities have been identified in …(and) perpetrated in both rural and urban regions. These forms are widespread and systemic in nature. The POA Amendments Bill introduced in the Lok Sabha in 2014 and pending before the Parliament has identified and included these additional forms of atrocities.

[16] The new forms of atrocities listed in the POA Amendments Bill are extensive and numerous and divided into five categories. As an example, the first category of proposed amendments to the POA Act are offences related to assault on dignity such as:

putting inedible or obnoxious substance into the mouth; garlanding with footwear, removing clothes, tonsuring of head, removing moustaches, painting face or body; compelling to dispose or carry human or animal carcasses, compelling to dig graves; manual scavenging; disrespecting any late persons held in high esteem to SCs/STs; attempting to promote feelings of enmity and hatred against SCs/ STs; and imposing social or economic boycott.

[17] As the Navsarjan Trust, supra, succinctly relates, the objective evidence unanimously demonstrates that untouchability is “practiced in an infinite number of forms” which are rightfully labelled ‘atrocious’.

[18] I find Dalits face systemic serious violations of their fundamental rights that amount to persecution. I find the claimants have established on a balance of probabilities that they have experienced discrimination since childhood as Dalits. I find there is a serious possibility the claimants will face continued discrimination as Dalits if they were to return to India and that the treatment cumulatively amounts to persecution.

State Protection

[19] There is a presumption that, unless in complete breakdown, states are capable of protecting their citizens. I find that that the claimants have rebutted the presumption of state protection and I find there is no adequate state protection for the claimants.

[20] The Australian DFAT, quoted in the UK Home Office Country Policy and Information Note, reports:

Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.[9]

[21] In the most recent “Status of Policing in India Report”, 32 percent of those interviewed in conflict-affected regions believed the police would favour an upper caste person in a criminal investigation over a Dalit.[10]

[22] The Australian DFAT country report indicates:

corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors…Since 2014, India has consistently ranked low on the (World Justice Project Rule of Law) indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78th place in 2018).[11]

[23] I find that the claimants have established on a balance of probabilities that adequate state protection for them in India is not available because the police, judiciary and other government agencies are reported to be not only corrupt, but also biased against Dalits.

Internal Flight Alternative (IFA)

[24] The Federal Court of Appeal in Rasaratnam,[12] developed a two-prong test when assessing IFA, which entails a consideration of two matters: (1) whether there is a serious possibility of the claimant being persecuted or, on the balance of probabilities, in danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the IFA and (2) whether conditions in the IFA are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. The onus is on the claimants to demonstrate they do not have a viable IFA.

[25] Based on the evidence before me, I find that the claimants would face a serious possibility of persecution throughout India and there is no IFA available to them.

[26] The persecution suffered by Dalits is widespread and systematic and occurs in both rural and urban areas. I note that the objective evidence, reviewed above, regarding the persecutory treatment of Dalits in India is not location specific. While cities provide some limited level of anonymity, social networks would be essential in finding employment and housing in urban areas.[13] Those without social networks would face high discrimination in jobs and housing and often end up at the bottom of the social hierarchy. Although Dalits are reported to have increasing opportunities in cities, including a system of quotas to ensure employment of Dalits in certain sectors such as educational institutions and the federal public service, the quota system can generate hostility towards Dalits.[14] “Severe inequalities persist, however, with Dalits making up a large proportion of those engaged in the urban informal labour sector as domestic workers, rickshaw-pullers, street vendors and other poorly paid sectors”.[15]

[27] There is no evidence before me to indicate that the claimants have a social network in the proposed IFAs of Delhi or Mumbai.

[28] I find that the claimants face a serious possibility of persecution in either Delhi or Mumbai because they are Dalits and as such the IFA fails on the first prong of the Rasaratnam test. I find that there is no IFA available to the claimants.

CONCLUSION

[29] When I consider the claimants’ personal profiles, the objective country evidence, the lack of state protection and lack of a viable IFA, I find that the claimants are Convention refugees and I accept their claims.

(signed) Alannah Hatch

July 27, 2022

[1] Exhibits 2.1, 2.2, 2.3 and 4.

[2] Exhibit 1.

[3] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302

[4] Exhibit 5.

[5] National Documentation Package, India, 30 June 2022, tab 13.10: India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.

[6] National Documentation Package, India, 30 June 2022, tab 13.4: Treatment of Dalits by society and authorities; availability of state protection (2016-January 2020). Immigration and Refugee Board of Canada. 9 January 2020. IND106277.E.

[7] Ibid.

[8] National Documentation Package, India, 30 June 2022, tab 13.6: Chapter 2: Nature and extent of caste based atrocities. Chapter 3: Response of enforcement authorities: Police. Chapter 4: Response of the Judiciary. Equity Watch 2015: Access to Justice for Dalits in India. Swadhikar – National Dalit Movement for Justice. Nalori Dhammei Chakma. 2015.

[9] National Documentation Package, India, 30 June 2022, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

[10] National Documentation Package, India, 30 June 2022, tab 10.11: Status of Policing in India Report, Volume I 2020-2021: Policing in Conflict-Affected Regions. Common Cause; Centre for the Study of Developing Societies. 2021.

[11] National Documentation Package, India, 30 June 2022, tab 1.5: DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.

[12] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

[13] National Documentation Package, India, 30 June 2022, tab 13.4: Treatment of Dalits by society and authorities; availability of state protection (2016-January 2020). Immigration and Refugee Board of Canada. 9 January 2020. IND106277.E.

[14] Ibid.

[15] National Documentation Package, India, 30 June 2022, tab 13.10: India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.

All Countries Uganda

2022 RLLR 20

Citation: 2022 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: December 22, 2022
Panel: Kay Scorer
Counsel for the Claimant(s): Solomon Orjiwuru
Country: Uganda
RPD Number: VC2-00608
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim for refugee protection of XXXX XXXX (the Claimant), a citizen of Uganda, who claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).[i]

[2] On June 29, 2022, the Minister submitted a Rule 21 Cross Disclosure Application (Rule 21 Application) to the RPD.[ii] As set out in the Rule 21 Application, the Minister requested that the RPD cross disclose the Basis of Claim form and TRV application for the claimant (the BOC)[iii] with the Basis of Claim forms and TRV applications for approximately 16 other claimants (file numbers listed in the Rule 21 application) due to similar details contained in each claimant’s application for Temporary Resident Visas to visit Canada, the date of and route of entry into Canada, the Canadian contact address, the reasons for/details of their claim for protection, and the similar formatting of their BOC allegations. The RPD granted the Rule 21 Application. In the said Rule 21 Application, the Minister notified the parties that it wishes to intervene by making observations and submitting evidence in all claims.

ALLEGATIONS

[3] The claimant’s full allegations are contained in his Basis of Claim form, additional narrative, and were supplemented by his testimony at the hearing.[iv] Summarized only briefly, the claimant fears persecution in Uganda on the basis of his political opinion. The claimant has been an active supporter of the National Unity Party (the NUP) and has held roles within the party. As a result of the claimant’s political involvement, he has been targeted by the state and its agents, assaulted, harassed and threatened. The claimant fears similar or worse treatment in Uganda on the basis of his political opinion should he return.

DETERMINATION

[4] After considering the claimant’s testimony and the documentary evidence, I find the claimant is a Convention refugee pursuant to s. 96 of the Act. My reasons are as follows.

ANALYSIS

Nexus

[5] The claimant’s allegations establish a nexus to the Convention on the ground of political opinion. I have therefore analyzed the claim pursuant to section 96 of the IRPA.

Identity

[6] The claimant’s identity is established, on a balance of probabilities, by the documentary evidence before me, including a copy of his Ugandan passport in Exhibit 1.

Credibility

[7] Pursuant to the Maldonado principle, the claimant benefits from a presumption of truthfulness. I find, on a balance of probabilities, the claimant is credible.

[8] The claimant’s testimony was direct, spontaneous, and consistent. The claimant was able to respond to questions in a forthcoming manner. I asked numerous questions about the claimant’s past involvement in politics in Uganda. The claimant was able to provide ample description about all of his roles within the NUP and his aspirations for running as a candidate for the party. The claimant provided very detailed and spontaneous testimony about his past political passions, including running for perfecter positions in elementary, primary and high school, his official roles as a speaker and later president of a student group at Kampala International University, and his previous support for the FDC and why he ultimately transitioned his support from FDC to the NUP. To these and many other questions, the claimant gave responses which were materially consistent with his narrative, and responses which provided further detail about the claimant’s allegations. I find the claimant was a credible witness, on a balance of probabilities, relating to his allegations of political involvement and risk in Uganda.

[9] In addition, the Claimant submitted documentary evidence to corroborate his claim, all of which can be found in Exhibits 6, 7 and 9, including medical records from injuries sustained in attacks by state agents, a copy of his NUP membership card, NUP documents corroborating the claimant’s official roles within the organization and the risk he has faced on the basis of his involvement with the NUP, a letter from the claimant’s spouse corroborating that the authorities continue to be motivated in harming the claimant. I do not doubt the authenticity of these documents, and I assign them significant weight as they corroborate the claimant’s central allegations.

[10] The Minister raised various credibility concerns including (i) the similarities between the claimant and the other claimants relating to the basis of their TRV applications to Canada and their contact information in Canada (with no claimant referencing this connection) and (ii) the striking similarity in the Basis of Claim form between the claimant and the other Rule 21 Application claimants. Specifically, the Minister submits that because none of the claimants made reference to one another in their applications, their arrival to Canada was likely facilitated by the same agent who helped them fabricate their information, including their similarly drafted Basis of Claim forms and narratives made in their applications for protection. These concerns will be addressed below.

TRV Application Issues – Rule 21 Application

[11] Based on the Rule 21 Application which was granted by the RPD, the TRV applications between all 16 claimants were cross disclosed. The TRV applications were based on the same conference attendance and contained similar supporting documentation to facilitate the obtaining of a visa to Canada.

[12] I asked the claimant to explain how he obtained his visa to Canada. In testimony, the claimant explained that he relied on the assistance of an agent, organized by the NUP party, for obtaining the visa. The claimant provided only his passport to the agent. When I asked the claimant how the agent would have gotten access to some of the other supporting evidence (i.e. educational documents, certificates, employment letters, etc) the claimant advised that all of these documents had already been provided to the NUP and it is possible the agent obtained them from the NUP directly. The claimant advised that he never saw the application for a visa before it was submitted, did not sign the forms included in the application, and was entirely unaware of the contents of the application, including the fact that it was for a TRV to attend a conference. The claimant also explained in testimony that he was unaware of the contents of the visa application until the RPD cross-disclosed the TRV applications pursuant to the Rule 21 application.

[13] I accept that the claimant relied entirely on an agent facilitated by the NUP to obtain the visa, and that he was not privy to the contents of the visa application as a result. I find this to be a reasonable explanation.

[14] I agree with the Minister that these cases demonstrate, on a balance of probabilities, that these claimants used the same agent for facilitating their travel to Canada. I do not find, however, that this undermines the claimant’s allegations that he relied on an NUP agent to obtain a visa to Canada. I find it is a reasonable to believe that there are agents in Uganda who facilitate the travel of multiple claimants at the same time, using the same basis for travel, without the knowledge of those accessing the agent’s services. The actions of the agent would be outside of the control or knowledge of the claimant. I also find it reasonable to believe that the NUP as a party may use the same agent, throughout Uganda, to facilitate the flight of numerous people at the same time from Uganda. I find the claimant’s explanation to be reasonable.

[15] I also asked the claimant about the other claimants living at the same address. The claimant stated that he did not know any of the other claimants living at his address until after he had arrived in Canada. He stated that the agent advised him to talk to no one, including those at his home, and to tell no one about his reasons for being in Canada. As a result, the claimant did not discuss with the other claimant the reasons for being in Canada, and that it was not until the RPD disclosed the Basis of Claim forms that the claimant became aware of the reason for the other claimant’s travel to Canada. Again, I find this explanation to be reasonable. The claimant did not mention these other claimants when he filed his own claim for protection because, when he filed his claim, he was not aware of the reason why the other claimants were in Canada, and unaware of the connections related to the use of the same agent in Uganda. I find the claimant’s explanation to be reasonable.

Similarity in the Basis of Claim forms – Rule 21 Application

[16] Based on the Rule 21 Application, it is notable that the Basis of Claim forms are written in a remarkably similar manner, including the use of capital letters and short sentences in the Basis of Claim form itself, and in the format of the majority of the written additional narratives.

[17] The Panel acknowledges that similarities in narratives may service to undermine a claimant’s credibility. As stated by the court in Ravichandran,[v] “courts have found that it is not unreasonable to draw a negative inference as to credibility from unwarranted similarities between a refugee claimant’s narrative and the narratives of other unrelated claimants (Liu v Canada (Minister of Citizenship and Immigration), 2006 FC 695 at para 39; Shi v Canada (Minister of Citizenship and Immigration), 2003 FC 1088 at paras 1, 19).”[vi]

[18] Nonetheless, the court went further to state that “… while decision-makers may rely on their common sense in drawing negative credibility inferences from unwarranted and striking similarities between the testimony of applicants, it is equally true that they must use their common sense to determine whether, in the circumstances of the case, there is a valid reason for the similarity. If there is, it would not be appropriate to find that the similarity casts doubt on the applicant’s credibility (Zhang v Canada (Minister of Citizenship and Immigration), 2006 FC 550 at paras 25-28, [Zhang]).”[vii]

[19] I put to the claimant that there are remarkably similar formats in the Basis of Claims for each of the noted claimants that lead the Panel to believe that the forms were, in some way, completed using the same person/person(s) for assistance, or the same template. The claimant stated he did not have anyone help in completing his Basis of Claim form, and that he is not sure why the other Basis of Claim forms are stylistically like his own. The claimant was adamant that he completed the document himself, with the help of searching for advice online on how to initiate a claim in Canada. The claimant also stated that he completed the form using a shared computer at the residence, and that the documents were saved to the desktop of that computer and would have been available to the other residents. In this way, the claimant submits it is possible that other claimants reviewed his form and completed their documents in a similar fashion.

[20] The Minister submits that the similar formatting may indicate that the claimant’s claim is fabricated. I find there is insufficient evidence before me to demonstrate this to be the case on a balance of probabilities. Instead, while I do not accept the claimant’s testimony that no one assisted him in completing his forms, I do not find this credibility concern undermines the otherwise detailed and credible testimony presented by the claimant in support of his allegations of political persecution and risk. Although the claimant was not forthcoming in explaining who assisted him in completing his form, I find that receiving assistance or following a stylistic template does not necessarily indicate that a claim is fabricated. Given the claimant was able to credibly testify to the contents of his allegations, I find, on a balance of probabilities, that the assistance in completing his Basis of Claim and narrative was limited to the stylistic approach and not a fabrication of its contents.

[21] Informing this finding is the observation that the similarities between the claimant’s Basis of Claim and the other claimants’ documents relates to the stylistic completion of the form and narrative. The style of the answers to the questions in the Basis of Claim form itself are all similar, in capital letters and with the same countries listed in question 6. In contrast, in my review of the Basis of Claim forms disclosed pursuant to the Rule 21 Application, the actual content of the Basis of Claim forms – in particular, the chronology of the risk alleged by the claimant in the case before me – is unique to the claimant and not reiterated by any other claimant. While other claimants express risk for their political opinion and association with the NUP, the claimant was able to credibly testify to his specific experiences in Uganda. Given the country documents do indicate that NUP supporters face persecution in Uganda, I do not find it surprising that a dozen or so supporters have made their way to Canada to seek protection at a similar time, in light of the evidence that such supporters would require protection.

[22] For that reason, while I agree with the Minister that there are striking similarities in the format of narrative of the claimant as compared with the other claimants, I find the contents are unique and supported by the claimant’s credible testimony.

Summary of Credibility Determination

[23] My role is to assess the evidence before me to determine what has been established, on a balance of probabilities. Although I accept the claimant was not truthful about assistance received in the preparation of his BOC, I do not find this to be determinative of the credibility of his allegations of risk. I find there is enough credible evidence before me to establish, on a balance of probabilities, that the claimant has been subjected threats, assaults and harassment in Uganda on the basis of his political opinion.

[24] I find the claimant has established his subjective fears on a balance of probabilities.

Objective Basis

[25] The claimant’s allegations of fear of persecution on his political opinion are supported by the objective documentary evidence. The panel finds the claimant’s claim that he fears imprisonment, torture and death if he is returned to Uganda, at the hands of the NRM ruling party on the grounds of his political opinion and membership in the NUP opposition party, to be objectively well-founded.

[26] Pertaining specifically to political opponents, there is evidence in the National Documentation Package (NDP), for example at item 2.1, that the government committed significant human rights issues including arbitrary killings; forced disappearance; torture; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners or detainees; serious restrictions on free expression and free restrictions on political participations. Opposition activists, local media, and human rights activists reported that security forces killed individuals the government identified as dissidents and those who participated in protests against the government.[viii]

[27] The government continued to target political dissidents subjecting them to intimidation, harassment, arbitrary arrest and detention. There were reports, for example at item 2.2, of restrictions on the rights to freedom of expression, association, and peaceful assembly of political opposition members, journalists, human rights defenders, and students.[ix]

[28] According to item 2.3, violations of freedom of association, assembly, and expression continued in 2019 as authorities introduced new regulations restricting online activities and stifling independent media. The government arrested political opponents and blocks political and student rallies.[x]

[29] Based on the documents evidence cited above, I find that the claimant will face a serious possibility of in Uganda on the basis of his political opinion and involvement. I find that the claimant’s fears are objectively well-founded.

State Protection and Internal Flight Alternative

[30] States are presumed capable of protecting their citizens. In this case, given the state is an agent of persecution I find the presumption has been rebutted. I find there is no state protection available to the claimant in Uganda.

[31] Further, since the state is an agent of persecution and is in control of the entirety of its territory, I find the claimant faces a serious possibility of persecution throughout Uganda. I find there is no viable internal flight alternative available to the claimant in that country.

CONCLUSION

[32] Based on the above analysis, I find the claimant is a Convention refugee pursuant to s. 96 of the Act. His claim is accepted.

(signed) Kay Scorer

December 22, 2022

[i] Immigration and Refugee Protection Act, S.C. 2001, c.27.

[ii] Exhibit 4 – Rule 21 Cross Disclosure Application, Minister of Immigration, Refugees and Citizenship Canada.

[iii] Exhibit 2 Basis of Claim Form

[iv] Exhibit 2 and Exhibit 6.

[v] Ravichandra v. Canada (Citizenship and Immigration), 2015 FC 665

[vi] Ibid at para. 18

[vii] Ibid at para. 19

[viii] Exhibit 3. National Documentation Package for Uganda, 31 August 2022, at tab 2.1. Uganda. Country Reports on Human Rights Practices for 2021. US Department of State April 12, 2022.

[ix] Exhibit 3. National Documentation Package for Uganda, 31 August 2022, at tab 2.2. Uganda. Amnesty International Report 2021/22: The State of the World’s Human Rights. Amnesty International 29 March 2022.

[x] Exhibit 3. National Documentation Package for Uganda, 31 August 2022, at tab 2.3. Uganda. World Report 2022:Events of 2021. Human Rights Watch, January 2022.

All Countries India

2022 RLLR 19

Citation: 2022 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: September 27, 2022
Panel: Olukunle Ojeleye
Counsel for the Claimant(s): Roberto Colavecchio
Country: India
RPD Number: VC2-00259
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the refugee claim of XXXX XXXX (the “claimant”), a citizen of India. He is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[i]

Administrative Matters

[2] The Minister intervened regarding credibility, identity and program integrity on April 05, 2019.

ALLEGATIONS

[3] The allegations are fully set out in the claimant’s Basis of Claim form and his narrative. In summary, the claimant alleges that that he will be harmed and may be killed by a Youth Congress member, XXXX XXXX, whose sister the claimant got pregnant out of wedlock, and the family considered their honour tarnished by the incident. Furthermore, he alleges fear of the Punjabi police acting at the behest of XXXX XXXX.

[4] The claimant met a lady by the name of XXXX XXXX XXXX during his 11th grade schooling. They became attracted to each other and started meeting even after leaving the school. While the claimant was away studying in Singapore, he kept in contact with XXXX. On return to India in XXXX 2016, the claimant and XXXX continued their relationship and began meeting at one of the motels in secret.

[5] In XXXX 2016, XXXX became pregnant. She told her mother of her relationship with the claimant, and her mother took her to a doctor for abortion. When XXXX father and XXXX (the brother) became aware of what had happened, XXXX went with some of his friends to look for the claimant at home, but he was absent.

[6] On XXXX XXXX, 2016, while the claimant was returning home in the evening, he was accosted by two men who were instructed by XXXX to kill him. The claimant was beaten with hockey sticks and an acid was used to remove the tattoo of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant was left for dead and passerby that saw him called the claimant’s father who came and took him to the doctor for treatment.

[7] After being discharged from hospital, the claimant was taken by his father to a friend’s place in Ludhiana because XXXX had returned with some men to the claimant’s residence threatening to kill him for tarnishing the reputation of his family, socially and politically.

[8] The claimant’s friend in Ludhiana advised him that he could not stay in hiding all his life and that relocation within India would be difficult. When he was also advised by a lawyer that he should leave the country to avoid honour killing, the claimant’s friend got him an agent to help facilitate leaving India.

[9] In XXXX 2017, the agent took the claimant to New Delhi and kept him in hiding. The agent later misplaced the claimant’s passport but promised he would get him out of India. On XXXX XXXX 2017, the agent put the claimant on a flight to Canada on a passport with the name of XXXX XXXX. On arrival in Canada, the claimant was met at Vancouver Airport by the agent’s representative who took the false passport from him after the claimant had cleared customs. The claimant was thereafter introduced to someone else who promised to find him work as well as arrange a permanent residency in Canada.

[10] When the claimant tried to stay legally in Canada through work and explained his circumstances as well as fear of honour killing to his employer, he was advised to seek legal support. The claimant thereafter made an application for refugee protection.

DETERMINATION

[11] The panel finds that the claimant is a person in need of protection, pursuant to section 97(1)(b) of the IRPA, because, on a balance of probabilities, he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, should he return to India.

ANALYSIS

Minister’s Intervention

[12] The Minister of Immigration, Refugees, and Citizenship Canada (the Minister) intervened in-writing in this matter on April 05, 2019.[ii]

[13] The Minister noted that the claimant only had the following identity documents with him when he made his refugee claim: a unique identification authority of India card; a card from the electoral commission of India; a Punjab senior secondary school certificate; and a birth certificate that had a translated photocopy without the translator’s attestation. The Minister therefore submitted that the claimant has not proven his identity having failed to produce a copy of his passport, or a copy of the passport as well as other travel documents with which he travelled into Canada under a false identity of Gurpreet Singh.

[14] On May 16, 2022, as part of disclosures made by the claimant, he submitted a copy of his Indian passport to verify his identity. Same disclosure was made to the Minister and the panel did not receive any objections to the disclosure from the Minister.

Identity

[15] The claimant’s identity as a national of India has been established on a balance of probabilities by the sworn statement in his BOC form,[iii] his testimony, his XXXX card and school certificate,[iv] as well as a copy of his Indian passport.[v]

Nexus

[16] The panel finds that the claimant has not established a nexus with a Convention ground. The claimant’s fears do not arise from his political opinion, religion, race or nationality or membership in a particular social group.

[17] The claimant is a victim of crime or personal vendetta. Those who targeted the claimant have done so out of revenge to teach his family a lesson, while the Punjab police have acted against the claimant at the behest of the agents of harm. The Court has held that victims of crime, corruption or vendettas, including blood feuds generally cannot establish a link between their fear of persecution and one of the five Convention grounds.[vi] The panel finds that there is nothing particular about this case which takes it outside these general principles.

[18] The principal claimant fears future criminality which is not connected to one of the five Convention grounds. The panel therefore assessed his claim pursuant to section 97(1) of IRPA.

Credibility

[19] When a Claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[vii] However, this presumption does not extend to inferences, which are conclusions from facts, or speculation, which are allegations without any evidentiary basis.

[20] In assessing the Claimant’s credibility, the Panel has considered potential difficulties that the Claimant may face in giving his testimony including:

the impact of trauma,

cultural and social factors,

the Claimant’s age and educational background,

the unfamiliar hearing environment and the high-stakes nature of refugee proceedings.

[21] On a balance of probabilities, the panel accepts the claimant’s allegations as credible. There were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before the panel which have not been satisfactorily explained.

[22] The claimant submitted numerous documents to substantiate his claim.[viii] These include:

An affidavit from the claimant’s parents explaining that XXXX XXXX with unknown members of his party, and the police, have kept coming to them seeking the claimant’s whereabout. The affidavit further stated that the efforts by the claimant’s parents to reconcile with XXXX XXXX and family have been a failure.

Affidavit from the claimant’s friend in Ludhiana where he was taken by his father after receiving medical treatment on XXXX XXXX 2016.

A medical report from XXXX XXXX that confirmed the injury the claimant received on XXXX XXXX 2016 – “hand burnt with acid, injury on forehead and face swollen” – and the treatment he was provided.

Various media articles as objective evidence.

Upon a review of these documents, the panel finds no reason to doubt their authenticity. The panel places significant weight on them as having probative values in substantiating the claimant’s allegations.

[23] The panel notes that the claimant first arrived in Canada on XXXX XXXX, 2017. He was asked why he did not make a claim then. The claimant testified that he knew very little about Canada and the immigration process. He stated that the agent that got him his visa arranged for someone to meet him in Vancouver who took the passport and documents he travelled with from him, and also arranged for him to start working at a company in Vancouver. He stated that he was told a permanent residence would be arranged for him. He testified that in XXXX 2018 when he asked his supervisor about his application for a permanent residence, and his passport was requested, he narrated how he came into Canada and was at that point advised that he had no legal status in Canada and should go to Montreal to seek advise.

[24] The panel finds the claimant’s explanation regarding his delay in claiming to be reasonable. The panel does not draw a negative inference regarding claimant’s credibility.

Forward Facing Risk

[25] The panel finds on a balance of probabilities that the claimant has been targeted by the Punjabi police at the behest of the family of XXXX XXXX XXXX who feels dishonored by the claimant’s pre-marital relationship with their daughter that resulted in an aborted pregnancy.

[26] According to Subsection 97(1)(b) of the IRPA, a person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

to a risk to their life or to a risk of cruel and unusual treatment or punishment if

the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

the risk is not caused by the inability of that country to provide adequate health or medical care.[ix]

[27] The risk to life, a risk of cruel and unusual treatment or punishment, or death faced by the claimants is captured by subsection 97(1)(b) of the IRPA.

[28] The initial basis for the risk arose from the claimant’s pre-marital relationship family with XXXX XXXX XXXX whose family seek revenge against the claimant for dishonoring them.

[29] The claimant has established on a balance of probability that he is personally at risk. The panel finds that the assault on the claimant in XXXX 2016 by two men who were instructed by XXXX to kill him, and the application of acid on the claimant’s hand XXXX XXXX XXXX XXXX XXXX XXXX XXXX, indicates a high degree of the risk identified above.

[30] Objective evidence corroborates the claimant’s subjective fear of honor killing. It is reported that “‘Honour killings’ do take place in India in cases of alleged adultery, premarital relationships, rape or falling in love against family wishes”.[x] Between 2014 and 2016, India’s Supreme Court registered 288 cases of such killings.[xi] A report by the Law Commission of India indicates that honour-based violence are under-reported, and honour-related murders are often reported as suicides or as accidents. It is reported that the harmful traditional practise has remained persistent in the country.[xii]

[31] Further objective evidence supports the claimant’s fear of how the Indian police treat suspects. The prevalence of corruption within the Indian police and the judicial system is highlighted with bribery reported to be prevalent.[xiii] It is reported that unwarranted arrests and maltreatment during police detentions are regular occurrences in India.[xiv] All this documentary evidence serves as an objective basis for the claimant’s fear and corroborates his allegations.

[32] The panel finds that risk is not faced generally by other individuals in or from that country, as per section (97)(1)(b)(ii). The panel finds that the claimant has been targeted by XXXX XXXX XXXX family who has blamed the claimant for tarnishing the reputation of their family, socially and politically. They have gone further by influencing the Punjab police to seek the whereabout of the claimant. The panel finds that these circumstances change the nature of the claimant’s risk from a generalized risk of indiscriminate crime or police harassment to a non-generalized risk particular to him.

[33] Likewise, the panel finds that the risk faced by the claimant is neither inherent or incidental to lawful sanctions, as per section (97)(1)(b)(iii) since there is no evidence that he has committed a crime for which he is legally wanted, nor the risk the claimant faces caused by the inability of the country of reference to provide adequate health or medical care, as per section (97)(1)(b)(iv).

[34] Based on the evidence before the panel, as well as the credible evidence of the claimant that he has been targeted by the police at the behest of XXXX brother and father, the panel finds that the claimant has established the objective basis of his claim and has further established on a balance of probabilities, that the risk he faces is one that is personal to him, and it is not a risk faced generally by the population of India.

State Protection

[35] The panel finds there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection.

[36] States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.[xv]

[37] The claimant testified that the Punjabi police have been to his parents’ home to inquire about his whereabouts. He testified that he cannot live anywhere in India safely due to the quest by the family of XXXX to redeem their family dignity by killing him for impregnating their daughter, and their involvement of the Punjabi police in seeking his whereabouts. The claimant’s parents attested in an affidavit, that the Punjab police are seeking the whereabout of the claimant under the influence of XXXX family. The panel has no evidence to indicate that the police search for the claimant, is consequent to his being charged with an offence relating to his relationship with XXXX.

[38] Objective evidence indicates that the police, just like the judicial system, is riddled with corruption, with bribes and irregular payments exchanging hands in return for influencing the redress system and obtaining favourable court decisions.[xvi] It is reported that widespread human right abuses are conducted with impunity by the police. It is further reported these abuses include arbitrary detention, torture, kidnappings, and extra-judicial killings.[xvii]

[39] Given the claimant’s testimony, and the attestation from his parent, the panel concludes that on a balance of probabilities, the claimant faces persecution in the hands of the Punjabi police as agents of the state, at the behest of the family of XXXX XXXX XXXX.

[40] The panel finds that the presumption of state protection is rebutted in this case. Since the state through the Punjabi police is an agent of persecution, the panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state considering his particular circumstances.

Internal Flight Alternative

[41] For a viable IFA to exist, two things must be the case. First, the claimants must not face a serious possibility of persecution or, on a balance of probabilities, a danger of torture, risk to life or risk of cruel and unusual punishment in the proposed IFA location. Second, it must not be objectively unreasonable in all the circumstances for the claimant to seek refuge there. Once an IFA has been proposed, the onus is on the claimant to establish that the proposed IFA is not viable. The standard of objective unreasonableness for a proposed IFA is high and requires proof of adverse conditions which would jeopardize the life and safety of the claimant in travelling to and in living in the proposed IFA location.[xviii]

[42] The panel considered whether a viable internal flight alternative exists for the claimant in Dharamshala, Jaipur and New Delhi.

[43] The panel finds that the claimant has established that on a balance of probabilities, he faces serious possibility of persecution in the proposed IFA.

First Prong: Is it safe for the claimant to relocate in India?

[44] The claimant was asked if he has been to Dharamshala, Jaipur or New Delhi before. He testified that he had been to New Delhi when the agent facilitated his exit from India. He was asked if either of the IFAs would be a safe location for him. The claimant testified that he fears that the XXXX family and the police will find him anywhere in India.

[45] To assess whether the claimant would be at risk of harm in the IFA location, the panel considered whether the evidence indicates that the family of XXXX XXXX XXXX have the motivation and interest to continue pursuing the claimant.

[46] The claimant was asked by why he believes that the XXXX brother and family would still be interested in harming him after more than three years, he testified that his parents told him the agents of harm went looking for him about three months ago. The claimant testified that XXXX family are politically active and influential. The claimant did not provide any evidence to establish how XXXX family would be able to influence the Youth Congress and the Congress Party in Dharamshala, Jaipur or New Delhi to harm him.

[47] The panel further considered whether the agents of persecution have the means to locate the claimant. The claimant testified that if he were to move to any of the proposed IFAs, he would have to submit identifications before he is able to rent an accommodation and that such identification would be subjected to verification with the police in Punjab. He further testified that as soon as the local police receives information about his whereabout, XXXX family would be aware of his location. He stated that XXXX family would then utilise their connections with the Youth Congress and the National Congress Party to influence the police to arrest the claimant wherever he is.

[48] The panel accepts the claimant’s allegations that he has been targeted by Punjabi police at the behest of XXXX family. Although the claimant did not provide any evidence to establish that he is legally and officially wanted by the police, the panel is mindful of objective evidence that “police authorities in India are able to track and locate persons of interest, depending on the heinousness of the crime and the pressure received from political authorities”.[xix] It is reported that the police in India are susceptible to endemic corruption which results in the undue influence of the police by those able to afford bribes that may be demanded.[xx] Even though the tenant registration system is noted as limited in its effectiveness, it is reported that it can be used to verify the history of any tenant “whether the person had any criminal involvement or absconding from other states”[xxi].

[49] Based on the testimony that XXXX family together have been seeking the claimant’s whereabout to redeem the perceived tarnished image of their family, the objective evidence already cited about honor killings in India, and the allegations that the Punjab police are seeking to know the claimant’s whereabout at the behest of XXXX family, the panel finds that on a balance of probabilities, XXXX family have sufficient interest and motivation to continue to seek the claimant’s whereabout in India.

[50] Furthermore, the panel finds on a balance of probabilities that if the claimant’s identity is verified through the tenant registration system with the Punjab police, the Punjab police under obligation to XXXX family may divulge knowledge of the claimant’s location in India, thereby providing a means for XXXX family as agents of persecution to locate and harm the claimant in the proposed IFAs.

[51] Based on the evidence before it, the panel finds that the claimant has provided sufficient evidence to demonstrate that the agents of persecution are motivated and have the capacity to locate and harm him in the proposed IFA. Accordingly, the panel finds that the claimant does face a serious possibility of persecution in India.

[52] Given the findings on the first prong of the IFA test, the panel finds that there is no viable internal flight alternative for the claimant within his country, and there is no need to examine the second prong of the IFA test.

CONCLUSION

[53] Considering the preceding, the panel concludes that the claimant has established that he is a person in need of protection, pursuant to section 97(1)(b) of the IRPA. The panel therefore accepts his claim.

(signed) Olukunle Ojeleye

September 27, 2022

[i] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[ii] Exhibit 4.

[iii] Exhibit 2.

[iv] Exhibit 1.

[v] Exhibit 5.

[vi] Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at

para 10.

[vii] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)

[viii] Exhibits 5.

[ix] Immigration and Refugee Protection Act, S.C. 2001.

[x] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5. DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.

[xi] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 5.10: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020). Immigration and Refugee Board of Canada. 4 June 2020. IND200256.E..

[xii] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 2.11: Compilation on India. Office of the United Nations High Commissioner for Human Rights. 22 February 2017. A/HRC/WG.6/27/IND/2.

[xiii] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5.

[xiv] Exhibit 3, National Documentation Package, India, 30 June 2022, item 10.10. Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

[xv] Ward [1993] 2 S.C.R. 689

[xvi] Ibid

[xvii] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 10.10: Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

[xviii] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, Court of Appeal.

[xix] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 10.13: Databases, including the tenant registration (or tenant verification) system, the Crime and Criminal Tracking Network and Systems (CCTNS), and POLNET; police access to these databases and their ability to track individuals; cases of individuals … Immigration and Refugee Board of Canada. 7 June 2022. IND201036.E..

[xx] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5. DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.

[xxi] Ibid.

All Countries Nepal

2022 RLLR 18

Citation: 2022 RLLR 18
Tribunal: Refugee Protection Division
Date of Decision: February 10, 2022
Panel: Kay Scorer
Counsel for the Claimant(s): Ramesh Karkee
Country: Nepal
RPD Number: VC1-07330
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: I have considered your testimony and the other evidence before me and I am prepared to provide you with my decision orally. These are the reasons for the decision in the claim of XXXX XXXX, a citizen of Nepal, who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. In rendering my reasons today, I have considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution.

Allegations

[2] The claimant’s allegations are contained in full in her Basis of Claim form and very detailed narrative which can be found in Exhibit 2. Summarized only briefly, the claimant alleges that she is at risk of persecution in Nepal from persons associated or affiliated with Maoist groups because of her involvement with and support of the Nepal Women’s Association which is women network of the Nepali Congress Party. The claimant is a known women’s rights activist in Nepal. The claimant alleges that she has been threatened, extorted and physically attacked by Maoist persons in the past and that the attackers continue to pursue her in that country.

Determination

[3] I find the claimant is a Convention refugee. I find the claimant has established her claim has a nexus to the Convention ground of political opinion. I have therefore assessed this claim under section 96 of the Act.

ANALYSIS

Identity

[4] I find the claimant has established her identity on a balance of probabilities by her testimony and by the copy of her passport which can be found in Exhibit 1.

Credibility

[5] Pursuant to the Maldonado principle, the claimant benefits from a presumption that her allegations are true. In this case, I have no reason to doubt the truthfulness of the claimant. She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. She was detailed, passionate, consistent, forthcoming. Overall, I found the claimant to be a compelling witness and I believe what she has alleged.

[6] The claimant also supported her allegations with significant evidence, including plenty of identification documents, certificates for work and promoting the rights of women in Nepal and for her involvement in politics, photographs of the claimant at political events including events where she was receiving honours, membership documents for the Women Network of the Nepali Congress Party, a copy of a press release by the Nepali Congress Party relating to the claimant’s work in Nepali, a threat letter from a communist party of Nepal, police report, medical records, and a supporting statement from the claimant’s husband. I have no reason to doubt the authenticity of these documents. I assign them significant weight as they help establish the material elements of the claimant’s allegations, namely her political opinion and the risks she faces in Nepal on the basis of this opinion.

[7] I have considered whether the claimant’s failure to claim in Canada and her subsequent twice return to Nepal undermines the credibility of the claimant’s subjective fear and I find it does not. The claimant made two trips to Canada before her current trip where she made her claim for protection. She first arrived in Canada in XXXX 2018 and returned to Nepal in XXXX 2018. On the second trip, she arrived in Canada in XXXX 2019 and again returned to Nepal in XXXX 2020. The claimant finally fled for the last time in XXXX 2020.

[8] The claimant testified that her first return was because her visa had run out in Canada and she was hopeful the situation would have tempered in Nepal after a period of time had passed. She states she was hopeful because there had been no indications that Maoist persons had been pursuing her since leaving Nepal. Further, the claimant testified that her second return was because her husband had been in a serious motorcycle accident and she had no choice but to return to care for him and her family. She also testified to having read about Maoist members being arrested by the state. During the last trip to Nepal, the claimant took efforts to minimize her movements. Unfortunately, it was during this second trip when the claimant herself was viciously assaulted and hospitalized by Maoist persons.

[9] While it is disappointing that the claimant would return to a country that she fears, I find that ultimately the evidence before me does establish on a balance that the claimant subjectively fears a return to Nepal and that she has been targeted by Maoist factions for her political activism. On a balance of probabilities and in considering the circumstances of this case, I find it reasonable that the claimant would be hopeful that the situation would become safer in Nepal. I also accept that she believed, however misplaced, that her risk had subsided at the time that she returned for the first time. Obviously, for me it’s clear that she’s passionate about the work she does in Nepal. I also find that in the face of an exceptional family emergency, her return to care for her husband and her family was reasonable. I do not make a negative inference against the claimant for her failure to claim in Canada earlier or for her return to Nepal in light of the circumstances of this case.

[10] I find the claimant has established her subjective fear and risk profile on a balance of probabilities. I find the claimant is a political activist in Nepal and a supporter of the Women’s Association and vis-a-vie the Congress Party. I find she has a higher profile, given she has been publicly acknowledged for her political work. I find she has been targeted by Maoist persons threatened, assaulted and extorted. Further, I find these agents of persecution do continue to pursue and threaten the claimant in Nepal and that she fears persecution by these groups should she return.

Objective Basis

[11] The country condition evidence is outlined in the National Documentation Package (NDP) which is in Exhibit 3 and supports the claimant’s allegations regarding the treatment of political members of the Nepal Congress such as the claimant herself. In Item 4.7 of the NDP, sources report that factions of Maoists described as a dissenting splinter group from the ruling Maoist party engaged in a pattern of kidnapping and extortion against various targets. Item 4.6 of the NDP likewise details instances of violence and extortion committed by a number of groups in Nepal, including the youth communist league which the claimant spoke about today and the Nepal Communist Party of Maoist individuals. It goes on to note that political pressure and corruption means that law enforcement is largely not able to serve the public or protect them. These attacks were often against supporters of the Nepali Congress Party like the claimant herself.

[12] According to Item 4.4 of the NDP, political incidents were the primary driver of violent incidents in Nepal and also made up the majority of non-violent incidents. This report notes activities by Maoist splinter groups to attempt to disrupt the election processes. Moreover, as of 2019, the situation in Nepal is growing worse with an increase of both violent and non-violence incidents.

[13] According to an RIR at Item 4.7 of the NDP, a hard line communist faction of Maoists have been involved in kidnapping and extortion. The faction of Biplav Maoists make coercive demands for donation. The extent is under-reported as victims do not seek — often do not seek the assistance of police out of fear of a violent backlash from the Maoist groups. Party cadres have made threatening visits, phone calls and sent letters and texts seeking funds. Biplav Maoists have also captured land from civilians and companies.

[14] Given these country conditions and how they do corroborate material elements of the claimant’s allegations herself, I find the claimant’s fear of persecution because of her political opinion has an objective basis and is well-founded and forward facing.

State Protection

[15] There is a presumption that countries can protect their citizens unless there’s clear and convincing evidence otherwise. In this case, based on the aforementioned objective evidence, I find that there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection. As another example, Item 1.6 of the NDP states “police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training and equipment”. NDP Item 1.6 also states that many Nepalese have only limited access to justice and that courts are vulnerable to political pressure, bribery and intimidation.

[16] In light of the circumstances and based on the objective evidence, I find that the adequate state protection would not be forthcoming to the claimant in Nepal. I note that the claimant did seek state protection on a number of occasions and the country condition evidence that I’ve already cited applied in her case as well. I find the presumption of state protection therefore has been rebutted.

Internal Flight Alternative

[17] I have also considered whether there is a viable Internal Flight Alternative available to this claimant. Based on the evidence in this file including a lack of reasonable state protection persisting throughout the country and the Maoist influence that continues also throughout the country, I find the claimant faces a serious possibility of persecution throughout Nepal. Further, I find the agents of persecution have demonstrated an ongoing motivation to continue to pursue this claimant in Nepal. I find, therefore, that she does not have a viable IFA in that country.

CONCLUSION

[18] Based on the foregoing analysis, I find the claimant is a Convention refugee and I accept her claim.

——— REASONS CONCLUDED ———

All Countries Lebanon

2022 RLLR 17

Citation: 2022 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: August 23, 2022
Panel: Doug Armstrong
Counsel for the Claimant(s): Ronald Yacoub
Country: Lebanon
RPD Number: VC1-06944
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision in the claim of XXXX XXXX, who claims to be a citizen of Lebanon, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2] In rendering my reasons, I have considered the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.

Allegations

[3] The specifics of the claim were set out in the narrative of the claimant’s Basis of Claim (BOC) Form[2] and in her oral testimony. In summary, in 2004 she married a man named XXXX XXXX (XXXX) and had two daughters with him. However, through means such as recording his conversations, the claimant learned by 2013 that XXXX is gay. XXXX was threatened by this and told the claimant to move out, and he said that if the claimant told anyone about his sexuality, he would kill her.

[4] XXXX divorced the claimant; the divorce was finalized in XXXX 2014, with XXXX having full custody of their children. The claimant continued receiving phone calls from XXXX threatening that he would kill her if she tried to come near their daughters or if she told anyone about his sexuality. In XXXX 2014, the claimant met a man named XXXX XXXX (XXXX) who lived in the United States of America (USA) and was visiting his father in Lebanon. They began dating.

[5] In XXXX 2015, the claimant went to the USA, and soon her mother, brothers and sister also moved there. The claimant reconciled with XXXX, and in XXXX 2015 they were married. XXXX applied to sponsor the claimant as a US permanent resident, but this application was denied twice, in 2018 and in XXXX 2019. The second denial letter said that XXXX had gone on vacation with another woman. This notice ended their marriage, and the claimant returned to her parents’ house in Michigan.

[6] The claimant realized that she would be forced to return to Lebanon, and she was barred from making a refugee claim in the USA. She decided to come to Canada, and on XXXX XXXX, 2019, she entered Canada irregularly by boat. She alleges that she cannot return to Lebanon, as she fears violence and persecution by XXXX and his contacts, and because she would be at risk as a divorced woman in Lebanon.

Decision

[7] I find that the claimant is a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should she return to Lebanon, on account of being a member of a particular social group as a woman fearing gender-based persecution.

ANALYSIS

Identity

[8] I find that the claimant’s identity as a national of Lebanon is established by the documents provided, particularly a certified true copy of her passport in Exhibit 1.

[9] I note that the claimant lived in the USA from XXXX 2015 to XXXX 2019. However, this does not constitute a country of reference, considering the evidence that she only had temporary status in that country.

Credibility

[10] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.[3] However this presumption does not apply to inferences or speculation.

[11] I find the claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner, and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me.

[12] I note that the claimant did not seek asylum in the USA when she was there from XXXX 2015 to XXXX 2019. However, the claimant’s evidence is that she married XXXX, an American citizen, in XXXX 2015, and he sponsored her for permanent residence as his spouse. By the time U.S. authorities denied their application for the second time, in XXXX 2019, the claimant was barred from making an asylum claim because more than one year had elapsed following her entry to the USA. This is consistent with my understanding of USA immigration law, so this explanation seems reasonable in the claimant’s alleged circumstances, and therefore does not raise significant concerns with respect to subjective fear or credibility. I find it was reasonable for the claimant not to apply for asylum during this time, because she married a U.S. citizen and she had status while waiting for a decision about her application for permanent residence.

[13] The claimant disclosed documents in support of her claim. These include, in Exhibit 5, a translated divorce certificate at pages 5-6, a translated letter from her sister XXXX at pages 48-51, a translated letter from XXXX XXXX XXXX at pages 52-54, a letter from U.S. Citizenship and Immigration Services to XXXX at pages 8-15, and copies of counselling and psychotherapy records. In Exhibit 6, the claimant disclosed a photograph of herself with a translation of the handwritten caption. The divorce certificate corroborates the claimant’s relationship with XXXX, and the two letters from XXXX and XXXX both corroborate the threats from XXXX to which the claimant was subjected. The U.S. immigration letter corroborates the claimant’s activities in the USA and the reasons she left for Canada. The counselling and psychotherapy records also corroborate the claimant’s account of her treatment by XXXX and her fear of returning to Lebanon, and the photograph corroborates the claimant’s description of a threatening note that was left on her door in XXXX 2015. After reviewing the documents, I have no reasons to doubt their authenticity.

[14] Considering the evidence, I find on a balance of probabilities that the claimant endured a history of mistreatment from XXXX including physical violence, and that he divorced the claimant while keeping custody of their children. I find that the claimant believes XXXXto be gay or bisexual, and that XXXXhas threatened the claimant multiple times, including threats to kill her, if she discusses his sexuality or if she tries to see their daughters.

Objective basis

[15] The objective evidence provides support for the allegation that XXXXfears being perceived as a gay man in Lebanon.

[16] Item 6.4 in the National Documentation Package (NDP) notes how the LGBTQ community is ostracised in Lebanon. While there may be growing acceptance in Beirut, the report also describes police abuses against LGBTQ individuals, raids on LGBTQ establishments, and it states that LGBTQ individuals are unable to live openly in Beirut without facing severe harassment and discrimination. “Homosexuality in Lebanon is illegal, and social stigma of same-sex relationships persists, especially in conservative areas.”[4]

[17] Item 6.5 in the NDP reiterates much of this and notes that LGBTQ individuals are highly vulnerable to both state and social violence because of their sexual orientation. This report also talks about the risk of individuals who are part of the LGBTQ community to face family violence, which may include death threats, physical abuse, or being shunned.

[18] I find, based on the objective evidence, that the claimant has a well-founded fear of persecution based on her status as a woman in Lebanon. Gender-based violence in Lebanon is tolerated, ignored, and perpetuated in Lebanese society. The claimant’s BOC and testimony referred to multiple incidents of verbal and physical abuse by XXXX, who also controlled other aspects of her life such as not wanting her to finish high school. XXXXthreats continued after they divorced, even when she changed her phone number, and the claimant fears that he will one day follow through with his death threats.

[19] This past abuse demonstrates a prospect of continued violence that can be characterized as serious, sustained, and systematic human rights violations amounting to persecution. As the claimant’s fear of persecution is based on her membership in a particular social group, her allegations form a nexus to the Convention. The objective evidence corroborates the fact that gender-based violence in Lebanon is a serious problem.

[20] A Response to Information Request (RIR) cites an estimate that one woman a month is killed by a family member in Lebanon, usually her husband.[5] It goes on to state that gender-based violence is serious and widespread, and women are also victims of discrimination both in law and practice. Furthermore, women cannot depend on family to prevent violence as they rarely receive their family’s support. Finally, the RIR finds that customs and beliefs have ‘normalized’ violence against women in Lebanon.

[21] The RIR indicates that Lebanese women are victims of discrimination in both law and practice. It describes how there are no official statistics on domestic violence in Lebanon and cites a UN report stating that “gender-based violence is prevalent in Lebanon in different forms, including domestic/marital physical, sexual and psychological violence.” The RIR quotes another source who states that “there was a broad consensus that domestic violence, including spousal abuse, was a serious and widespread problem in the country.”[6]

[22] The Organization for Economic Co-operation and Development (OECD) reports that until recently, discussion of gender-based violence was subject to strong taboos, considered to be private and a matter of concern only for religious courts.[7] It indicates that there are no official national statistics on the prevalence of gender-based violence and notes that the issue of violence against women is largely ignored by local and religious authorities. The report goes on to describe how “honour crimes” are difficult to measure, but 66 women were identified as being murdered in an “honour crime” over an 8-year period.[8]

[23] The U.S. Department of State (DOS) reports that the law criminalizes domestic violence, calls for provision of shelters, gives women the ability to file a restraining order against the abuser, and assigns special units within the ISF to receive domestic violence complaints. However, although the law provides for a maximum sentence of 10 years in prison for battery, religious courts could cite personal status law to require a battered wife to return to a home shared with her abuser. Some police, especially in rural areas, treated domestic violence as a social, rather than criminal, matter.[9]

[24] The Australia Department of Foreign Affairs and Trade (DFAT) states that according to international observers, despite many advantages and acquired rights, women in Lebanon continue to face discrimination at numerous levels.[10] It reports that a Domestic Violence Law was passed in 2014, but a March 2018 Human Rights Watch (HRW) report noted that the Domestic Violence Law did not require religious courts to adhere to civil court rulings relating to domestic violence, leaving women trapped in abusive marriages; and that some religious courts issue obedience and cohabitation rulings against women, requiring them to return to the marital home.

[25] Documents disclosed by the claimant also support the risk to the claimant as a woman in Lebanon. One February 2021 article at pages 7-9 of Exhibit 5 notes that, according to the Internal Security Forces (ISF), “cases of domestic violence against women skyrocketed by 96% during Lebanon’s strictest lockdown.” A December 2021 article at pages 10-15 of Exhibit 5 reported that figures shared by the ISF said that domestic violence reports in Lebanese homes doubled in the previous year. The article quoted one lawyer who said, “We have never witnessed this much violence against women.”

[26] The evidence reveals that domestic violence in Lebanon is widespread. Based on the past violence suffered by the claimant, the threats to harm her further and the treatment of women in Lebanon generally, I find that there is a serious possibility of persecution if she returns to her country.

State Protection

[27] I find that there is no operationally effective state protection for the claimant in Lebanon.

[28] While the U.S. DOS report for Lebanon at item 2.1, indicates that Lebanon criminalizes domestic violence, the law provides for shelters and protections, and Lebanon is making progress in improving the police and judicial management of domestic cases, the report also states that “NGOs and activists criticized the domestic violence law, claiming that it does not sufficiently protect victims or punish abusers, who they alleged often received disproportionately light sentences.”[11]

[29] The RIR at item 5.2 quotes a report that states that “in most cases, police ignored complaints submitted by battered or abused women.” Another source stated that “even tough

women could theoretically go to a police station in order to submit a complaint against anyone who subjects them to violence, it rarely happens because women know that they do not have legal protection against domestic violence” and that source goes on to indicate that police often do not take complaints of these women seriously.[12] This is consistent with the claimant’s testimony that following one incident when XXXXhit and threatened her in about 2014, she went to the police to make a written complaint, but they made excuses and did not help.

[30] The OECD report at item 5.3 indicates that while some shelters exist that are run by NGOs, overall capacity to house victims is limited. The report also indicates concerns with the lengthy process required for a woman to obtain a protection order in the country.[13]

[31] The country condition documents indicate that the government in Lebanon has taken steps with respect to gender-based violence. I considered that state protection does not mean that the state must provide perfect protection or always be successful in providing protection, but that it must be adequate. However, the country conditions documents, as a whole, indicate that those steps have not translated to operationally effective state protection.

[32] Given the country conditions, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence establishing that there is no operationally effective state protection available to her in Lebanon.

Internal Flight Alternative

[33] I also examined whether a viable internal flight alternative (IFA) exists for the claimant. Potential IFA locations of Tripoli and Tyre were identified at the start of the hearing. The test is comprised of two prongs, both of which must be satisfied before an internal flight alternative can be found. The first is that the claimant is not at risk of persecution, torture, or cruel and unusual treatment or punishment in the internal flight location; the second is that it is not objectively unreasonable for the claimant to relocate there.

[34] The second prong of the IFA test may be stated as follows: would it be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking refugee status abroad? The courts have set a very high threshold for what makes an IFA unreasonable in all the circumstances. (Thirunavukkarasu [1994] 1 F.C. 589 (C.A.))

[35] On the evidence before me, I find that it would be objectively unreasonable for the claimant, in all the circumstances, including those specific to her, to relocate to another place in Lebanon.

[36] In North America the claimant worked XXXX XXXX XXXX XXXX XXXX XXXX XXXX, but as of the hearing date, she is a 39-year-old high school graduate who has never held a job in Lebanon. The only relative she has remaining in Lebanon is a sister, who is trying to leave the country. The claimant’s ability to support herself in another city is therefore quite limited, particularly given income inequality and other disadvantages women experience.

[37] The claimant testified that Lebanon is a small country and anywhere she went, XXXXwould find out. She said that XXXXhas acquaintances and contacts at the airport and in the government, and her counsel submits that eventually someone will recognize the claimant and tell XXXXof her whereabouts.

[38] The 2021 World Factbook for Lebanon found at item 1.5 indicates that Lebanon is a small country, approximately 10K square KMs, which is described as one-third the size of the state of Maryland, and roughly 5.5M people with the majority living in the capital Beirut.[14]

[39] The DFAT report referred to earlier considers the ability of single women such as the claimant to relocate:

DFAT assesses that the ease with which an individual is able to relocate internally depends to a large degree on their individual circumstances, including whether they have family or community connections in the intended area of relocation, and their financial situation. Internal relocation is generally easier for men and family groups. Single women, particularly those fleeing family violence, are less likely to have access to sufficient support services and are likely to face societal discrimination in the form of harassment, particularly in rural and more conservative areas.[15]

[40] Given the size of Lebanon, the threats against the claimant, the fact that the claimant and her ex-husband are still in contact with their children, the prevalence of violence against women, and the lack of state protection noted previously, I find that the claimant would face a serious possibility of persecution throughout Lebanon. Accordingly, I find that there is no internal flight alternative available to the claimant in Lebanon.

Conclusion

[41] Having considered all the evidence, I conclude that the claimant is a refugee, pursuant to section 96 of the IRPA. Accordingly, I accept her claim.

(signed) Douglas Armstrong

August 23, 2022

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Exhibit 2.

[3] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)

[4] National Documentation Package, Lebanon, 29 September 2021, tab 1.13: BTI 2020 Country Report — Lebanon. Bertelsmann Stiftung. 2020.

[5] National Documentation Package, Lebanon, 29 September 2021, tab 5.2: Family violence, including legislation, state protection and services available to victims (2011-November 2013). Immigration and Refugee Board of Canada. 22 November 2013. LBN104656.FE.

[6] Ibid.

[7] National Documentation Package, Lebanon, 29 September 2021, tab 5.3: Lebanon. Social Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development. 7 December 2018.

[8] Ibid.

[9] National Documentation Package, Lebanon, 29 September 2021, tab 2.1: Lebanon. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

[10] National Documentation Package, Lebanon, 29 September 2021, tab 1.3: DFAT Country Information Report: Lebanon. Australia. Department of Foreign Affairs and Trade. 19 March 2019.

[11] Supra, footnote 9.

[12] Supra, footnote 5.

[13] Supra, footnote 7.

[14] National Documentation Package, Lebanon, 29 September 2021, tab 1.5: Lebanon. The World Factbook. United States. Central Intelligence Agency. 14 September 2021.

[15] Supra, footnote 10.

All Countries Morocco

2022 RLLR 16

Citation: 2022 RLLR 16
Tribunal: Refugee Protection Division
Date of Decision: May 11, 2022
Panel: Katarina Bogojevic
Counsel for the Claimant(s): Mo Vayeghan
Country: Morocco
RPD Number: VC1-06901
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX as a citizen of Morocco who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”).[1]

ALLEGATIONS

[2] The claimant’s allegations are contained in his Basis of Claim (“BOC”) form.[2] The claimant is a citizen of Morocco who fears harm at the hands of authorities, society and his family because of his sexual orientation and because he has refused to be a practicing Muslim. He also fears gang members who have threatened to kill him because his brother informed on them while he was in prison.

DETERMINATION

[3] I find that the claimant is a Convention refugee pursuant to section 96 of the Act.

[4] In making this determination, I have reviewed and applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

ANALYSIS

Identity

[5] I find that the claimant’s identity as a national of Morocco is established on a balance of probabilities by his sworn testimony and the copy of his Moroccan passport and identification in evidence.[3]

Country of Reference

[6] There was a question at the start of the hearing concerning whether the claimant might have a right to Algerian citizenship. The claimant was born in Morocco, but his parents were both born in Algeria.

[7] The Algerian Nationality Law Article 6 (1) states that an individual born to an Algerian father is considered a national by descent.[4] As such, I would need to know the claimant’s father’s nationality to confirm whether the claimant has a right to Algerian citizenship.

[8] I questioned the claimant about his citizenship and that of his parents. The claimant indicated they are all Moroccan. He stated that his parents were born in Algeria but are Moroccan and during Algerian independence they were displaced and sent back to Morocco. He indicated that he does not know what their status was in Algeria or why they were there. He has only met one of his grandparents and she is Moroccan.

[9] During his counsel’s questioning, the claimant confirmed that his parents are not Algerian citizens. When I asked him how he knew this, he said that he had seen on his mother’s ID card when he was younger that she was born in Algeria and at that time he had asked her whether she had nationality there or a passport or any papers and she said no. He said he asked his father the same thing.

[10] The claimant has not provided any affidavits or information from his parents concerning their Algerian citizenship. However, given that his allegations identify his father as an agent of harm, I find this to be reasonable. I asked the claimant whether he had tried to go to the Algerian consulate to ask about his status and he said that he had not. The claimant was sent a copy of the Algerian Nationality Law prior to the hearing; thus he would have been aware the question of his Algerian citizenship was in issue. However, I acknowledge that this was only sent three days prior to the hearing of this matter and so I find it reasonable that the claimant did not take these steps prior to the hearing.

[11] Having reviewed all the evidence before me, I find on a balance of probabilities that Algeria is not a country of reference. While the claimant does not know much about his parents’ status in Algeria, he did testify that they told him when he was younger that they did not have any nationality there. He also testified that his parents were displaced by the Algerian government back to Morocco, suggesting that they did not have any form of permanent status in Algeria.

Nexus

[12] 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.

[13] The claimant has alleged three different risks in this case. However, I have found the claimant’s sexual orientation to be determinative of his claim. As such, for the purposes of this decision I have focused solely on the claimant’s allegation concerning his sexual orientation. This allegation is connected to the convention on the basis of membership in a particular social group, namely sexual minorities. As such, I have assessed his claim under section 96.

Credibility

[14] When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. A finding that the claimant lacks credibility may be based on the failure of the claimant’s account to stand up to scrutiny, or unexplained inconsistencies, omissions or contradictions.

[15] In this case, the claimant provided a very sparse BOC narrative in which he identified that his father wanted to harm him because he was no longer a practicing Muslim and was gay, and that he was threatened by a gang member due to his brother’s involvement in the drug trade. In his narrative, he referenced back to a submission letter written by his former counsel. The letter provided by counsel was in the form of submissions and not written in the claimant’s words, as such, it could not be adopted by the claimant as his BOC narrative or evidence.

[16] Prior to the hearing, the claimant’s counsel was sent a letter identifying that former counsel’s letter would be considered advanced submissions and outlining the requirements of a BOC. The claimant did not submit an updated BOC statement prior to the hearing, and he did not indicate that he needed to make any amendments to the BOC at the start of the hearing.

[17] Despite this, I have found the claimant to be a credible witness concerning his sexual orientation. Both myself and his counsel questioned the claimant on his sexual orientation and the claimant’s testimony remained consistent throughout with no major omissions or contradictions. I have also relied on Guideline 9 in making my credibility findings.

[18] The claimant testified credibly about having a difficult childhood filled with mocking and sarcasm because of the way he dressed and spoke. This is supported by an affidavit from the claimant’s uncle (his mother’s brother).[5] This bullying increased when he was around 15 or 16, after which time the claimant was involved in weekly fights. He tried to change the things about him that made him look gay and avoided talking about his sexual needs. The claimant had only two friends in school, and they were gay. One left school and the claimant lost communication with him and the other one had to change schools because of the bullying, fights, and mockery.

[19] The claimant testified that he realized he was gay when he was around 14 or 15 years old. He had had feelings prior to this but was not sure. It was at this time that he noticed that he was attracted to another boy at his school and that he did not have the same feelings towards women that his friends did. The claimant was genuine when he described that the first impression that he had when he realized that he was gay was that there was something wrong inside of him. Later, when he came to Canada and saw how the LGBTQ community lived freely and happily, he realized that the problem was not with him but with his country and community.

[20] The claimant also credibly testified about his same-sex relationships. The first occurring when he was about 15 years old. The claimant and his boyfriend at the time had a difficult time continuing their relationship and keeping it secret. They decided to separate after a short time because of the pressure on their relationship and the concern that they would be found out. The claimant was nervous to start any other relationships in Morocco because he felt that they would end the same way as his first.

[21] The claimant had one relationship in Canada. He met this individual in the gym at the beginning of the pandemic. The relationship did not last because they were not able to meet very often, however they continue to be friends. The claimant credibility testified about how this individual did not know that he was gay when they first met and that he felt that their relationship was special because it helped him to realize his sexual orientation. I asked the claimant whether he had asked this individual to write an affidavit in support of his claim and he said he did not. He offered to obtain this affidavit post-hearing; however, I find that any weight that I could place on such evidence would be limited given it is being provided after the hearing has already been conducted.

[22] Initially the claimant did have some difficulties answering his counsel’s questions related to his sexual activities. He first stated that had not had sexual relationships with men, and then later said that he had. Then he stated that he was only able to meet with his boyfriend in Morocco during school hours and not outside of school. But he later said that they had sex at his boyfriend’s house but were not able to go out in public. I acknowledge these inconsistencies; however, I rely on Guideline 9 section 3.3:

Many SOGIESC individuals conceal their SOGIESC in their country of reference out of mistrust or fear of repercussion by state and non-stat actors, or due to previous experiences of stigmatization and violence. These circumstances may manifest themselves as an individual being reluctant to discuss or having difficulty discussing their SOGIESC with a member based on fear or general mistrust of authority figures, particularly where intolerance or punishment of SOGIESC individuals are sanctioned by state officials in an individual’s country of reference.

[23] In this case I found counsel’s questioning about the claimant’s sexual activity to be very direct and it appeared to make the claimant uncomfortable. The claimant comes from a background of having to hide his sexual orientation for fear of reprisal and physical harm. This is the first time that he was speaking openly to authority figures about his sexual orientation in a formal setting. The questions that he was being asked were very intimate. As such, I find on a balance of probabilities that the claimant’s difficulty in answering questions concerning his sexual activity can be attributed to the reasoning identified above and does not negatively impact his credibility concerning his sexual orientation. Further, I find that the claimant’s sexual activity is not determinative of his sexual orientation and that the claimant was credible concerning other elements of his relationships as outlined above.

[24] I have also considered the claimant’s documentary evidence which is corroborative of his claim. Particularly the letters from his brother-in-law, sister, and friends and neighbours here in Canada which all identify the claimant’s sexual orientation.[6] I acknowledge that the claimant’s uncle’s letter does not explicitly state that the claimant is gay. I find that this is reasonable given the fact that the claimant hid his sexual orientation in Morocco. I have no reason to doubt the veracity of these support letters.

[25] The claimant submitted two letters from a deputy Imam at his mosque.[7] In one of these letters the deputy Imam describes that the claimant told him that he was “almost gay” and says that he was convinced at that time that he was gay. I place no weight on these letters as I find on a balance of probabilities that they are fraudulent. When questioned about them the claimant first said that he got them personally from the deputy Imam. When it was pointed out to him that the letters were dated after he was in Canada, he said that he must have been mistaken and that his mom obtained these letters. I find it unreasonable that the claimant would have forgotten whether he was the one that personally obtained these letters from the deputy Imam. When I asked why there were two, he said that the deputy Imam gave them two letters to choose from and that his sister accidentally sent both in as part of his evidence. The claimant was not able to explain why the deputy Imam provided two letters. I find that this puts these letters further into question as the claimant had testified that he did not have a strong relationship with the deputy Imam.

[26] For the foregoing reasons, I find that the letters are fraudulent and place no weight in them. However, while the claimant may have submitted these fraudulent letters to bolster his claim, I do not find that this alone is sufficient to rebut the presumption of credibility with regards to the claimant’s sexual orientation. While these letters briefly mention the claimant’s presumed sexual orientation, they mainly focus on the claimant’s allegation regarding not being a practicing Muslim. I therefore find that the fraudulent nature of these letters speaks more to the claimant’s credibility regarding his religion rather than his sexual orientation. There are several other supporting letters provided by the claimant from family, friends and neighbours in Canada that explicitly identify his sexual orientation which I find to be genuine. These letters are varied, each has a unique voice and uses different language, they are all signed and provide the contact information of the letter writer. Pursuant to Guideline 9 part 3, I find it reasonable that the claimant would be able to obtain more reliable information concerning his sexual orientation from individuals in Canada, given that he was concealing his sexual orientation in Morocco. Further the claimant’s testimony regarding his sexual orientation was authentic and consistent throughout the hearing. As such, I find the claimant to be credible regarding his sexual orientation.

Subjective Fear

[27] The claimant went to visit his sister in Canada in 2016. It was at that time when he first realized that he could live freely as a gay man in Canada. However, he was still in school, so he returned to Morocco, but thought about going back to Canada once he finished school. The claimant fled Morocco at the time that he did because things came to a head with his father. The claimant had been getting in regular fights at school and the principle contacted his father and told him about the rumours that the claimant was gay. It was at this time that the claimant’s father became convinced that the claimant was gay, and the claimant revealed his sexual orientation to his father. This resulted in a serious argument during which his father tried to beat him. He asked his sister for help, and she bought tickets for him and his mother (who was supportive of him) to come to Canada. The claimant did not try to leave earlier because he had not revealed his sexual orientation prior to this and was still trying to hide it to fit in with his community. I find the claimant’s explanation regarding why he did not leave Morocco sooner to be reasonable and that it does not negatively impact his subjective fear. The claimant was young and trying to hide his sexual orientation.

[28] When he came to Canada the claimant was not aware of the option to ask for asylum until he consulted with counsel sometime in 2019. The claimant’s visitor status expired on XXXX XXXX, 2020. The claimant applied for refugee protection on XXXX XXXX, 2021. The claimant testified that he had the intention of staying in Canada permanently and that was why he was trying to extend his visitor visa in order to prepare for asylum. While the claimant did not specifically mention it in his answer, I take notice of the fact that the period between when the claimant’s visitor status expired and when he applied for refugee protection as in the middle of the pandemic when a number of services were unavailable. Given this, I find the claimant’s delay in seeking protection to be reasonable.

[29] Ultimately, while I acknowledge issues with the claimant’s evidence outlined above none of these issues rebut the presumption of credibility with regards to the claimant’s sexual orientation and are insufficient to reject his assertions about his sexuality. Given my finding concerning the claimant’s credible testimony and credible supporting letters from friends and family in Canada, I find on a balance of probabilities that the claimant is a gay man.

Well-Founded Fear of Persecution and Risk of Harm

[30] To be considered a Convention Refugee, the claimant must demonstrate that he has a well-founded fear of persecution which includes both subjective fear and an objective basis for that fear. Based on the claimant’s BOC, testimony, documentary evidence and the National Documentation Packages (“NDP”) for Morocco[8], I find that the claimant does have a well-founded fear of persecution in Morocco.

[31] Morocco criminalizes same-sex sexual activity with a maximum sentence of three years in prison for violations. In 2019, 122 individuals were prosecuted under this law. Societally there are reports of overt discrimination based on sexual orientation or gender identity in employment, housing and health care.[9] The Danish Immigration services cites that “parts of the population in Morocco are very hostile towards LGBTQ persons including public demonstrations, violent intrusions into private homes and public denunciations.” Gay men, especially those who are perceived as effeminate are most likely to be victims of physical assaults. LGBTQ people report being cautious about how they walk, talk and behave in public places in order to avoid homophobic violence.[10] This is corroborative of the claimant’s experiences as a gay man hiding his sexuality in Morocco.

[32] Guideline 9 states, an individual’s profile may be sufficient to demonstrate a well-founded fear of persecution in their country of reference given conditions that may include discriminatory laws, or at atmosphere of intolerance and repression. It also states that being compelled to conceal one’s sexual orientation constitutes a serious interference with fundamental human rights that may amount to persecution and a claimant cannot be expected to conceal their sexuality to avoid persecution.

[33] I find on a balance of probabilities that LGBTQ people face a significant risk of violence, arrest and conviction in Morocco due to their sexuality and that these conditions would compel the claimant to conceal his sexual orientation in an attempt to protect his physical safety. For these reasons, I find the claimant faces a serious possibility of persecution for reason of his sexual orientation in Morocco.

State Protection and Internal Flight Alternative

[34] There is a presumption that countries can protect their citizens. The claimant bears the burden of rebutting that presumption.

[35] In this case, the state is one of the agents of persecution and they have effective control over all their territory. The Danish Immigration service has identified that it is almost impossible for an LGBTQ person fearing for his or her safety to obtain efficient protection by police in Morocco and that they would face arrest or stereotypical questions and prejudice.[11] I therefore find that the presumption of state protection is rebutted and there is no viable internal flight alternative for the claimant.

CONCLUSION

[36] For the forgoing reasons, I find that the claimant is a Convention refugee pursuant to s. 96 of the Act. The claim is therefore accepted.

(signed) Katarina Bogojevic

May 11, 2022

[1] Immigration and Refugee Protection Act,S.C. 2001, c. 27.

[2] Exhibit 2.

[3] Exhibit 1.

[4] Exhibit 4.

[5] Exhibit 7.

[6] Exhibits 7 to 9.

[7] Exhibit 7.

[8] Exhibit 3.

[9] National Documentation Package, Morocco, 31 May 2021, tab 2.1: Morocco. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

[10] National Documentation Package, Morocco, 31 May 2021, tab 6.2: Morocco. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019; and National Documentation Package, Morocco, 31 May 2021, tab 6.3: Morocco: Situation of LGBT Persons, Version 2.0. Denmark. Danish Immigration Service. September 2019.

[11]National Documentation Package, Morocco, 31 May 2021, tab 6.3: Morocco: Situation of LGBT Persons, Version 2.0. Denmark. Danish Immigration Service. September 2019.

All Countries Ghana

2022 RLLR 15

Citation: 2022 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: January 13, 2022
Panel: Osehise L. Odigie
Counsel for the Claimant(s): Alastair Clarke
Country: Ghana
RPD Number: VC1-06738
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
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 (the ‘claimant’) as a citizen of Ghana who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)[1].

ALLEGATIONS

[2] The specifics of the claim are stated in the claimant Basis of Claim (BOC) forms[2] and narrative in evidence.[3] The claimant alleges that he will be persecuted if he returns to Ghana because his stepmothers and half siblings have refused to share the inheritance with him and have accused him of witchcraft. The claimant was born in XXXX, Ashanti region of Ghana and grew up after his mother’s death with his father. He attended elementary school and thereafter took up farming with his father. The claimant’s mother was the 3rd wife to his father and, she died 3 months after Claimant’s birth. In XXXX 2015, claimants father died, and this led to a property dispute.

[3] The claimant left Ghana in XXXX 2015 after series of incidents instigated by his half siblings. The crop in his farm was cut down by his half siblings and he was threatened that he will be killed by his siblings. The claimant traveled from Takoradi ports with the help of his friend’s father to Panama, he then traveled from Panama to the United States of America (US). The claimant arrived in the U.S. in XXXX of 2016 through California from Mexico and was detained till XXXX 2016. The claimant made an unsuccessful asylum claim in the U.S. The claimant arrived in Canada in XXXX of 2019.

DETERMINATION

[4] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act.

ANALYSIS

Identity

[5] Identity is a determinative issue, in particular who the claimant is and what the country of nationality is. The claimant testified about his place, his religion and language. The claimant submitted copies documents as evidence of his identity which includes

Copy of his birth certificate obtained in March 2017,

Copy of marriage certificate for marriage held in Winnipeg, Manitoba on April 18, 2021,

Copy of child’s birth certificate dated July 12, 2021

showing claimant’s identity.[4]

[6] The panel notes that the claimant had stated at the port of entry that his passport was missing in the US. Asked how he originally obtained the lost passport, the claimant testified that he had sent for his birth certificate through his friend’s father in Ghana. With the birth certificate and filled application form, he applied for it in New York. He stated that his lawyer requested for the passport to enable him to apply for work permit. The panel finds that that this is reasonable and accepts the above listed document in evidence. Objective evidence indicates that certified copy of entry into registry of birth can be obtained by being computer generated since 2009 on Ghana’s Birth and Death Registry (BDR).[5] The copy of the claimant’s birth certificate attached as evidence is consistent with the Response to Information Request (RIR) sample. Objective documentation further states that an individual can apply for a passport in Ghana using an application form, birth certificate or any other proof of citizenship, 4 recent sized passports as well as the processing fee and two guarantors while the biometric passport can be obtained with the submission of an application form, birth certificate, old passport where available and bank receipt for processing fee. Ghanaians abroad can obtain a passport by providing an application form, passport sized photographs and an old passport where available.[6]

[7] Based on the totality of the evidence, the panel finds that the claimant has established his identity as a Ghana national with his Ghana certified copy of registration of birth, marriage certificate as well as his oral testimony.[7]

Nexus

[8] For a claimant to be a Convention refugee the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. The claimant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.

[9] The claimant has made two allegations of fear in Ghana. First, he fears being targeted by his half siblings and stepmothers due to a property dispute after his father’s death. The panel finds that this allegation of dispute with his half siblings and stepmothers is a personal vendetta and does not have a nexus to the Convention, as such, has assessed this allegation based on section 97(1) of the Act. Secondly, the claimant alleges that he will be targeted in Ghana due to his perceived practice of witchcraft. The panel finds that there is a nexus between his allegation and the refugee Convention ground of membership in a particular social group. As such, has assessed this claim under both sections 96 and 97(1) of the Act.

Credibility

[10] When a claimant swears to the truth of allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[8] The claimant testified in straightforward, forthright, detailed, and candid manner. There were no material inconsistencies, omissions, or contradictions between any of the claimant’s testimony and the other evidence in this case. In summary, the claimant’s testimony was consistent with the other evidence on central aspects of the claim.

[11] The claimant testified that he was born in a polygamous home with his mother being the last wife of three wives. He stated that his mother died when he was three months old and, his father raised him while the other wives and children did not like him. He attended elementary school and upon completion joined his father in farming, after some years, his father gave him a portion of the land to farm. After his father’s death in 2015, tension escalated as his siblings did not wish to share the properties according to the traditional and religious practice and proceeded to destroy his farm, threaten him and spread the rumours that he was a witch who had taken after his late mother’s witchcraft. The claimant submitted a statutory declaration by an XXXX chief which corroborates his allegations that he was being targeted.

[12] The claimant was able to speak clearly about his fears of returning to Ghana due to being accused of witchcraft by his half siblings, stepmothers and the community and how witches are treated in Ghana. The claimant was also able to answer the specific questions asked without embellishment. The panel finds that the claimant is a credible witness.

[13] The claimant provided document to support his claim supporting the allegations of treatment of witches in Ghana.[9] The panel has no reason to doubt the genuineness of the documents provided by the claimant and since they relate to the claimant’s allegations of being a victim of violence, threats and being a witch, the panel gives them great weight to support the claimant’s allegations and overall claim.

Claimant’s travel history and claim in the United States

[14] The claimant entered Canada in XXXX 2019. The claimant testified that he travelled from Takoradi port through his friend’s father’s help to Panama in XXXX 2015 through a ship, after which he went through central America until he crossed the border from Mexico into the United States in XXXX 2016. He was detained on arrival till XXXX 2016, after which he filed an asylum claim which was denied in XXXX 2018. This brings into question the issue of eligibility under section 101(1)(c.1) of the Act. A notice was sent out to the Minister abut a possible ineligibility on the claim, the Minister responded that the claimant is not ineligible due to his claim in the United States, and the Minister declined to intervene.[10]

[15] Based on the overall credibility of the claimant’s testimony, the presumption of truthfulness, and the corroborative evidence, the panel finds, on a balance of probabilities that the claimant was a farmer, has half siblings and stepmothers, that there was a dispute regarding properties arising from the death of his father. The panel further finds that the claimant fled XXXX to Takoradi and thereafter left Ghana using a ship and travelled through central America to Mexico and crossed to the United States where he filed an asylum claim which was denied and thereafter to Canada where he filed a claim.

Well-Founded Fear of Persecution and Risk of Harm

[16] In order to be found a Convention refugee under section 96 of the IRPA, a claimant must show that she or he has a well-founded fear of persecution by reason of race, religion, nationality, political opinion or membership in a particular social group. Based on the information available before the panel, the panel finds that the claimant is a member of the particular social group of people who are perceived to be witches.

Land dispute claim

[17] The claimant alleges that his problems escalated after his father’s death in 2015. According to the claimant, he is the youngest child and only child of his mother who died after 3 months of his birth. He has 4 older siblings who are from different mothers, he stated that it was the religion and culture to share these properties as they belong to all the children. When asked how many lands and houses, the claimant responded that he was not certain how many pieces, but the land was a large piece with one house.

[18] Land ownership is not a core human right. The court has found that those who are able to make reasonable choices to free themselves of a risk of harm must be expected to pursue those options.[11] The claimant testified that his village has a chief and a meeting was summoned where the chief talked to them and there was nothing to show his half siblings had backed down. He further stated that the chief knew the nature of his half siblings and he was advised to go somewhere else if he valued his life. The panel asked if he reported the issue to the police, the claimant testified that in his society, no one bothers with the police as no action is taken unless money is given to them. He then stated that he took the chief’s advise and with the help of his friend’s father left Ghana through Takoradi.

[19] The panel does not find it reasonable that the claimant would put his life at risk for property which he has in essence already given up since he left Ghana, as the half siblings and stepmothers continue to live there. As such, the panel does not find that there is sufficient evidence to establish that the claimant faces a danger of torture, a risk to his life or a risk to cruel and unusual treatment or punishment if he returns to Ghana.

Perceived practice of witchcraft

[20] Ghana constitution prohibits religious discrimination, stipulates that individuals are free to profess and practice their religion, and does not designate a state religion. The estimated population is 28 million with 71percent Christians, 18 percent Muslims and 5 percent practice indigenous or animistic religious beliefs and 6 percent belong to other groups or has no religious beliefs.[12] Even though this demography exists, objective documentation shows that most Ghanaians believe in juju (fetish), ghosts, black magic and evil spirits and will seek help from fetish priests or other spiritual specialists in their locality.[13] The report also indicates that, in certain areas in Ghana, many believe in witchcraft with many hamlets, villages, clans and towns seeking protection against witches or having gods and fetishes to spiritually kill witches.[14]

[21] Objective documentation states that the constitution prohibits practices that dehumanize or are injurious to the physical and mental well-being of a person however the media has reported several killings and attempted killings for ritual purposes. In the Northern, North East, Upper East, and Upper West Regions, families or traditional authorities banished rural women and men suspected of “witchcraft” to “witch camps.” It further states that most of those accused of witchcraft were older women, often widows. Some persons suspected to be witches were killed. In July several individuals beat to death a woman aged 90 suspected of witchcraft in Kafaba, in Savannah Region.[15]

[22] The claimant testified that he had been accused of witchcraft with villagers being told it was passed to him from his late mother through the various narratives by his half siblings and stepmothers. He further testified that in communicating with his friend in Ghana, that there’s ongoing threat against him if he were to return as this information is now in the public domain. Based on the information before the panel, the panel finds that the claimant has established on a balance of probabilities, that he faces a serious possibility of persecution on the basis of his imputed practice of witchcraft in Ghana.

State Protection

[23] In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence that protection would not be forthcoming to a claimant.[16] The United States Overseas Security Advisory Council report states that the Ghana Police Service (GPS) is almost solely a reactive force and demonstrates only moderate proactive techniques and ability to deter crime. It states further that the Ghana Police often lack the equipment, resources, training, and personnel to respond to calls for assistance or other emergencies and that the police have a poor record of investigating and solving serious crimes.[17]

[24] Further objective evidence states that in areas without a significant or permanent presence of public security officers, civil rights are often determined and protected based on traditional law, which does not necessarily follow the letter of public law. This specifically refers to individuals and groups who display socially unacceptable behavior or are accused of such (e. g. “witches”).[18]

[25] The claimants’ testimony is consistent with the country reports referred to above, which report that Ghana police forces is mostly reactive and lack the equipment and resources to solve crimes. The panel notes that’s there is an elevated fear and risk with the claimant being perceived a witch. In these circumstances, the panel finds, on a balance of probabilities, that the claimant cannot avail himself of state protection in Ghana.

Internal Flight Alternative

[26] In Rasaratnam v. Canada (Minister of Employment and Immigration), the Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative was raised, the onus is on the claimant to show that she does not have an IFA.[19] The burden placed on a claimant is fairly high in order to show that the IFA is unreasonable. In the Federal Court of Appeal decision of Ranganathan v. Canada (Minister of Citizenship and Immigration) in 2001, it was stated that the test is to show that the IFA is unreasonable.[20] That test requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimants in relocating to a safe area. Actual and concrete evidence of adverse conditions is required. The panel finds that that the claimant would face a serious possibility of persecution in either Tamale or Accra.

First Prong – Serious Possibility of Persecution

[27] At the hearing, the panel proposed Accra and Tamale as possible IFAs. The objective evidence, as found in the World Factbook for Ghana at item 1.3, indicates that Ghana is a country that’s approximately 230K square kilometres and has a population of approximately 29M. Accra is the capital and it has approximately 2.5M people.[21] The claimant was residing in XXXX which is approximately 248kms from Accra and 375kms from Tamale.

[28] The claimant testified that he fears his half siblings, stepmothers and the society at large. The claimant testified that his siblings are in the transportation industry and therefore he would not be safe as Ghana is not a big country and this is why he cannot live anywhere safely in Ghana. The panel finds that there is not sufficient evidence before it that the half brothers, even though in the transportation business, have the ability and means in harming the claimant any of the proposed IFAs.

[29] The panel then considered the issue of the claimant being perceived a witch in Ghana. The panel notes that there is still ongoing threats about the claimant being a witch in the community. The evidence before the panel as noted above is that most Ghanaians still believe in traditional practices and in the powers of witchcraft. The claimant’s half brothers are into transportation business and therefore have the opportunity to be in different cities with different people.

[30] The Federal Court has repeatedly held that a refugee claimant cannot be expected to live in hiding in order for a proposed IFA to be reasonable. The evidence indicates that the claimant’s half siblings have continued spreading news about him being a witch and as they are truck and taxi drivers, they have, on a balance of probabilities, disseminated this information across several routes. As such, the panel finds that if the claimant returns to Ghana and tries to relocate to either proposed IFA, he would face more than a mere possibility of persecution from the community and general populace as he may be killed for being a witch unless he chooses to live in hiding. It is more than merely speculative that people in Accra or Tamale would learn that he is a witch and harm him.

[31] Based on the totality of the evidence, the panel finds that the claimant would not be safe nor would it be reasonable to relocate to the proposed IFAs , therefore, he would face a serious possibility of persecution in either proposed IFA location and as such there is no viable internal flight alternative available to the claimant.

CONCLUSION

[32] For the foregoing reasons, the panel determines that the claimant is a Convention refugee pursuant to s. 96 of the Act, and therefore accepts the claim.

(signed) Osehise L. Odigie

January 13, 2022

[1] Immigration and Refugee Protection Act,S.C. 2001, c. 27.

[2] Exhibit 2, Basis of Claim form.

[3] Exhibit 1, Claim referral information from CBSA/IRCC

[4] Exhibit 5, Claimant’s Disclosure (statutory declaration, claimant’s birth certificate, marriage certificate, child’s birth certificate and country condition) December 21, 2021

[5] Exhibit 3 National Documentation Package, Ghana, 16 April 2021, tab 3.2: Update to GHA105228 of 15 July 2015 on the “Certified Copy of Entry into Registry of Births” certificate, including additional information on its format and security features; whether the format has changed since 2009; authorized signatories (2009-July 2015). Immigration and Refugee Board of Canada. 17 October 2017. GHA106008.E.

[6] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 3.6: Requirements and procedures for obtaining a passport, both within and outside the country; types of documents accepted as proof of identity and citizenship (2008-2013). Immigration and Refugee Board of Canada. 3 January 2014. GHA104709.E.

[7] Exhibit 5, Claimant’s Disclosure (statutory declaration, claimant’s birth certificate, marriage certificate, child’s birth certificate and country condition) December 21, 2021

[8] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).

[9] Exhibit 5.

[10] Exhibit 4, Minister’s non intervention dated November 10, 2021

[11] Malik v Canada (Citizenship and Immigration), 2019 FC 955 at paras 25-30; Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 at para 19)

[12] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 12.1: Ghana. International Religious Freedom Report for 2019. United States. Department of State. 10 June 2020.

[13] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 12.2: Presence of cults or sects and consequences for refusing to join a cult; government attitude or response towards cults and/or any abuses committed by sect members (2004 – 2006). Immigration and Refugee Board of Canada. 11 October 2006. GHA101612.E.

[14] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 12.2: Presence of cults or sects and consequences for refusing to join a cult; government attitude or response towards cults and/or any abuses committed by sect members (2004 – 2006). Immigration and Refugee Board of Canada. 11 October 2006. GHA101612.E.

[15] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 2.1: Ghana. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

[16] Canada (Attorney General) v. Ward, [1993] 2 SCR 689.

[17] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 7.1: Ghana. 2020 OSAC Crime and Safety Report. United States. Overseas Security Advisory Council. 8 May 2020.

[18] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 1.9: BTI 2020 Country Report — Ghana. Bertelsmann Stiftung. 2020.

[19] Rasaratnam v. Canada (Minister of Employment and Immigration),[1992] 1 F.C. 706 (C.A.).

[20] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.).

[21] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 1.3: Ghana. The World Factbook. United States. Central Intelligence Agency. 10 September 2020.

All Countries Iran

2022 RLLR 14

Citation: 2022 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: February 4, 2022
Panel: Isis Marianne van Loon
Counsel for the Claimant(s): Farhad Khorsandgolchin
Country: Iran
RPD Number: VC1-06223
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1] MEMBER: This is a decision in the Refugee Protection Division in the claim of XXXX XXXX who is a citizen of Iran who is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION

[2] I find that you are a Convention refugee as you have established a well-founded fear of persecution on a Convention ground.

ANALYSIS

IDENTITY

[3] I find that your identity as a national of Iran is established by your testimony and the supporting documentation on file which includes a certified true copy of your passport in Exhibit 1.

ALLEGATIONS, CREDIBILITY, AND FACT FINDING

[4] Your allegations are set out in your Basis of Claim form and in your testimony. The following is a brief summary. You never agreed with the sexism and the lack of freedom under Islam in Iran. Your family sent you to Canada to study and you converted to Christianity here in Canada. You fear persecution on the basis of your conversion if you return.

[5] The presumption before me is that your testimony is true; however, this can be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions or undetailed testimony. The presumption does not apply to inferences or speculation for which there is no evidentiary basis. You have provided several credible documents to support your claim in Exhibit 4.1. There is a letter from lead pastor XXXX XXXX of the XXXX XXXX XXXX confirming your participation from XXXX 2020 and stating that as of XXXX XXXX, 2021, you were taking the 12-week baptism course and the pastor supplied his contact information and invited me to contact him if he can be of further assistance.

[5] In Exhibit 4.2, you were baptized on XXXX XXXX, 2022. There is a certificate to this effect. This was at the XXXX XXXX XXXX. A second letter from Pastor XXXX XXXX dated XXXX XXXX of 2022 confirms that you completed the baptism course and were baptized as well as your participation in church classes, activities, and Sunday worship services. Pastor XXXX XXXX states “I believe he is sincere in his new faith.”

[6] Your testimony was consistent and compelling. You were straightforward and forthcoming. You did not appear to embellish your description of events or actions, and I find you to be a credible witness and therefore believe what you have alleged in support of your claim. Your narrative and your testimony corresponds to the ample objective evidence about conditions in Iran pertaining to those who disavow Islam and convert to Christianity. Accordingly, I have no reason to doubt the central elements underpinning your claim for protection. I accepted that you have converted from Islam to Christianity and given the foregoing, I accept that you subjectively fear persecution in Iran.

NEXUS

[7] I find the persecution you face has a nexus to the Geneva Convention, that of religion, due to your disavowal of Islam and your conversion to Christianity and therefore, I have assessed your claim under Section 96. I also note that you make some statements showing you hold a political opinion in opposition to that of the Iranian regime; however, I have found the previously mentioned nexus to be sufficient to determine your claim.

WELL-FOUNDED FEAR

[8] In order to be considered a Convention refugee, you have to demonstrate a well-founded fear of persecution. This includes both a subjective fear which you have already established, and an objective basis for that fear and it must be forward looking.

[9] Based on your testimony, supporting, documents, and the Country Condition documents, I find you have a well-founded fear of persecution for the following reasons: In testimony, you described the difficulties you had growing up. You wanted to listen to music but it wasn’t allowed because it didn’t conform to the Islamic requirements, you wanted to get together in mixed groups; once again, that wasn’t allowed, you had to hide your own feelings, you weren’t allowed to express yourself, your opinions, or your beliefs. You came to Canada to go to school and you found a degree of freedom that you hadn’t experienced before; however, you ran into a time of difficulty. There were family members who died in Iran, you weren’t able to return, you were alone here unable to work at home, and you spent a very difficult time of your life questioning the meaning of life. Then you told me that you had some acquaintance already with Christianity and its teachings and what happened was you found another meaning for your life and you found this through Christianity. You found the new meaning and tranquility and your life changed and you found that you could be happier and as you believed in your heart, everything improved in your life, you found peace of mind, a job, discipline in your life, and you attribute this all to Jesus Christ.

[10] The country documentation is consistent with your allegations of the treatment of converts such as ourself in Iran. The law prohibits Muslim citizens from changing or renouncing their religious beliefs, Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostacy and apostacy from Islam is a crime that can be punished by death.

[11] Amnesty International stated the following in their June 2019 report entitled Iran Failing on all Fronts. Freedom of religion and beliefs continues to be systematically violated. The authorities impose, on people of all faiths as well as atheists, codes of conduct written in a strict interpretation of Shia Islam. The right to change or renounce religious beliefs continues to be violated with those converting from Islam at risk of arbitrary detention, torture, and the death penalty. The Australian Department of Foreign Affairs and Trade assesses that those accused of religiously based charges are also likely to face charges related to national security and they are unlikely to have adequate legal defence and they are likely to be convicted. So, I’m satisfied that regardless of whether a convert faces the death penalty or imprisonment, the conditions and treatment are such that both amount to persecution. Accordingly, I find your fear of persecution in Iran is well-founded.

STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE

[12] Except in situations where a state is in complete breakdown, states are presumed capable of protecting their citizens. To rebut this presumption, you have to establish on a balance of probabilities with clear and convincing evidence that your state’s protection is inadequate. In this case, the agents of persecution is the states. The persecution you would face if you return to Iran is at the hands of the authorities. Accordingly, I find there is no state protection available to you. The presumption of state protection is rebutted. The states are in control of its territories and therefore, I find there is a serious possibility of persecution throughout Iran for you and there is no viable Internal Flight Alternative where you could safely relocate given your circumstances.

CONCLUSION

[13] Based on the totality of the evidence, I have concluded that you are a Convention refugee. Accordingly, I am accepting your claim.

———- REASONS CONCLUDED ———

[1] This is the decision of the Refugee Protection Division in the claims of XXXX XXXX XXXX XXXX XXXX XXXX (the “principal claimant”) and her spouse, XXXX XXXX XXXX XXXX (the “associate claimant”). The Claimants are citizens of Honduras and are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2] The details of the Claimants’ allegations are fully set out in their Basis of Claim (BOC) forms and were supplemented by their oral testimony.[1] In summary, the Claimants fear they will be killed by the Mara 13, also known as the MS13, in Honduras because they stopped paying the ‘war tax” that the Mara 13 had extorted from them weekly and because the Claimants filed a report against the Mara 13 with the Honduran police.

DETERMINATION

[3] I find on a balance of probabilities that the Claimants would be subjected personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment, at the hands of the Mara 13 should they return to Honduras, for the following reasons.

ANALYSIS

Identity

[4] The Claimants’ identities as nationals of Honduras are established by the sworn statements in their BOC forms and the certified copies of their Honduran passports contained in evidence.[2]

Nexus

[5] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds enumerated under s.96 of IRPA: race, religion, nationality, membership in a particular social group or political opinion. Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons.[3]

[6] The Claimants submit that there is a nexus in their case to the Convention ground of political opinion and allege they face persecution due to their imputed political opinion.

[7] I find that there is nothing particular about this case which takes it outside the general principles as set out in Kang. I find the Claimants were victims of crime and their lives are at risk because they face retribution for ceasing to obey the Mara 13. As victims of crime who fear future criminality, I find that the Claimants have not established a nexus to one of the Convention grounds. I will therefore assess their claims under section 97(1) of IRPA.

Credibility

[8] The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[4] The presumption of truthfulness does not apply to inferences or speculation.

[9] In this case, I have found no reason to doubt the truthfulness of the Claimants. The principal claimant testified in a straightforward and convincing manner and was able to answer questions spontaneously and in detail about the extortion and the fear she felt on a daily basis. The Claimants provided corroborating evidence, found in Exhibit 5, to support their allegations including their business licence, photographs of the Claimants in their business, and a copy of the police report filed on XXXX XXXX, 2021.

[10] I find that the following facts have been established on a balance of probabilities:

a) The Claimants owned an operated a XXXX XXXX, or “XXXX”, in Honduras. The XXXX was a profitable business and had a large clientele.

b) In XXXX 2021, a masked man who identified himself as Mara 13 and who had XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX attended the XXXX and demanded the Claimants pay a “war tax” of 5000 lempiras on a weekly basis. The man stated that he knew everything about the Claimants’ family and their business and stated the Claimants would be killed if they did not pay the money.

c) Based on the man’s self identification as a member of the Mara 13 and because of his XXXX XXXX, I accept that the individual who extorted the Claimants was a member of the Mara 13 on a balance of probabilities.

d) Between XXXX 2021 and XXXX 2021, the amount the Claimants were extorted to pay rose from 5000 lempira weekly to 30,000 lempira weekly. The Claimants used profits from the business, their savings, and ultimately sold their cars and some personal belongings in order to make the payments.

e) The Claimants made one payment of 30,000 lempira on XXXX XXXX, 2021. The Claimants abandoned their home and business on XXXX XXXX, 2021, the day before the next payment of 30,000 lempira was due.

f) The Claimants made a police complaint against the Mara 13 on XXXX XXXX, 2021 at a police station in a different town. The Claimants spent the night of XXXX XXXX, 2021 at the airport awaiting their flight out of Honduras on XXXX XXXX, 2021.

Risk of Harm

[11] In order to establish they are persons in need of protection under section 97(1)(b), the Claimants must show they would be subjected personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment which is not faced generally by others in Honduras.

[12] When I consider the objective country evidence in relation to the Claimants’ profile as small business owners who have been previously extorted by the Mara 13, I find that the Claimants have established on a balance of probabilities that they face a risk to their life at the hands of the Mara 13 if they returned to Honduras.

[13] The National Documentation Package contains several articles and reports on the Mara 13. A report by Insight Crime, states that:

The Mara Salvatrucha (MS13) is one of the world’s largest and arguably most violent street gangs. After relatively humble beginnings in Los Angeles in the 1980s, it has spread to more than a half-dozen countries and become a central focus of law enforcement in two hemispheres. In spite of these efforts, the MS13 remains a persistent threat and shows signs of expanding its criminal portfolio. The MS13 has between 50,000 and 70,000 members who are concentrated in mostly urban areas in Central America or locations outside the region where there is a large Central American diaspora. In Honduras and Guatemala, the gang is still largely urban. Violence is at the heart of the MS13 and is what has made it a target of law enforcement in the United States, Central America and beyond. It is central to the MS13’s ethos, its modus operandi, and its evaluation and discipline of its own members. Violence also builds cohesion and comradery within the gang’s cliques. This use of violence has enhanced the MS13’s brand name, allowing it to expand in size and geographic reach, but it has undermined its ability to enter more sophisticated, money-making criminal economies.[5]

[14] The US Department of State Travel Advisory for Honduras states:

Hondurans continue to be affected by MS-13 (Mara Salvatrucha) and Calle 18 gang activity in cities such as Tegucigalpa, Choloma, La Ceiba, Tela, and San Pedro Sula. Most crime victims are members of rival gangs, small business owners who resist gang extortion, passengers on public transportation, or those involved in land disputes. The MS-13 and Calle 18 gangs are the most active and powerful gangs present in Honduras. Gangs are not reluctant to use violence, and specialize in murder-for-hire, carjacking, extortion, and other violent street crime…[6]

[15] In addition, the objective evidence indicates organized crime groups, including the Mara 13, use extortion as one of their primary sources of income.[7] One clique of the MS 13 murdered approximately 40 people between 2016 and 2019 “for not paying extortions, or on suspicion that [the victims] were informants for authorities”.[8]

[16] Furthermore,

Clique leaders keep a close eye and strict control over who gets targeted for extortion, how much money is collected and how often. New targets can be proposed and accepted during meetings. Gang leaders may also discuss issues with collection during those meetings, including whether or not to discipline a target for not paying, not paying on time or absconding.[9]

[17] One recent example of retribution against a pulperia owner occurred in October 2021. As reported in a Honduran newspaper, a pulperia owner refused to pay the extortion demands and was shot and killed on the street, presumably by gang members.[10]

[18] The objective evidence discussed above establishes that MS13 is a prominent and highly violent gang operating throughout Honduras, which uses the extortion of small business owners as a primary source of income.

[19] Given the Claimants have already been targeted by the Mara 13 and subsequently stopped making their regular extortion payments, I find, on a balance of probabilities, the Mara 13 are motivated to harm or kill the Claimants in retaliation for ceasing to pay them money, for reporting them to the police, and as a warning to others who refuse the Mara 13’s demands.

State Protection

[20] I find that there is no adequate state protection for the Claimants in Honduras.

[21] The principal claimant testified that when she and her husband filed the complaint with the police, the police told the Claimants that they would not be able to protect them as the police were understaffed and underfunded.

[22] The objective evidence supports the principal claimant’s testimony. As cited above, the Mara 13 has not been suppressed by state authorities; rather, the Mara 13 has been growing in both size and geographical reach. Objective evidence shows that police response to crime is unsatisfactory and undermined by lack of training and resources:

The government lacks resources to investigate and prosecute cases; police often lack vehicles/fuel to respond to calls for assistance. Police may take hours to arrive at the scene of a violent crime or may not respond at all.[11]

[23] Therefore, based on the evidence discussed above and the Claimant’s own experience in seeking protection from the police in Honduras, I find, on a balance of probabilities, that the Claimants will not be able to access adequate state protection in Honduras, and that the presumption of state protection has been rebutted.

Internal Flight Alternative (IFA)

[24] I find that there is no viable IFA for the Claimants in Honduras. The agent of harm is motivated to pursue the Claimants for refusing to comply with their demands and for reporting them to the police. As stated above, the Mara 13 uses violence to ensure compliance with their demands of extortion. The Mara 13 is a widespread criminal organization with significant resources and have the means and presence throughout the country to pursue the Claimants anywhere in Honduras. As already discussed, the objective evidence shows targets are disciplined by the Mara 13 for not making their payments and for absconding, both of which the Claimants have done. Therefore, I find that the Claimants will not be able to live safely anywhere in Honduras and they do not have a viable IFA.

CONCLUSION

[25] When I consider the Claimants’ personal circumstances, the objective country evidence, the lack of state protection and lack of viable IFA, I find that the Claimants have established on a balance of probabilities that they face a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the Mara 13 if they were to return to Honduras. I therefore find that the Claimants are persons in need of protection pursuant to section 97 of IRPA and accept their claim.

(signed) Alannah Hatch

January 18, 2022

[1] Exhibits 2.1 and 2.2.

[2] Exhibits 1 and 5.

[3] Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128at para. 10).

[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302.

[5] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.2 : MS13 in the Americas: How the World’s Most Notorious Gang Defies Logic, Resists Destruction. Insight Crime; Center for Latin American and Latino Studies. Steven Dudley, Héctor Silva Ávalos. 16 February 2018.

[6] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.14: OSAC Country Security Report, September 13, 2021.

[7] Exhibit 5, “Extortion Drives Displacement of Victims and Perpetrators Alike in Honduras”, Insight Crime, Aug. 2, 2018. See also, “The MS13’s Vital Fuel: Extortion”, Insight Crime, April 26, 2019.

[8] Exhibit 5, “Inside an MS13 Clique’s Campaign of Terror at the Honduras-El Salvador Border”, Insight Crime, June 5, 2020.

[9] Supra, Exhibit 3, Tab 7.2.

[10] Exhibit 5, “Pulperia owner killed due to extortion”, La Prensa¸ October 11, 2021.

[11] Supra, Exhibit 3, Tab 7.14.

All Countries Honduras

2022 RLLR 13

Citation: 2022 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2022
Panel: Alanna Hatch
Counsel for the Claimant(s): Wendy Aguilar
Country: Honduras
RPD Number: VC1-06006
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1] This is the decision of the Refugee Protection Division in the claims of XXXX XXXX XXXX XXXX XXXX XXXX (the “principal claimant”) and her spouse, XXXX XXXX XXXX XXXX (the “associate claimant”). The Claimants are citizens of Honduras and are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

DETERMINATION

ANALYSIS

Identity

[4] The Claimants’ identities as nationals of Honduras are established by the sworn statements in their BOC forms and the certified copies of their Honduran passports contained in evidence.[2]

Nexus

[6] The Claimants submit that there is a nexus in their case to the Convention ground of political opinion and allege they face persecution due to their imputed political opinion.

[7] I find that there is nothing particular about this case which takes it outside the general principles as set out in Kang. I find the Claimants were victims of crime and their lives are at risk because they face retribution for ceasing to obey the Mara 13. As victims of crime who fear future criminality, I find that the Claimants have not established a nexus to one of the Convention grounds. I will therefore assess their claims under section 97(1) of IRPA.

Credibility

[10] I find that the following facts have been established on a balance of probabilities:

The Claimants owned an operated a XXXX XXXX, or “XXXX”, in Honduras. The XXXX was a profitable business and had a large clientele.

In XXXX 2021, a masked man who identified himself as Mara 13 and who had XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX attended the XXXX and demanded the Claimants pay a “war tax” of 5000 lempiras on a weekly basis. The man stated that he knew everything about the Claimants’ family and their business and stated the Claimants would be killed if they did not pay the money.

Based on the man’s self identification as a member of the Mara 13 and because of his XXXX XXXX, I accept that the individual who extorted the Claimants was a member of the Mara 13 on a balance of probabilities.

Between XXXX 2021 and XXXX 2021, the amount the Claimants were extorted to pay rose from 5000 lempira weekly to 30,000 lempira weekly. The Claimants used profits from the business, their savings, and ultimately sold their cars and some personal belongings in order to make the payments.

The Claimants made one payment of 30,000 lempira on XXXX XXXX, 2021. The Claimants abandoned their home and business on XXXX XXXX, 2021, the day before the next payment of 30,000 lempira was due.

The Claimants made a police complaint against the Mara 13 on XXXX XXXX, 2021 at a police station in a different town. The Claimants spent the night of XXXX XXXX, 2021 at the airport awaiting their flight out of Honduras on XXXX XXXX, 2021.

Risk of Harm

[13] The National Documentation Package contains several articles and reports on the Mara 13. A report by Insight Crime, states that:

[14] The US Department of State Travel Advisory for Honduras states:

[16] Furthermore,

State Protection

[20] I find that there is no adequate state protection for the Claimants in Honduras.

Internal Flight Alternative (IFA)

CONCLUSION

(signed) Alannah Hatch

January 18, 2022

[1] Exhibits 2.1 and 2.2.

[2] Exhibits 1 and 5.

[3] Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128at para. 10).

[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302.

[6] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.14: OSAC Country Security Report, September 13, 2021.

[8] Exhibit 5, “Inside an MS13 Clique’s Campaign of Terror at the Honduras-El Salvador Border”, Insight Crime, June 5, 2020.

[9] Supra, Exhibit 3, Tab 7.2.

[10] Exhibit 5, “Pulperia owner killed due to extortion”, La Prensa¸ October 11, 2021.

[11] Supra, Exhibit 3, Tab 7.14.

All Countries Nigeria

2022 RLLR 12

Citation: 2022 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: February 8, 2022
Panel: Kevin Kim
Counsel for the Claimant(s): Mary Alison Pridham
Country: Nigeria
RPD Number: VC1-06001
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
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 as a citizen of Nigeria who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”) .

[2] The panel has considered and applied the Chairperson’s Guideline 4 on Female Refugee Claimants fearing gender-related persecution, particularly when considering the possibility of an internal flight alternative.

ALLEGATIONS

[3] The following is a brief synopsis of the claimant’s allegations as set out in her Basis of Claim (BOC) form as well as her testimony. The claimant is a 30-year-old Nigerian woman who fears persecution from her mother-in-law who is a member of the XXXX XXXX.

[4] The claimant alleges that her mother-in-law has been targeting the claimant’s son to be initiated into the XXXX XXXX, and that her mother-in-law has been attempting to forcefully take the claimant’s son away.

[5] After the claimant married her husband, she moved into his family home and lived with her husband and his family, including the husband’s mother. Due to the husband’s job, he traveled frequently for months at a time across Nigeria and was often unable to be contacted as he was out of cellular service. In 2016, the claimant and her mother traveled to Canada for vacation while the claimant was pregnant with her son. In XXXX 2016, the claimant gave birth to her son in Canada.

[6] The claimant alleged that her relationship with her mother-in-law has always been tumultuous. On XXXX XXXX, 2018, at her family home, the claimant’s mother-in-law and her husband’s cousin insulted the claimant and pushed her, injuring the claimant’s leg. In XXXX 2018, the mother-in-law made death threats to the claimant and stated that if the claimant did not surrender her son, she would send the “area boys to attack her and kill her so that she will no longer be a problem for her”. The claimant reported this incident to the police, but the claimant alleged that the police did not act as the mother-in-law was an influential member of the XXXX XXXXwith connections to the police. Although the mother-in-law was required to report to the police, she was let go within the same day. Furthermore, the claimant alleged that the police ignored this matter and dismissed it as a domestic dispute.

[7] Feeling unsafe, the claimant fled to her cousin’s house with her son in XXXX on XXXX XXXX, 2018. At her cousin’s home, the claimant continued to receive threatening phone calls from her mother-in-law. The claimant changed her phone number, but she continued to receive threatening phone calls from her mother-in-law who said that she knows the claimant is hiding in XXXX and there was no point in hiding as she would eventually find her.

[8] On XXXX XXXX, 2018, the claimant fled to her church in Lagos where she took shelter for 24 days. Although the threatening phone calls continued, the claimant’s mother-in-law or anyone from the XXXX XXXXwas able to confront her directly. The claimant testified that she believes her mother-in-law knew the general vicinity of where she was, but not the precise location.

[9] The claimant fled Nigeria with her son on XXXX XXXX, 2018 and made a claim in Canada on June 12, 2018.

DETERMINATIONS

[10] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act for the reasons that follow.

ANALYSIS

Identity

[11] The panel finds that the claimant’s personal identity and her identity as a citizen of Nigeria has been established on a balance of probabilities by a copy of her Nigerian passport.

Nexus

[12] The panel finds that the claimant’s allegations establish a nexus to the Convention ground of particular social group as a woman experiencing domestic violence in Nigeria. Therefore, the panel will assess this claim under section 96 of the Act.

Credibility

[13] When a claimant swears to the truth of his or her allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. In this case, the panel has found no reason to doubt the claimant’s truthfulness. The claimant testified in a straightforward manner that was consistent with all of the other documents on the file, including her Basis of Claim form and narrative. The claimant was able to answer all questions fully and provided all details that were requested of her. There were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before the panel, which have not been satisfactorily explained.

[14] The claimant also provided documentary evidence in support of her claim. The documents form parts of Exhibit 4 and contain the following:

1. XXXX XXXXcard of XXXX XXXX, the claimant’s mother in law;

2. Medical report for the claimant dated XXXX XXXX, 2018;

3. Police report dated XXXX XXXX, 2018 in relation to the death threats made by the mother-in-law towards the claimant.

[15] Although the panel initially had some concerns with the legitimacy of the medical report and the police report due to formatting and grammatical mistakes identified, the panel accepts the claimant’s explanation of the mistakes to be typographical in nature and finds the documents to be genuine.

[16] Ultimately, in terms of the claimant’s allegations, the panel finds the following:

1. The claimant’s mother-in-law is a member of the XXXX XXXX;

2. The claimant’s mother-in-law has attacked her on XXXX XXXX, 2018 and made death threats to the claimant demanding that she surrenders her son in XXXX 2018;

3. The claimant’s mother-in-law continued to threaten her while the claimant hid at her cousin’s home as well as her church;

4. The claimant’s mother-in-law was able to find her new phone number and knew of her general vicinity while the claimant was fleeing.

Well-Founded Fear of Persecution and Risk of Harm

[17] Turning to the well-founded fear of persecution, the panel accepts that the claimant has a subjective fear of returning to Nigeria. Considering the totality of the evidence, the panel finds that the claimant’s subjective fear is objectively well-founded and if she was to return, she would face a serious risk of persecution. Although the panel finds that the sphere of influence and the reach of the XXXX XXXXhas been diminishing in the recent years, as will be discussed below, the panel finds that the claimant’s fears are objectively well-founded.

[18] The objective evidence as set out in the National Documentation Package (NDP) confirms that the XXXX XXXXexists. According to the EASO Country of Information , the XXXXis the best-known but certainly not the only secret society in Nigeria. The XXXX XXXX is a caste of Yoruba priests who elected and controlled the Oba, the Oruba king. The XXXXhad great political and societal powers, and it used to be highly prestigious to become a member.

[19] The same report indicates that the XXXX XXXXhad considerable influence in Nigerian society and government in the 1990s. Only members of the XXXX XXXXcould give access to an influential or government job. However, nowadays, the influence of the XXXX XXXXis declining although not totally disappeared. The report noted that in these days, money is a greater means to access political power.

[20] The same report also indicates the general sphere of influence of the XXXX XXXX. It indicates that the XXXXare only influential in “Yoruba parts of Nigeria where they still have some real influence… [cities such as] Egba, Egbado, and Abeokuta parts of Nigeria (Ogun and Lagos States). Also, in some rural villages and small towns along in the borders of Ogun state with Oyo, Osun, and Ondo, they might still be able to intimidate pockets of people”. However, the report also indicates that XXXXare often members of Nigerian society’s elites working in the police, judiciary, and government institutions.

[21] Turning to the refusal of membership in the XXXX XXXX, the report indicates that while membership in the XXXX XXXXis primarily voluntary, social pressure and intimidation can occur, especially when the person refusing has personal knowledge of the XXXX XXXX. The report indicates that “refusal to join in such cases is very difficult”.

[22] The panel acknowledges that the evidence regarding the capacity and influence of the XXXX XXXXis mixed. The evidence appears to indicate that the XXXX XXXXis a well-known secret society that wielded considerable power in the 1990s but has been declining in the recent years. However, the panel finds that the claimant’s fears are well-founded as the persecution she has experienced, such as the beatings and death threats from her mother-in-law, has been localized in Lagos and Ogun states, where the objective evidence indicates the XXXX XXXX still has a considerable amount of influence.

[23] Based on the claimant’s testimony regarding the sustained periods of domestic abuse suffered by the hands of her mother-in-law and other relatives, and due to the claimant’s personal knowledge of the XXXX XXXXresulting from living in the same household as her mother-in-law, the panel finds that the claimant would face a serious risk of persecution should she return to Nigeria. Therefore, the panel finds that the claimant has a well-founded fear of persecution.

State Protection

[24] There is limited country conditions documents that directly reflect whether state agencies would protect individuals from the XXXX XXXX. According to the United States Department of State report , the government in Nigeria lacked effective mechanisms and sufficient political will to investigate and punish most security force abuse and corruption. Police remained susceptible to corruption, committed human rights violations, and operated with widespread impunity in the apprehension, illegal detention, and torture of suspects. This document raises serious concerns about the efficacy of state protection agencies in Nigeria.

[25] The claimant also testified that she went to the police regarding the death threat her mother-in-law made in XXXX 2018. Although the police report provided by the claimant indicates that the mother-in-law was invited for an investigation, she was released on the same day and no further investigations were actioned by the police. The claimant testified that she was only let off with a warning, and the claimant believes that this is because of her influence in the XXXX XXXX.

[26] Further, as mentioned earlier, some members of the XXXX XXXXare connected to or are members of the Nigerian elite, such as the police, judiciary, or politicians. The evidence indicates that some of the XXXX XXXXappears to be above the law. When the panel reviews the totality of the evidence, the limitations of the police and in general in Nigeria and the links between the XXXXand Nigerian authorities, the panel finds that there is clear and convincing evidence that state protection would not be reasonably forthcoming to the claimant. As such, the panel finds that there is no operationally effective state protection for the claimant in Nigeria.

Internal Flight Alternative

[27] The final issue is whether the claimant has a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, the panel must assess whether there is any location in Nigeria in which claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there. At the outset of the hearing, the panel proposed Abuja as a possible IFA. The panel finds that the claimant does not have a viable IFA because the panel finds that given the claimant’s profile as a woman who would mostly travel and live alone without her husband, it would be unreasonable for the claimant to relocate within Nigeria.

First prong – Means and motivations of mother-in-law and XXXX XXXX

[28] Turning to whether the claimant’s mother-in-law or the XXXX XXXXas a whole would have the means and the motivation to find the claimant in Abuja, the panel finds that they would not. The evidence about the XXXX XXXX seems to indicate that although they were powerful and well-known in the past, their capacity and their influence has been diminishing in the recent years. Furthermore, the sphere of influence of the XXXX XXXXappears to be localized in the Ogun and Lagos states which is in the southwest region of Nigeria. This sphere of influence does not include Abuja, which is in central Nigeria.

[29] The claimant testified that she ran away to her cousin’s home in XXXX and to her church in Lagos, where the objective evidence appears to indicate that the XXXX XXXXstill has a considerable amount of influence. Although the claimant’s mother-in-law was able to find the claimant’s new phone number, she was never able to precisely locate the claimant at the claimant’s church or her cousin’s home despite the fact that these locations are within the XXXX XXXXarea of influence.

[30] The panel notes that the claimant’s church and her mother in law’s home are both located in Lagos, and that the claimant remained hidden in her church for 24 days prior to leaving Nigeria. However, despite being so close geographically, the claimant’s mother-in-law was not able to precisely locate the claimant. The panel therefore finds that the XXXX XXXXlacks the means to locate an individual, even within their reported sphere of influence. Therefore, the panel finds that the claimant’s mother-in-law or the XXXX XXXXwould have the means to locate the claimant in Abuja.

[31] Turning to the motivations of the agents of persecution, the panel finds that the claimant’s mother-in-law or the XXXX XXXXas a whole still has the motivation to locate the claimant. The claimant testified that ever since coming to Canada, the claimant never had any direct contact with her mother-in-law or any other members of the XXXX XXXX. The claimant also did not mention any threats made to her family or friends from the XXXX XXXX. The panel therefore finds that the agents of persecution in this specific case lacks the motivation to locate the claimant because of the lack of measures taken by the claimant’s mother-in-law or the XXXX XXXX.

[32] As such, the panel finds that there is no serious possibility that the claimant’s mother-in-law or the XXXX XXXXas a whole would locate the claimant in Abuja.

Second prong – Reasonableness test, jeopardy to life or safety

[33] Considering the totality of the evidence, the panel finds that the claimant would face jeopardy to her life or safety should she relocate to Abuja. In coming to this conclusion, the panel has considered the claimant’s profile as a woman traveling with a young son whose husband is largely absent due to his work obligations.

[34] The claimant wrote in her narrative and also testified that although she and her husband is still married and on good terms, there are times when she is left to support herself alone for extended periods of time. The claimant testified that she was not able to contact her husband to tell him about the attack on XXXX XXXX, 2018 and the threats in XXXX 2018 because he was out of cellular service, and that she was only able to contact him after she arrived in Canada. When asked if this kind of occurrence is common with her husband, the claimant testified that it is does happen from time to time and she has learned to deal with issues herself.

[35] The documentary evidence is clear that women in Nigeria are subject to stereotypical beliefs and cultural norms that significantly restrict a woman’s ability to participate in free and equal individuals.

[36] The US Department of State report in the NDP indicates that women in Nigeria are subjected to considerable economic discrimination and that the culturally implemented restrictions on women prevent women from finding jobs in numerous industries. In a report at tab 5.1 , women are frequently restricted to work in the informal sectors, which carries a high level of uncertainty, a high risk of employment, lower wages, and in some cases an outright dangerous work environment.

[37] Both the US Department of State report and the report at tab 5.1 indicates that it is commonplace for employers to request sexual favours from women in exchange for employment. Sexual violence is endemic both in the household and in the community at large.

[38] At tab 5.9 , a report about female headed households, indicates that it is very difficult, or even potentially impossible, for women to live independently as a single woman, to relocate without a support network, and that it is “very difficult for women heads of households” to survive in any place in Nigeria. Potential landlords suspect single women as working as prostitutes or may demand sexual favours for a place to live. The panel finds that there is a serious risk that the claimant could be left unemployed and homeless.

[39] Should the claimant relocate to Abuja, she would be relocating without any family support and with only limited support from her husband, whose employment requires him to travel throughout Nigeria. Considering all of the circumstances, including the current situation in Nigeria as well as the claimant’s personal circumstances, the panel finds that the claimant would face a serious risk of persecution should she relocate to Abuja as a single woman trying to establish her own household. Therefore, the panel finds that the claimant does not have a viable IFA in Nigeria.

CONCLUSION

[40] In conclusion, for the reasons above, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act and the Refugee Protection Division acPSGcepts her claim.

(signed) Kevin Kim

February 8, 2022