Categories
All Countries Colombia

2019 RLLR 56

Citation: 2019 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: D. Marcovitch
Counsel for the claimant(s): Jonathan W. Jurmain
Country: Colombia
RPD Number: TB8-04624
Associated RPD Number(s): TB8-04707, TB8-04708, TB8-04745, TB8-21591,TB8-21612, TB8-21613, TB8-21548
ATIP Number: A-2020-01274
ATIP Pages: 000108-000113


DECISION

[1]       MEMBER: This is an oral decision in the claims for refugee protection submitted by [XXX], [XXX], [XXX], [XXX], [XXX], [XXX], [XXX], and [XXX].

[2]       I’ve considered your testimony and all the evidence in this case and I’m ready to render my decision orally.

[3]       The claims were joined pursuant to Rule 55 of the RPD rules. [XXX] was the designated representative for the minor claimants [XXX] … [XXX] and [XXX] and [XXX] was the designated representative for [XXX] and [XXX] pursuant to Section 167(2) of the Immigration and Refugee Protection Act.

[4]       Your claims for protection have been made pursuant to Sections 96 and Sections 97(1) of the Immigration and Refugee Protection Act.

[5]       The claimants allege that they face a threat to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Columbia.

[6]       The claimant [XXX] was a [XXX] in Columbia and was actively involved in helping poor claimants … sorry, poor citizens who had been affected by the various active conflicts that have been plaguing Columbia.

[7]       [XXX]’s immediate family in this claim includes [XXX] his wife and his two children [XXX] and [XXX].

[8]       [XXX] came to the attention of the Clan del Golfo when he attempted to enter a poor neighbour in Cucuta North Santander with the intention of meeting a social leader and setting up forms where he could meet citizens and try to help them with land restitution or other [XXX].

[9]       Before you could enter the neighbourhood [XXX] was stopped and investigated by four armed men who claimed to be part of a neighbour … to be part of neighbourhood security and members of the Clan del Golfo. He was eventually free to leave but the men had called their commander and advised that they would be calling him later so that he could do them a favour.

[10]     [XXX] went to the police and filed a denunciation.

[11]     In [XXX] 2017 [XXX] received a call from the Clan del Golfo telling him to return to Cucuta within 10 days in order to discuss a business proposal. [XXX] was advised that the Clan de Golfo knew where he was living in [XXX] and knew many other details about him and his family. Nonetheless, [XXX] did not travel to Cucuta for the meeting.

[12]     After this [XXX] was approached and threatened on several more occasions.

[13]     By [XXX] 2017 the Clan de Golfo had stopped trying to gain his cooperation and instead demanded [XXX] pesos every three months in order for him to continue living. This demand was presented in a threat letter from the Autodefensas Gaistanistas de Columbia and was on their letterhead. The letter also declared XXXX and his family military objectives.

[14]     [XXX] went to the police, the Attorney General, and the Ombudsman seeking assistance for the continued threats and demands. He had also hired private security to protect himself while working.

[15]     Despite being a [XXX] and being familiar with State protection mechanisms, [XXX] was unable to get meaningful assistance from any of the previously mentioned government bodies.

[16]     As a result, [XXX] and his family left Columbia in [XXX] 2018.

[17]     The claimant [XXX] and his immediate family which consists of his wife [XXX] and his children [XXX] and [XXX] claim refugee protection based on being threatened by the same Clan de Golfo members that were seeking out his brother-in-law [XXX].

[18]     [XXX] alleges that he was approached on the street in Bogota on [XXX], 2018 by people claiming to be members of the Clan de Golfo and that they were seeking the whereabouts of [XXX]. [XXX] did not provide them with the information as he not seen [XXX] in several months and was unsure of his location. The Clan de Golfo offered [XXX](ph) … sorry, offered [XXX] financial reward if he had helped them.

[19]     About a week later [XXX] filed a report with the Attorney General about the incident even though he had been turned away from the police twice when he attempted to seek their assistance. [XXX] managed to get a protection order from the Attorney General and provided it to the police. The police dropped by his home and provided three telephone numbers for him to call if he noticed anyone following him.

[20]     The Clan de Golfo contacted [XXX] by phone on [XXX] and then again on [XXX], 2018 to see if he had the requested information. [XXX] reported both of these calls to the fiscalia.

[21]     Eventually, [XXX] received a letter from the Clan de Golfo which declared him and his family military objectives. Along with the letter were also photographs of [XXX]’s family members outside their home and at different locations within Bogota.

[22]     As a result, [XXX] and his family fled Bogota to the United States where they then irregularly crossed into Canada. It was always their intention to come to Canada but could not do directly as their temporary resident visa application had been denied on the basis that [XXX] and his family had already applied for refugee protection.

[23]     [XXX] and his family entered Canada on [XXX], 2018.

[24]     I find that all the claimants are persons in need of protection pursuant to Section 97 of the Immigration and Refugee Protection Act as the risk was occasioned as a result of criminality and extortion and not … and not on the basis of [XXX] political opinion.

[25]     I find that the claimant’s personal identities as nationals of Columbia has been established, on a balance of probabilities, by certified copies of each claimant’s passports which have been seized by Canadian Immigration officials.

[26]     With respect to credibility, I find that the claimants were all credible witnesses.

[27]     I asked extensive questions of [XXX] and he was able to answer my questions clearly and with detail.

[28]     I was concerned about the placement of the fiscalia emblem on the reverse side of his fiscalia reports but in the absence of evidence that such a practice is abnormal, I do not take a negative inference against it.

[29]     I had a few credibility concerns with [XXX]’s testimony as it related to an omission regarding his activities on the day following his first Clan de Golfo contact wherein he went to the United States Embassy in Bogota, but I do not have any clear basis to impugn the core of his allegations on this point alone.

[30]     The claimants also submitted credible documentary evidence in support of their claims, including support letters from politicians, security guards, fiscalia reports, Ombudsman reports, copies of the AGC threat letters, and a text threat message which corroborates their testimony.

[31]     I therefore accept what the claimants have alleged in support of their claims.

[32]     I also note that the objective documentation confirms that Clan de Golfo is an alternative name for the Autodefensas Gaistanistas de Columbia also known as the AGC, and I therefore accept that when the claimants indicate they were threatened by the Clan de Golfo, but the threat letter is from the AGC, that it is the same organization.

[33]     Now, I would normally have considered that the claimants could have had an internal flight alternative in the City of Tunja in Boyaca Department, but because the claimants have been declared military objectives I removed this options as an active issue.

[34]     Documents on file indicate that when a person is made a military objective it means that their life, physical integrity, and freedom are endangered and that this threat extends to the family.

[35]     The National Documentation Package response to information request at Item 7.2(1) suggests that when someone is declared a military objective means they had been marked as someone who is to be killed. I therefore found it odd that [XXX]’s threat letter from the AGC demands money at the same time as declaring him a military objective. This does not directly fit without being declared a military objective plays out according to the NDP document.

[36]     However, on a balance of probabilities, I find that you were, in fact, declared military targets. Further, given that you made several denunciations and sought State protection, I find, on a balance of probabilities, that the risk to [XXX] and his family would have increased.

[37]     Likewise, [XXX]’s family having also been declared military targets and in conjunction with the photographs taken of him and his family, that the threat letter declaring them military target is credible.

[38]     For the following reasons I find that State protection would not be forthcoming for the claimants.

[39]     The objective documentation notes that there’s been some improvement in State response to bacterium groups but the efforts have been mainly confined to a peace with the ELN.

[40]     The State has also managed to see a large demobilization of FARC. However, despite this groups such as the Clan de Golfo which have moved into the territory of the demobilized FARC and have become the largest actrime(ph) group in the country. The Clan de Golfo continues to intimidate opponents and commit other crimes.

[41]     Further, there are reports of complicity and collaboration between bacterium groups and security forces. Investigation of murders by such groups continues at a slow pace and there continues to be issues of impunity for security forces involved in human rights abuses.

[42]     The United Nations High Commission on Refugees reports that witness protection in Columbia continues to be inadequate. They further note that the ability of the government to provide protection is limited due to capacity issues and issues with corruption.

[43]     Further, as a [XXX] who works with disadvantaged citizens, [XXX]’s profile may fall within those profiles considered in the UNHCR refugee eligibility guidelines.

[44]     Further, as the claimants provided evidence that they approached the authorities on a number of occasions but … but no meaningful assistance was forthcoming, I find that adequate State protection was not available to them in the past and would not be in the future.

[45]     Based on the foregoing I find, on a balance of probabilities, that the claimants would not receive adequate State protection in Columbia.

[46]     As previously noted with respect to NDP Item 7.2(1), with the claimants having been declared military objectives, the objective evidence suggests that bacterium groups will travel to anywhere in the country in order to find those who have been declared military objectives. As such, an internal flight alternative will not be available to these clients, so excuse me, claimants.

[47]     I therefore conclude that the claimants are Convention refugees. Excuse me. I therefore conclude that the claimants are persons in need of protection and I therefore accept their claims. Good luck.

[48]    COUNSEL: Thank you.

[49]    CLAIMANT: Thank you so much.

[50]    MEMBER: You’re welcome.

———- REASONS CONCLUDED ———-

Categories
All Countries Hungary

2019 RLLR 55

Citation: 2019 RLLR 55
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2019
Panel: William T. Short
Counsel for the claimant(s): Kristina Cooke
Country: Hungary
RPD Number: TB8-04266
ATIP Number: A-2020-01274
ATIP Pages: 000104-000107


DECISION

[1]       On February 11, 2019, the Refugee Protection Division (RPD) heard the claim of [XXX], who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[2]       This is the positive decision with respect to the matter of TB8-04266 of [XXX]. He is a citizen of Hungary of Roma descent, and claims to be a Convention refugee or a person in need of protection pursuant to the provisions of 96 and Subsection 97(1) of the Immigration and Refugee Protection Act1 on account of his Roma heritage.

[3]       The claimant has asserted that he was subjected to severe and chronic societal and economic discrimination in Hungary because of his Roma ethnicity. He was further attacked on one particular occasion by some so-called “skinheads,” and the police who were called did not seem very interested in protecting this fellow.

[4]       For a more complete and detailed examination or recital of his allegations, one can regard the narrative portion of his Basis of Claim (BOC) Form,2 which has been taken into evidence as Exhibit 2.

[5]       The claimant’s assertions are in keeping with country documents with respect to the plight of the Roma in Hungary. If one were to look at Item 13.5 in the document package, this is Response to Information Request and it is HUN 105586.E and it is dated August 18th, 2016. It says:

Sources indicate that Roma in Hungary face discrimination ‘in all fields of life,’ including education, housing, employment, health care and political participation. The Hungarian Ombudsman reports that the”[d]isadvantageous social conditions of Roma is aggravated by discrimination especially in the field of education, health, employment, housing and access to services.” According to their 2016 annual report, the office, of the Ombudsman notes that Roma complainants “most often talk about prejudices present in society, discriminative treatment as well as severe social and accommodation problems.”3 [footnotes omitted]

[6]       It goes on to quote the country reports of the United States State Department of State for 2015 that “states that unemployment rates for Roma are 3-5 times higher than for non-Roma.”4 [footnotes omitted]

[7]       “In addition, 78.1 percent of Roma experienced “severe material deprivation in 2014… “5 and this is in severe contrast to the rest of the population.

[8]       I am also looking at Item 2.1 in the document package which is Hungary: Country Reports on Human Rights Practices, and that’s again the DOS, it’s dated April 23rd, 2018.

According to the EC’s Roma integration indicators scoreboard (2011-16) one-third of Roma lived in households with no toilet, shower or bathroom….

In January the ECHR ruled that police failed to provide adequate protection to two Romani individuals who were attacked with stones and bottles during a demonstration by Jobbik and paramilitary groups in Devecser in 2012 or to conduct a proper investigation of the incident.

In February the Supreme Court ruled that local police in Gyongyospata had discriminated against the local Romani community in 2011 by failing to protect them against harassment by extremist groups.6

[9]       Then going on to Item 2.5, which is a United Nations Human Rights Report, it has:

… stated that in recent years, Roma had increasingly been victims of displays of intolerance, hostility and racially motivated violence.” [It was recommended] inter alia that Hungary take resolute measures to combat all forms of intolerance, including in political discourse and take further steps to effectively prevent, investigate and sanction all forms of discrimination by members of the police force. HHC recommended that Hungary take measures to combat ethnic profiling by the police affecting the Roma7.  [footnotes omitted]

[10]     This speaks to the fact that this young man was continually stopped and asked for identification by the police.

[11]     In Response to Information Request, HUN106145.E, which is 10.1, dated August 17th, 2018, it says;

A 2018 report by the UN Human Rights Committee indicates that in Hungary there is a “prevalence of hate crimes and … hate speech targeting minorities,” including Roma, and states that “police often fail to investigate and prosecute credible claims of hate crimes and criminal hate speech … Minority Rights Group …  reports that Roma face a “continued hostility” from police forces in Hungary, which includes a “failure to protect” them from attacks8. [footnotes omitted]

[12]     It goes on and on.

[13]     I am of the view that the country materials disclose that the Hungarian State does not offer effective protection to the Roma minority from hate crimes.

[14]     One of the other pieces of material cited says that the police have a habit of not citing hate crimes as hate crimes upon the due process, they simply process as ordinary criminal offences.9

[15]     The information I have before me indicates that the Roma are subjected to terrible societal discrimination in Hungary, they are subjected to hate crimes on an ongoing basis, they are subjected to harassment by the police, and the Hungarian State through the police force has totally failed to protect these people and for that reason, the claimant I find to be totally credible.

[16]     The claimant has a claim that he is, among other things, a Convention refugee because of his ethnicity, which is a connection or a nexus to a Convention ground.

[17]     Therefore, I find that the allegations of fact made by the claimant in his oral testimony today and in his written narrative are, on the balance of probabilities, true and for the reasons previously stated, the officials and authorities in his own country have failed to protect him. That in my humble opinion makes him a Convention refugee.

[18]     I find that he is a Convention refugee and his claim is hereby accepted.

———- REASONS CONCLUDED ———-

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC) TB8-04266, received March 5, 2018.
3 Exhibit 3, National Documentation Package (NDP) for Hungary (August 31, 2018), Item 13.5, at pp. 2-3.
4 Ibid., at p. 2.
5 Ibid., at p. 3.
6 Ibid., Item 2.1, at pp. 35-36.
7 Ibid., Item 2.5, at para. 11.
8 Ibid., Item 10.1, at p. 1.
9 Ibid.

Categories
All Countries El Salvador

2019 RLLR 54

Citation: 2019 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2019
Panel: Roslyn Ahara
Counsel for the claimant(s): Penny Yektaeian Guetter
Country: El Salvador
RPD Number: TB8-00970
ATIP Number: A-2020-01274
ATIP Pages: 000100-000103


DECISION

On October 21, 2019 the Refugee Protection Division (RPD) heard the claim of [XXX], who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[1]       MEMBER: [XXX], is a citizen of El Salvador seeking refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       Your allegations are described in detail in your Basis of Claim Form (BOC);2 however, they can be summarized as follows:

[3]       You fear persecution at the hands of the Mara Salvatrucha (MS-13), and you believe that this gang caused the disappearance of your brother in [XXX] 2013. Personally, you believe that you have been threatened if you did not transport drugs on their behalf, and you felt this threat was real, given the fate of your brother.

[4]       You left El Salvador on or about [XXX], 2014, for the United States. You were detained, and made a refugee claim, which was denied, and subsequently the appeal was also denied.

[5]       You have indicated in your testimony today that you were extorted, on a regular basis, approximately six months following the disappearance of your brother in [XXX] 2013.

[6]       Finally, on [XXX], 2014, six to seven members of the MS-13 approached you and asked you to transport drugs inside the [XXX] that you were repairing, and when you refused, they immediately punched and kicked you. In your oral testimony today, you also stated that they threatened that you would suffer the same fate as your brother if you did not comply with their demands.

[7]       At the outset of this hearing, I identified the issues of credibility, generalized risk and state protection. Counsel conceded that there was no nexus.

[8]       On a balance of probabilities, I find that your identity has been established as per your passport.3 In considering your credibility, I did not find any glaring omission or contradictions between your testimony and the evidence contained in your record. I did not find that you attempted to embellish the merits of your claim. In totality, I found you to be a credible witness.

[9]       As I indicated earlier, counsel conceded the issue of nexus. There is much case law in this regard, in terms of criminality by gangs, and the country documentary evidence states that the MS-13 are engaged in economically motivated crimes involving extortion, kidnapping, recruitment of youths to aid their cause. There are a number of cases which support the lack of nexus, but since your counsel has conceded this issue, I will go on to consider the issue of generalized risk.

[10]     In examining generalized risk in this particular case, I must look at whether or not there have been consequences as a result of the initial threats, because extortion on its own would be a generalized risk. I must also look at what factors may move your claim from the category of generalized risk into a personalized risk, in other words as it relates to you.

[11]     You have provided much documentation with respect to what happened in El Salvador, with respect to your brother and your father’s attempt to locate him. Therefore, the motive has been established. As I indicated earlier, it began as extortion, and then the precipitating event which led to your departure was a demand for you to transport drugs.

[12]     This may also be the modus operandi of the MS-13 gang. Given the documentation that you have submitted, I concur that this may well be tied to, and certainly indicates that if you did not comply with the perpetrators’ demands, you could meet the same fate as your brother. Therefore, I find that this event removes you from the generalized risk category, into a personalized risk, because of this consequential and heightened risk.

[13]     The objective evidence is extensive in the National Documentation Package (NDP).4 The MS-13 and the 18th Street Gang (Barrio 18) are violent, armed street gangs involved in drug sales, extortion, arms trafficking, murder for hire, carjacking, and aggravated street crime.

[14]     A report by the International Crisis Group indicates that: “The [MS-13] are both victims of extreme social inequality and the perpetrators of brutal acts of violence.”5

[15]     The murders in El Salvador among the world’s highest rates of homicide,6 the incidents include confrontation with the police, rivalries, score settling, or intimidation carried out by the two outstanding Mara organizations: MS-13 and the Barrio 18.

[16]     I am satisfied that the objective evidence confirms and supports the subjective basis of your fear that you are at risk of harm or death if returned to El Salvador.

[17]     In terms of state protection, you have indicated in your oral testimony about the corruption and the police presence within these gangs. The Immigration and Refugee Board’s NDP indicates that the El Salvadorian authorities are not effective in combating crime.7

[18]     According to the documentary evidence, there have been serious concerns about corruption within the police and judicial systems.8 Therefore, the presumption of state protection is rebutted.

[19]     The United States Department of State’s “El Salvador 2018 Human Rights Report” indicates that: “impunity persisted despite government steps to dismiss and prosecute some [officials] in the security forces, executive branch, and justice system… “9

[20]     The International Crisis Group also indicates that “[c]orruption is prevalent in Salvadoran judicial and security institutions…”10

[21]     Consequently, I conclude that state protection is not adequate.

[22]     Although, not placing the issue of an internal flight alternative (IFA) on the table, in light of the fact that El Salvador is a small country and the Mara Salvatrucha groups operate throughout El Salvador, I do not find a viable IFA in the particular circumstances of your claim.

[23]     I consider that while the average El Salvadorian could be affected by gang related crime, I find that you and your family were singled out.

[24]     Accordingly, for the foregoing reasons, I find that you are a person in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act, and accordingly your claim is accepted.11

———- REASONS CONCLUDED———-

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended [IRPA], sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC), received January 29, 2018.
3 Exhibit 1, Package of information from the referring CBSA/IRCC, received January 29, 2018.
4 Exhibit 4, National Document Package (NDP) for El Salvador (September 30, 2019).
5 Ibid., item 7.8.
6 Ibid., item 9.2.
7 Ibid., item 7.6.
8 Ibid., item 9.2.
9 Ibid., item 2.1, Executive Summary.
10 Ibid., item 9.2.
11 IRPA, supra, footnote 1, section 97(1).

Categories
All Countries India

2019 RLLR 53

Citation: 2019 RLLR 53
Tribunal: Refugee Protection Division
Date of Decision: August 21, 2019
Panel: S. Seevaratnam
Counsel for the claimant(s): Ian D. Hamilton
Country: India
RPD Number: TB7-25565
Associated RPD Number(s): TB7-25583
ATIP Number: A-2020-01274
ATIP Pages: 000089-000099


REASONS FOR DECISION

[1]       The claimants [XXX] and her minor son, [XXX], claim to be citizens of India, and they are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

[2]       The adult claimant, [XXX], alleges that she fears returning to India due to membership in a particular social group, as a lesbian. The minor claimant, [XXX] fears returning to Indian, as a member of a particular social group – family.

[3]       The mother, [XXX], consented to being the designated representative for her minor son, [XXX], for the purposes of the hearing.

[4]       The panel has carefully considered the Chairperson’s Guideline 9: Proceedings Before the Immigration and Refugee Board Involving Sexual Orientation and Gender Identity and Expression (SOGIE),2 prior to assessing the merits of this claim.

[5]       The panel has also carefully considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution prior to assessing the merits of this claim.3

ALLEGATIONS

[6]       The principal claimant testified that her mother deceased when she was a year old and her father was busy working in the fields, so she was raised by her father’s brother and his wife. The claimant testified that she was born with a [XXX], a [XXX]. She explained that she was constantly compared by her aunt to her aunt’s own children, whom she considered to be beautiful, whereas she would call the claimant “ugly.” Furthermore, the aunt would treat her as a servant and keep her busy by making her perform manual labour. This lifelong mistreatment and humiliation led the claimant to attempt suicide at the age of 14 by jumping into a well. She felt isolated and ridiculed. The neighbouring farmers discovered the claimant and saved her.

[7]       The claimant stated that her aunt and uncle sent their children to private schools and she was forced to attend a public school. She befriended a girl named [XXX] ([XXX])4 at school. She stated that [XXX] was in a similar predicament as her and she had a darker complexion. Both the claimant and [XXX] were of the opinion that no man would ever marry them because of their appearances.5 Over time, they formed a good friendship, which led to physical intimacy.

[8]       In grade 11, her relationship with [XXX] was discovered and the claimant was beaten by her father and aunt and her education was prematurely terminated. They arranged a marriage for her which she adamantly opposed. The claimant stated that she was forcibly married at the age of 19 to [XXX],6 who was nine years older than her. She testified that he was a drug addict and alcoholic, and that he was physically and sexually abusive to her. On one occasion, he was so sexually aggressive with the claimant that she started bleeding. She reported the incident as rape to the police and the Inspector of Police asked her to return to her husband and indicated sex was part of marriage.7

[9]       The claimant further explained that she did not enjoy any intimacy with her husband, but he tied her to the bed and frequently forced himself upon her. This led to her unwanted pregnancies. She wanted to terminate her second pregnancy, but the medical staff refused to abort the fetus unless her husband accompanied her to the hospital and consented to the procedure.8 He did not consent and so, she gave birth.

[10]     In [XXX] 2011, her married life of physical and sexual abuse continued and when she continuously attempted to flee her estranged husband’s grip, he forcibly tied her to the bed with a rope and burnt her with a hot rod on five areas of her body.9 The claimant provided photographs of the injuries she sustained and she still bears the physical and psychological scars to this day.10

DETERMINATION

[11]     The panel finds the claimants to be Convention refugees. The panel’s reasons are as follows.

IDENTITY

[12]     In Exhibit 1, the claimants have provided copies of their genuine passports issued by the Republic of India which were initially suspected to be fraudulent but later certified to be true copies by an immigration officer on December 24, 2017.11

[13]     In Exhibit 9, the claimant has provided a copy of the minor claimant’s birth certificate12 her 519 orientation training record,13 and her school transfer certificate issued by the Government of Tamil Nadu.14

[14]     In Exhibit 7,15 the principal claimant has provided copies of her membership documents with the 519 Community Centre, a 519 reference letter, photographs of herself with fellow members of the LGBT community, family photos, photos of her scars, and a letter from her brother, [XXX].

[15]     The panel finds the principal claimant to be a lesbian. The panel further finds both claimants to be nationals of the Republic of India.

CREDIBILITY

[16]     The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado16 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

[17]     The principal claimant was straightforward when responding to all questions. Her responses were consistent with the notes from the refugee examinations conducted on December 24, 2017, and December 27, 2017.17 Her sworn viva voce testimony was consistent with her Basis of Claim form (BOC)18 and narrative, her personal documents,19 and country condition documents.20

[18]     Having considered the totality of the evidence, the panel finds the principal claimant to be a credible and trustworthy witness. Accordingly, both claimants have established their subjective fear.

WELL-FOUNDED FEAR OF PERSECUTION

[19]     The panel has sought guidance from reliable and reputable documentary evidence regarding the current plight of homosexual men in India.

[20]     According to the current United States Department of State’s (DOS) “2018 India Human Rights Report” in the National Documentation Package (NDP):21

On September 6, the Supreme Court decriminalized same-sex relations in a unanimous verdict. Activists welcomed the verdict but stated it was too early to determine how the verdict would translate into social acceptance, including safe and equal opportunities at workspaces and educational institutions.

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons faced physical attacks, rape, and blackmail. LGBTI groups reported they faced widespread societal discrimination and violence, particularly in rural areas…

[21]     In paving the way for the future of the LGBT community, the landmark decision of Navtej Singh Johar v. Union of India suggests the following:22

It is this immense task of combatting the prejudicial attitudes which were encoded in Section 377 which has to continue. Nariman J. was cognisant of this challenge and mandated the Union of lndia to give ‘wide publicity to the judgment’ and conduct ‘sensitisation and awareness training for government officials and in particular police officials in the light of observations contained in the judgement’.

While Nariman J. emphasises the role of the Union government in combating prejudice and stereotypes in accordance with the principles of the judgment, Chandrachud J. issues an important plea to civil society to continue to work to combat prejudices and realise full equality for LGBT persons in line with the mandate of a transformative Constitution.

[22]     A World Bank report “estimates homophobia costs India $31 billion (R455bn) a year due to lower educational achievements, loss of labour productivity and the added costs of providing healthcare to LGBT people who are poor, stressed, suicidal or HIV positive.”23

[23]     The Guardian published an article in March 2019 titled, “‘There are few gay people in India’: stigma lingers despite legal victory,”24 which states the following:25

The stigma still lingers. “In India, it is a case of ethics,” says Sanjay Paswan, a member of the Bihar state council and former Indian federal minister who opposed the decision to lift the gay ban. “[Gay] people are suffering from some psychological weakness or problem or trauma. There are very [few] of them in India… “

The article further states that “[s]ocial acceptance is lagging far behind legal sanctions.”26

[24]     Counsel for the claimant acknowledged that decriminalizing and eradicating section 377 was a milestone for the LGBT community, but he pointed out that section 377 was specifically targeted at gay men. Counsel further explained that the police have numerous other laws which they utilize to charge members of the LGBT such as Anti-beggary laws,27 Nuisance laws,28 and the Immoral Trafficking Prevention Act.29

[25]     A report by the International Commission of Jurists (ICJ) titled “Unnatural Offences: Obstacles to Justice in India Based on Sexual orientation and Gender”, cites the 2015 Report of the Office of the UN High Commissioner for Human Rights, which has noted:30

“Human rights mechanisms continues to emphasize links between criminalization and homophobic and transphobic hate crimes, police abuse, torture, family and community violence and stigmatization, as well as the constraints and criminalization puts on the work of human rights defenders”…

[26]     The documentary evidence highlights the reluctance from many segments of society, including politicians and the police within India, to accept same-sex relationships.

[27]     Accordingly, the panel finds that the claimants are at risk of persecution due to the principal claimant’s membership in a particular social group, as a lesbian, and the minor claimant’s membership in a particular social group, as a family member and the son of a lesbian.

STATE PROTECTION

[28]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.31

[29]     According to the United Kingdom (UK) Home Office report at item 6.6 of the NDP: “If the person’s fear is of ill treatment/persecution at the hands of the state, they will not be able to avail themselves to the protection of the authorities.”32

[30]     The principal claimant testified that she sought police protection when she was raped by her estranged husband and the Inspector of Police asked her to return to him.33 Furthermore, the claimant testified that the police are intolerant towards members of the LGBT community and they have the same biases as the Indian general community. She believes that police protection will not be forthcoming to her as a lesbian and to her minor son, as the child of a lesbian. She further stated that the members of the police force are one of the agents of persecution and they commit violence towards members of the LGBT community. She fears their wrath.

[31]     According an objective and recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board:34

In a February 2017 report on obstacles to justice for sexual minorities in India, the ICJ states the following:

The attitude and behaviour of the police is one of the biggest barriers to queer persons’ access to the justice system in India. Several people spoke to the ICJ bout the violence, abuse and harassment they suffered at the hands of the police. Furthermore, in several cases, the police have refused to file complaints submitted by queer persons owing to bias or stereotypes.

The same source adds that

[q]ueer people’s trust in the police is further eroded by the frequency of their negative interactions with police, for instance, when attempting to register complaints regarding violence and other crimes against them at the hands of private individuals. The police’s refusal to file such complaints has seriously detrimental impact on queer persons’ access to justice and redress.

US Country Reports 2018 states that “[s]ome police committed crimes against LGBTI persons and used the threat of arrest to coerce victims not to report the incidents.” [footnotes omitted]

[32]     In light of the above, “the ICJ is concerned that the police’s negative attitude towards queer people in India puts them at an increased risk of violence from non-State actors as well.”35

[33]     Furthermore, the ICJ finds that “[d]emands for justice and accountability for police abuses have led to direct forms of reprisal by the police against those denouncing their abuses.”36

[34]     In addition, “[s]everal people also told the ICJ that they believed that a lack of willing and experienced lawyers who were sensitive to issues of gender, sexuality, and queer rights in India hindered the possibility of obtaining justice in courts.”37

[35]     Finally, the ICJ report notes that, “there are few legal remedies in the law for the violence and discrimination faced by queer persons. This also makes it difficult to approach the court with cases.”38

[36]     The NDP39 and the documents submitted by the claimants40 make clear that the state is the agent of persecution and, in these particular circumstances, is clear and convincing evidence that the state is unable or unwilling to protect the claimant.

[37]     Accordingly, the panel finds that the claimants have met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

[38]     For the above-mentioned reasons, it is evident that state protection would not be forthcoming for the principal claimant due to her sexual orientation and her minor son.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[39]     The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”41 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.42

[40]     The claimants bear the burden of proof to demonstrate that they would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of India.

[41]     Regarding internal relocation, the UK Home Office report states that “[w]here the person’s fear is of persecution and /or serious harm by the state, they will not be able to relocate to escape that risk.”43

[42]     The UK Office further finds that “India is a vast, diverse, multicultural country, Communities vary considerable not only in size, but also in their religious, ethnic, economic and political composition – and in the extent of their adherence to traditional social and family values.”44

[43]     According to a recent Response to Information Request (RIR) conducted by the Immigration and Refugee Board reports the following:45

India Spend reports that single women have to “depend [on] somebody’s goodwill – in-laws, parents brothers and sisters-in-law” in order to provide for them and their children … [Furthermore,] single women encounter “serious struggles with basic life issues such as getting a flat on rent or being taken seriously as a start-up entrepreneur or getting a business loan or even getting an abortion.” [footnotes omitted]

[44]     The claimant testified that was used as a servant by her aunt and uncle and she was forced to perform menial tasks at home. She further explained that this was an obstacle to completing her homework and she was often punished by her teachers at school. In addition, when her father and aunt discovered her relationship with [XXX], a female school mate, they terminated her education and forced her into a marriage that she vehemently opposed. Thus, given her limited education, her estranged abusive husband, the lack of family support and as a single lesbian mother, the claimant would face a reasonable possibility of persecution from the Indian community and the Indian police, irrespective of where she lived within India. He minor son would also be subjected to ridicule and mistreatment due his relationship to his mother, a lesbian.

[45]     A recent article in the New Yorker titled, “India’s Historic Gay- Rights Ruling and the Slow March of Progress”46 concludes the following:47

A country decolonizes itself slowly. The Supreme Court’s decision on Section 377 snips away one more tether binding India to its colonial past. But the verdict resembles a strong beam of light only because it pierces through the stormy, illiberal weather around it. The other problems besetting India- a hideous right­ wing Hindu nationalism; unpunished violence against minorities and lower castes; political corruption; arrests of civic activists under trumped-up accusations; yawning disparities of wealth; the spoiling, perishing environment – are all homemade. They cannot be blamed on anyone else; that heaviness of responsibility is part of the compact of growing up. For allowing these dysfunctions to flare, and for failing to stamp them out, India will be able to blame no one but herself.

[46]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout the Republic of India. Thus, in the particular circumstances of the claimant, who is a lesbian single mother with a minor son, an internal flight alternative is unavailable.

CONCLUSION

[47]     The panel finds [XXX] and [XXX] to be Convention refugees. They have established that there is a reasonable chance of persecution if they were to return to their country of nationality, India, today.

(signed)           S. Seevaratnam

August 21, 2019

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, sections 96 and 97(1).
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
4 Exhibit 1, Package of information from the referring CBSA/CIC, Refugee Examination conducted on December 27, 2017, p.5, received January 4, 2018.
5 Exhibit 2, Basis of Claim from (BOC), Narrative, para 5, received January 15, 2018.
6 Ibid., response to q.5.
7 Ibid., Narrative, para 9.
8 Ibid., para 11.
9 Ibid., para 13.
10 Exhibit 7, Personal Documents, pp.22-26, received August 9, 2019.
11 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
12 Exhibit 9, Claimants’ Documents, pp.9-10, received August 13, 2019.
13 Ibid., p.1.
14 Ibid., pp.2-4.
15 Exhibit 7, Personal Documents, received August 9, 2019.
16 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
17 Exhibit 1, Package of information from the referring CBSA/CIC, received January 4, 2018.
18 Exhibit 2, BOC, Narrative, received January 15, 2018.
19 Exhibit 7, Personal Documents, received August 9, 2019; Exhibit 9, Claimants’ Documents, received August 13, 2019.
20 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019); and Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019. 
21 Exhibit 4, NDP for India (May 31, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity. 
22 Ibid., item 6.2, Idea of transformative constitutionalism and the way ahead. 
23 Exhibit 8, Human Rights Documentary Evidence, p. 10, received August 9, 2019. 
24 Ibid., pp.43-46. 
25 Ibid., p.44. 
26 Ibid., p.46. 
27 Exhibit 4, National Documentation Package (NDP) for India (May 31, 2019), item 6.3, s.II(A)(ii) -Anti-Beggary laws. 
28 Ibid., Nuisance laws. 
29 Ibid., Immoral Trafficking Prevention Act. 
30 Ibid., Laws regulating the police. 
31 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 
32 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p.10, s.2.5.1. 
33 Exhibit 2, BOC, Narrative, para 9, received January 15, 2018. 
34 Exhibit 4, NDP for India (May 31, 2019), item 6.1, s.3.2. 
35 Ibid., item 6.3, s.III. 
36 Ibid., s.III(B – ii.). 
37 Ibid., s.IV(A). 
38 Ibid., s.IV(D). 
39 Exhibit 4, NDP for India (May 31, 2019). 
40 Exhibit 8, Human Rights Documentary Evidence, received August 9, 2019. 
41 RasaratnamSivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.  
42 ThirunavukkarasuSathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 
43 Exhibit 4, NDP for India (May 31, 2019), item 6.6, p. l 0, s.2.6.1. 
44 Ibid., p.22, s.5.1.1. 
45 Ibid., item 5.11, s.l. 
46 Exhibit 8, Human Rights Documentary Evidence, pp.12-16, received August 9, 2019. 
47 Ibid., pp.15-16. 

Categories
All Countries Lebanon

2019 RLLR 52

Citation: 2019 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: D. Morris, L. Hartslief, J. Kushner
Counsel for the claimant(s): Jasmina Mrkalj-Skelly
Country: Lebanon
RPD Number: TB7-24110
ATIP Number: A-2020-01274
ATIP Pages: 000080-000088


REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, a 74-year-old stateless Palestinian, is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

DETERMINATION

[2]       The panel determines that the claimant is a Convention refugee because she faces a serious possibility of persecution in her country of former habitual residence, Lebanon, due to her membership in a particular social group, namely as the family member of a political opponent of Hezbollah.

ALLEGATIONS

[3]       The allegations respecting the basis of the claimant’s fear in Lebanon are set out in her Basis of Claim (BOC) form.2

[4]       The claimant and several members of her family have been targeted for violence and extortion by armed groups in Lebanon. Most recently, the claimant herself was targeted after her son was kidnapped by Hezbollah after coming into conflict with his wife’s brother, who is a member of Hezbollah. After the claimant attempted to relocate to another part of Lebanon, she was located, threatened and assaulted by members of Hezbollah, who view her and her family as being in opposition to them. Hezbollah view the family as opponents because male members of the family, including her son [XXX], have consistently refused to associate themselves with or otherwise support the group.

[5]       The claimant fears that she will be harmed or killed by Hezbollah if she returns to Lebanon.

ANALYSIS

Identity and Statelessness

[6]       The claimant was born in Palestine in 1945, fled Palestine during the war in 1948 and lived in [XXX] in Lebanon until she fled to Canada in 2017. Though born in Palestine and living for many years in Lebanon, the claimant has no citizenship in any country.

[7]       On a balance of probabilities, the panel finds that the claimant has established that she is a stateless Palestinian whose country of former habitual residence is Lebanon. This is based on her testimony, the testimony of her son [XXX], who appeared as a witness, as well as the claimant’s Lebanon ID Card, Lebanon Travel Document for Palestinian Refugees, Lebanon General Security Travel Document, and her various Canadian Temporary Residence Visas.3

[8]       Based on this evidence, the panel finds on a balance of probabilities that the claimant is not a citizen of any country. Her significant period of de facto residence in Lebanon for more than 70 years leads the panel to the conclusion that her only country of former habitual residence is Lebanon. The panel finds that she does not have a right to return to or obtain citizenship in any other country. The country of reference for this claim is therefore determined to be Lebanon.

Credibility

[9]       The panel had some credibility concerns with respect to certain aspects of the claimant’s testimony. However, in assessing this case the panel was cognizant of the claimant’s advanced age and her limited formal education.4

[10]     The panel’s concerns arose mainly from the claimant’s difficulty in recounting details of incidents set out in her BOC. In testimony, she admitted that her daughter, [XXX] and her son, [XXX] had both been with her while she was completing her BOC and helped her write her narrative.

[11]     A thorough review of the BOC shows that, for the most part, the only incidents in which the claimant was directly involved occurred after her son [XXX] had fled the country. The panel is of the view that, more likely than not, the claimant was assisted to recount stories in her BOC that had occurred to other members of her family (as is clear from the narrative) but of which she had little firsthand knowledge. The panel’s concerns were largely addressed by the testimony of her son [XXX] who was able to recount in greater detail the reasons for his flight from Lebanon and how this situation affected his mother:

The claimant’s son [XXX], who is also a stateless Palestinian, fled Lebanon in 2015 and was recognised as a Convention refugee by the Refugee Protection Division in [XXX] 2017.5 [XXX] testimony and the reasons for his recognition as a Convention refugee in Canada, corroborate the claimant’s story as follows: that [XXX] had come into conflict with Hezbollah and with his ex-wife’s brother, [XXX], who was also a member of Hezbollah;

[XXX] had been kidnapped by Hezbollah outside of Beirut in July of 2015 and suffered fairly severe injuries during his captivity;

After [XXX] departed Lebanon the claimant started to receive threats from the same persons who had kidnapped and threatened him, and;

[XXX] had tried to have a committee from [XXX] intervene on his behalf with Hezbollah but that these efforts were rebuffed by [XXX].

[12]     As stated above, the panel also considered the claimant’s age and educational background in coming to its decision. The panel finds that the claimant tried to be as forthcoming as possible and to recount events to the best of her ability. As it relates to the events that she experienced following her son’s departure from Lebanon, the panel found the claimant to be credible.

[13]     The panel therefore finds that the claimant does have a credible fear of the persons who had attacked her son and that she did start to receive threats after he had finally departed Lebanon.

Re-availment and Delay in Claiming in Canada

[14]     While re-availment or delay may not necessarily be determinative of a particular claim, they might be evidence of a lack of subjective fear on behalf of the claimant.

[15]     The claimant travelled to Canada on three previous occasions prior to her arrival in [XXX] 2017, returning to Lebanon each time. There are copies of Canadian Temporary Resident Visas on record for each of these trips.6 The last of these was between [XXX] 2014 and [XXX] of 2015 with the claimant returning to Lebanon on [XXX] 2015.

[16]     With regard to her previous trips to Canada and return to Lebanon, the claimant testified that it was never her intention to claim refugee status on those trips. The panel finds this consistent with her statements that it was only after [XXX] had finally left Lebanon for good, after being assaulted and tortured by Hezbollah in [XXX] 2015, that the claimant herself came into conflict with a member of Hezbollah and she began to fear for her own safety.

[17]     With regard to her most recent trip to Canada, the claimant delayed in making her claim for approximately [XXX] weeks (she arrived in Canada on [XXX] 2017 and submitted her claim on 3 December 2017). In testimony, the claimant stated that her intention was to return to Lebanon once the situation there had settled. However, while in Canada the claimant was informed by her daughter, [XXX], that the claimant’s home in [XXX] had been taken over by Hezbollah and that Hezbollah continued to seek the claimant out. It was then that the claimant realized it would not be possible for her to return to Lebanon.

[18]     The panel finds that this explanation is reasonable under the circumstances and is consistent with the explanation provided in her BOC.

[19]     The panel therefore finds the claimant’s subjective fear is not impugned by this delay or the fact that she had returned to Lebanon after her previous trips to Canada.

Objective Basis – Country Conditions

[20]     The country conditions outlined in the National Documentation Package (NDP) include reports which speak to the systemic discrimination facing Palestinians who reside in Lebanon, as well as the general security conditions in the country, particularly within the Palestinian camps.7 It shows that Palestinian refugees in Lebanon suffer from severe discrimination and are denied basic civil and political rights, regardless of their long term residence in the country.

[21]     Lebanon is not a signatory to the 1951 Convention or the 1967 protocol and does not recognize the basic rights of people with refugee status.8

[22]     Palestinian refugees who live in Lebanon are denied citizenship rights and are subjected to racism, arbitrary arrest, kidnapping and torture.9

[23]     Human rights abuses persist within the Palestinian camps and in Lebanon in general. These include the arbitrary arrest and detention of Palestinians by autonomous Palestinian security groups.10 The documentation confirms the claimant’s allegation that Hezbollah and other factions extra-judicially arrest and abuse refugees.

Authorities failed to observe many provisions of the law, and government security forces, as well as extralegal armed groups such as Hizballah, continued the practice of extrajudicial arrest and detention, including incommunicado detention.

NGOs reported that most cases involved vulnerable groups such as refugees … 11

[24]     These armed groups operate without the supervision of any official judicial systems.12

[25]     The documentation also supports the claimant’s assertion that her family had tried to resolve their issue with Hezbollah through a committee in [XXX]. The United Nations High Commissioner for Refugees [UNHCR] has reported that:

Palestinian groups in refugee camps operated an autonomous and arbitrary system of justice outside the control of the state. For example, local popular committees in the camps attempted to resolve disputes using tribal methods of reconciliation.13

[26]     The objective evidence therefore corroborates the general elements of the claimant’s allegations, including the impunity with which Hezbollah and other armed groups operate in Lebanon.

[27]     Having considered all of this evidence, the panel finds that the claimant faces more than a mere possibility of persecution based on her membership in a particular social group, namely as the family member of a political opponent of Hezbollah.

State Protection and Internal Flight Alternative

[28]     A state is presumed to be able to provide adequate state protection. To rebut the presumption of state protection, a claimant must provide “clear and convincing evidence.”14   The claimant must establish that state protection in inadequate. If the claimant is able to show the absence of protection anywhere in the country, there will be no internal flight alternative (IFA).

[29]     The claimant’s testimony and the documentary evidence referenced above make it clear that state protection or relocation within Lebanon are not options for the claimant. Severe discrimination against Palestinians is widespread and systematic throughout all the country, particularly outside of the refugee camps.15 The US Department of State notes that, ” … Hizballah, and other extremist elements operated outside the direction or control of government officials.”16

[30]     Within the camps, UNHCR reports that:

Palestinian individuals may reportedly be at risk of being subjected to harassment, threats or abuse at the hands of militant factions in the camps. As the Lebanese authorities have no access to the camps (with the exception of Nahr El-Bared Camp), those at risk can reportedly not seek protection from the Lebanese authorities.17

[31]     This is consistent with the claimant’s statement that she did not seek protection from the authorities because Lebanese authorities are not present in the camps and do not protect the refugees there. The panel therefore concludes that the claimant would not be able to access state protection anywhere in Lebanon.

[32]     With regard to an internal flight alternative, the panel further notes that the claimant did try to relocate from [XXX] to [XXX] and that Hezbollah was able to locate her there.

[33]     The panel therefore finds, on a balance of probabilities, that neither adequate state protection nor an internal flight alternative is available to the claimant.

CONCLUSION

[34]     Having considered the totality of the evidence, based on the foregoing analysis, the panel finds the claimant’s fear of persecution in Lebanon to be well-founded. The panel finds the claimant is a Convention refugee and therefore accepts her claim.

(signed)           D. Morris

Concurred in by:         (signed)           L. Hartslief

                                    (signed)           J. Kushner

May 8, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2
3 Exhibit 1 (Originals are all in the possession of Canadian Immigration authorities).
4 Exhibit 1, Schedule A, question 7.
5 Exhibit 11.
6 Exhibit 1
7 Exhibit 3, National Documentation Package (NDP) for Lebanon (29 March 2019), item 2.1.
8 Ibid., item 13.5.
9 Ibid., item 13.1.
10 Ibid., item 2.1.
11 Ibid., at p. 9.
12 Ibid., item 13.1.
13 Ibid., item 13.2.
14 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85, at pp. 724-726.
15 Exhibit 3, NDP for Lebanon (29 March 2019).
16 Ibid., item 2.1, at p. 1.
17 Ibid., item 13.2, at p. 19.

Categories
All Countries India

2019 RLLR 51

Citation: 2019 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: Milton Israel
Counsel for the claimant(s): Ronald Yacoub
Country: India
RPD Number: TB7-23722
ATIP Number: A-2020-01274
ATIP Pages: 000074-000079


REASONS FOR DECISION

[1]       [XXX], the principal claimant, and [XXX], his wife and the associate claimant, citizens of India, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The Basis of Claim Form (BOC) of the principal claimant (hereafter the claimant) represented both claimants.2

[3]       The claimant alleges in his narrative that he and his wife were threatened and attacked by members of the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist organization that supports the Bharatiya Janata Party (BJP), the ruling party in India.

[4]       The claimant further alleges that RSS members attempted to kill him on [XXX], 2017, as well as a few times earlier. The reason for these attempts was a statement that the claimant made at his Gurdwara, indicating that people should be able to eat any meat they desired, including beef. This was considered to be an insult to Hindus who considered the cow to be holy.

[5]       The claimant received threats from the RSS and went to the police, but received no help. The threats also made an impact on his health, causing [XXX], [XXX], [XXX], and [XXX]. As a result, he and his wife moved to Amritsar, and stayed with his nephew. However, extremists followed him there, and he received a death threat. He went to the police again, but received no help.

[6]       On [XXX], 2017, the claimant and his wife returned to their home in [XXX]. The next day, members of the RSS attacked his home, and the claimant was beaten. On [XXX], the claimant and his wife went to New Delhi, where he received first aid, and on [XXX], they left India and came to Canada.

[7]       On [XXX], 2017, their house was attacked again. The claimant alleges that they assumed he was there, and would have killed him if he had not left India.

THE ISSUE

[8]       The determinative issue in this claim is credibility.

[9]       The panel questioned the claimant concerning his allegations. He was asked how Hindu nationalists heard about his statement as he made it in a Gurdwara. The claimant explained that there was a nearby Hindu temple, and Hindus often came to the Gurdwara.

[10]     The panel noted that the three affidavits he disclosed concerning the incident in the Gurdwara were word for word exactly the same,3 and the claimant was asked how that was possible if they were prepared independently. The claimant explained they were given in Punjabi, and then translated into English. The panel noted the Punjabi originals were not disclosed, and the claimant explained they were prepared for Canada. The panel is not persuaded that the three affidavits were prepared independently, and finds that the word for word replication reduces their evidentiary weight as to the claimant’s allegations.

[11]     The claimant was questioned as to the alleged attempt of the RSS to kill him on [XXX], 2017. He described being dragged out of his house and beaten. The claimant was asked if there was an attempt to kill him, and he testified that they had no knife or gun. He further testified that his wife screamed, and neighbors came and the perpetrators ran away.

[12]     The panel noted that the claimant indicated in his narrative that there were other attempts to kill him, and the claimant was asked to describe those incidents. The claimant testified as to the threats, and his trouble recalling these incidents. The panel notes that no substantive evidence was provided, either in the claimant’s narrative or in testimony, which concerned such alleged incidents. Subsequently, the claimant testified that between 2014, when the Gurdwara incident occurred, and 2017, when his house was attacked, there were only threats.

[13]     The panel noted that the claimant disclosed four affidavits concerning the alleged attack on [XXX], 2017.4 The panel further noted that the four affidavits are exactly the same. The claimant provided the same explanation as in the case of the affidavits concerning the Gurdwara incident. The panel finds, again, that there is a significant doubt that these affidavits were prepared independently, and gives them reduced evidentiary weight.

[14]     The claimant’s son, [XXX], a resident of Canada, appeared as a witness in the hearing. He testified that he visited India, and talked to his parents’ neighbors and officials in the Gurdwara. They confirmed the claimant’s allegations regarding his speech in the Gurdwara, and the attack on his home. He further testified that he visited his parents’ home, and was attempting to repair some broken windows and a door, when he was attacked by two men. He ran to another house, and subsequently received medication and therapy for an injury to his shoulder.

[15]     The witness also testified that his father, who is 70 years old, was being medicated for his diminishing mental abilities, which resulted from the trauma he experienced in India. The panel notes a medical document was disclosed in this regard.5 Moreover, the witness stated that the claimant dictated his narrative to his daughter-in-law, but his mental state was not normal at the time.

[16]     The panel finds that the claimant testified in a straightforward manner. The panel further finds that it has credibility concerns about the affidavits disclosed by the claimant, and the claimant’s allegations about multiple efforts to kill him without evidentiary support. The panel notes that the claimant changed his testimony in this regard in the hearing.

[17]     The panel further finds that while the affidavits have been found to be of reduced evidentiary weight because of the content duplication, their corroboration of the claimant’s allegations is not totally undermined.

[18]     In regard to the panel’s concern about the credibility of some of the claimant’s testimony, it notes that the evidence provided by the claimant’s son and in medical documentation, provides a credible explanation concerning the claimant’s diminished mental condition.

[19]     The panel finds, on a balance of probabilities, that the claimant has been a credible witness as to his allegations concerning his Gurwara remarks, and the resulting attacks by members of the RSS.

[20]     The panel notes that it indicated at the beginning of the hearing that even if the claimant’s allegations concerning his RSS risk are found to be credible, he has an internal flight alternative (IFA) available to him in Mumbai.

[21]     The panel questioned the claimant as to his possible resettlement in Mumbai if he believed he and his wife were unsafe in Punjab. The claimant responded that Sikhs were a minority community, and the RSS was everywhere in India. The panel noted that Sikhs lived in all parts of India, and that there was no constraint on their doing so. The claimant responded that Mumbai was costly, and the panel noted that, like all major cities, there were less expensive communities on the periphery of the expensive center. The claimant further testified that there was a bias in favor of Maharashtrians, but the panel noted that Mumbai remained a cosmopolitan metropolis. The claimant responded that he had lived his life in a small community, and he did not have many more years to live.

[22]     The panel has considered the two prongs of the IFA test, and acknowledges that both prongs must be satisfied for finding that the claimants have an IFA.6 While the panel is satisfied with the requirement of the first prong, that there is no serious possibility of the claimants being persecuted in the part of the country to which it finds an IFA exits, the requirement of the second prong, that the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there, has not been met.

CONCLUSION

[23]     The panel finds, on a balance of probabilities, and in the context of the evidence concerning the claimant’s age and mental health, that an IFA in India is not available to him. The panel further finds, on a balance of probabilities, that the principal claimant and the associate claimant cannot return to India without the risks pursuant to section 97(1) of the IRPA. Therefore, their claims are accepted.

(signed)           Milton Israel

December 11, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC) – TB7-23722.
3 Exhibit 5, Claimant’s Disclosure, at pp. 23, and 28-29.
4 Exhibit 5, Claimant’s Disclosure, at pp. 24-25, 27, and 30.
5 Ibid., at p. 74.
6 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

Categories
All Countries Hungary

2019 RLLR 50

Citation: 2019 RLLR 50
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2019
Panel: S. Eng
Counsel for the claimant(s): John A Salam
Country: Hungary
RPD Number: TB7-23388
Associated RPD Number(s): TB7-23443, TB7-23444, TB7-23445, TB7-23460
ATIP Number: A-2020-01274
ATIP Pages: 000069-000073


DECISION

[1]       MEMBER: This is the decision in the claims of principal claimant [XXX]; her three children [XXX], [XXX] and [XXX]; along with her common-law partner [XXX]; in RPD File Numbers TB7-23388, TB7-23443, TB7-23444, TB7-23445 and TB7-23460.

[2]       The claimants are citizens of Hungary and they are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       The facts and events alleged in support of their claims are set out in their respective Basis of Claim Forms. In summary, the claimants allege persecution in Hungary on the basis of their ethnic Roma identity.

[4]       The panel finds that the claimants are Convention refugees within the meaning of Section 96 of the IRPA.

[5]       The claimants’ identities were established as citizens of Hungary through their passports and the passports which were seized by CBSA. The panel is therefore satisfied that the claimants have met their burden and established their identities.

[6]       Based on its consideration of the totality of the evidence including the claimants’ testimonies, the panel finds on a balance of probabilities that the claimants are ethnic Roma. The principal claimant was the only claimant that testified at the hearing. The panel finds that the claimant testified in a straightforward fashion with regard to the central element of her claim.

[7]       The panel finds that the claimant’s overall testimony was credible and accepts on a balance of probabilities that she has faced discrimination that would rise to the level of persecution and would continue to face a serious possibility of persecution on a forward-looking basis should the claimants return to Hungary.

[8]       In their Basis of Claim Forms and in the principal claimant’s testimony, the claimant provided in detail regarding a number of incidences of discrimination in Hungary which the panel would summarise.

[9]       The claimant has around a grade [XXX] education, which she testified was the result of discriminatory attitudes towards Roma students in school and was not able to continue.

[10]     The claimant testified how her three children also experienced discrimination in school because of their Roma ethnicity. The claimant testified about housing problems in Hungary and visits from the Children’s Aid Society in Hungary. The claimant testified how unpaid debts led to the water and electricity being disconnected to the house and a visit from the Children’s Aid Society over the conditions with her children.

[11]     The claimant had testified how she had moved into this house which was her ex-husband’s around the year 2000. The claimant testified how after the visit from Children’s Aid Society, she moved into a side cabin by her parent’s house and also talked about her divorce from her ex-husband around the same time. The claimant testified about the side cabin not having proper running water or bathroom facilities.

[12]     She indicated how the Children’s Aid Society came to see her again and that she had to move in with the parents of her current common-law partner. The claimant testified how the Children’s Aid Society followed up with another visit and indicated that that house was too small for her and all the children to live in. The claimant described how she tried to find housing to rent but was turned away due to the number of children she had and also because of her Roma ethnicity. Claimant testified about the Children’s Aid Society threatening to take away her children and that being the main reason for fleeing Hungary.

[13]     The claimant also testified about her attempts to obtain employment, but how she was only able to find temporary work under the table because of her Roma identity.

[14]     The claimant spoke about not receiving proper medical treatment and suffering from an infection from a caesarean section delivery.

[15]     The claimant also testified about her common-law partner and her son being attacked by ultranationalist Hungarians by bus stop. The panel found the claimant’s testimonies to be credible and lacking in embellishment.

[16]     The panel did have concerns regarding the claimant’s testimony regarding the auction of her ex­ husband’s house after their divorce, which the claimant would have been entitled to half of the profits of the sale. The claimant testified that she did not know what happened to the house after speaking to the executor and whether it had been auctioned off. The claimant did not follow up again about the matter despite having the phone number and address for the person responsible for this sale, and did not provide any further documentation regarding the proceedings and sale of the house.

[17]     The panel finds the claimant’s testimony regarding the sale not credible as the panel finds the claimant would have sought further information on profits that she would have or might have been able to receive or even to further establish this claim. However, the panel finds that the concerns with the auction or sale of the house do not negate the panel’s other findings where the testimony and evidence were persuasive in showing that the claimants have experienced serious, systemic and repetitive discrimination.

[18]     The panel finds cumulatively that the discrimination the claimants faced including in areas of education, employment, housing and health care, that they have experienced discrimination rising to the level of persecution in Hungary.

[19]     There is also evidence to suggest State protection has not been adequately available to the claimants. The country documentation for Hungary is broadly consistent with what the claimant has indicated will happen to them. The National Documentation Package for Hungary indicates that Roma experienced widespread discrimination in housing, employment, education and treatment and accessing health care. Based on the claimant’s testimony, the panel finds that there has been systematic societal discrimination against the claimants being Roma which affected their access to adequate education, health care and employment.

[20]     Regarding State protection, though Hungary is a functioning democracy and is a member of State of the European Union and though the documentary evidence tells me that Hungary is attempting to make changes to improve the situation for Roma, serious problems remain today.

[21]     Based on these country conditions and based on the claimant’s testimony, which the panel has found to be credible, the panel is satisfied that State protection would neither be adequate or forthcoming. There are multiple instances recorded of Roma individuals seeking protection and being subjected to racist or discriminatory actions by police. The panel finds that claimant’s own actions and failing to seek out State protection are reasonably explained.

[22]     The panel also finds that there is no internal flight alternative available to the claimants as the problems of discrimination and the response by the police and authorities seem to be nationwide.

[23]     Having considered all of the evidence, the panel finds that [XXX], [XXX], [XXX], [XXX] and [XXX] are Convention refugees and have established a serious risk of persecution, and the panel accepts their claim.

[24]     I will now allow the other members to indicate whether or not they concur with the panel’s decision.

[25]     DANIEL MCKEOWN: I concur.

[26]     KATRINA PIKE: I concur, but for slightly different reasons that I will now give.

[27]     Well, I broadly concur with the reasons of my colleagues though different from their finding in one important regard.

[28]     I find that you did not face the issues that you put forward in terms of housing and child protective services before you left Hungary.

[29]     You owned, madam, a home in Hungary. The preponderance of the evidence before me, I find, supports that you continue to live in that home. Your ID documents continue to state that you had that as your address. When you came to Canada, you have listed that as your address, and you provided no documentary evidence to support that you ever lived anywhere else.

[30]     In addition, as noted by my colleagues, you provided one document related to the sale of that home. It showed that the sale did not occur. Despite having the specific contact information for someone intimately involved in that sale, you did not provide any further evidence to support any other aspect of that sale.

[31]     And so on that important point, I do find that the evidence doesn’t support your allegations. However, on a forward-looking basis, I do find that the evidence that you have provided that is credible does support that your housing situation going forward would be precarious given the attempt to sell of the home to recover debt.

[32]     The other evidence you provided today with regard to what you faced as Roma in education and work and with regard to experiencing racist incidents was credible, as it was internally consistent and consistent with the broader country documentation. You are all likely to experience discrimination in housing going forward given the country documentation.

[33]     So, I do agree with the reasons put forward by my colleagues regarding how and why the evidence supports that given what you face upon return to Hungary, you do face persecution, as well as their reasons for why there is no State protection or internal flight alternative available to you.

[34]     MEMBER: Thank you.

[35]     So, that concludes the decision.

———- REASONS CONCLUDED ———-

Categories
All Countries Bangladesh

2019 RLLR 49

Citation: 2019 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: James Waters
Counsel for the claimant(s): Yasmine Abuzgaya
Country: Bangladesh
RPD Number: TB7-22737
ATIP Number: A-2020-01274
ATIP Pages: 000060-000068


REASONS FOR DECISION

[1]       The claimant, [XXX], claims to be a citizen of Bangladesh and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       In assessing her claim, I considered Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[3]       After a brief courtship, the claimant entered into an arranged marriage in Bangladesh with a permanent resident of Canada, in [XXX] 2015.3

[4]       Her husband returned to Canada shortly after the marriage, and in [XXX] of 2016, he submitted an undertaking to sponsor the claimant’s spousal application for permanent residence in Canada.

[5]       Her husband returned to Bangladesh to visit her in the spring of 2016. Problems over dowry issues between the respective families surfaced during this visit, escalating from heated arguments to threats of physical violence.

[6]       The claimant alleges that she was verbally, physically and sexually abused by her husband during this visit.

[7]       The spouses attempted to reconcile, and made a trip together to India in [XXX] of 2016. Her husband returned to Canada at the end of [XXX] of 2016.

[8]       The claimant alleges that she was stalked and threatened by her husband’s family and friends after he returned to Canada.

[9]       The claimant arrived in Canada on [XXX], 2016 with a visa authorizing her to enter Canada, and told the immigration officer she wished to reconcile and reside with her sponsor.

[10]     Her husband was notified of her arrival by an immigration official and attended at the airport, where he advised IRCC that he had withdrawn his undertaking to sponsor her and did not want to reconcile and have her reside with him.

[11]     She made her refugee claim inland on November 3, 2017, after being advised that she was in breach of a condition requiring her to reside with her sponsor. The admissibility hearing was cancelled after she made her refugee claim.

IDENTITY

[12]     The national identity of the claimant as a citizen of Bangladesh was established by her oral testimony in the Bengali language, and the supporting documentation filed.4

[13]     The supporting documentation included copies of her valid passport, birth certificate and school records.5 Originals of the birth certificate and school records produced by the claimant were made available to the RPD prior to the hearing.

[14]     In the statutory declaration the claimant’s sponsor alleged that the claimant had filed a falsified birth certificate as part of her application for permanent residence to conceal that she was born on [XXX], 1998, rather than [XXX], 1997.6 A translated copy of a birth certificate showing the claimant’s birthdate as [XXX], 1998 was attached to the statutory declaration.7

[15]     An affidavit of a lawyer at the [XXX] described the online searches performed by that lawyer to confirm that the [XXX], 1997 birth date in the birth certificate produced by the claimant matched that in the online records searched by the affiant.8 The affiant described the similar searches she conducted, unsuccessfully, on the online registry to verify the [XXX], 1998 birthdate indicated in the copy of a birth certificate produced by the sponsor in his statutory declaration.

[16]     Having regard to the evidence submitted the claimant established on a balance of probabilities that she is the person she says she is, and that she was born on [XXX], 1997.9

[17]     There were discrepancies between the claimant’s consistent oral and written testimony, and the inconsistent information in the spousal Sponsorship Questionnaire.10 as to when the couple met. The claimant explained that she had signed blank spousal sponsorship forms and returned them to her sponsor who hired an immigration consultant to fill them in and submit them.

[18]     There was abundant evidence in the form of a marriage certificate, wedding photographs11 as well as the statutory declaration of her sponsor to establish on a balance of probabilities the marriage ceremony and the registration of the marriage.12

[19]     A copy of a certificate of divorce was sent to IRCC by her sponsor, which indicates that her sponsor divorced her effective [XXX], 2017.13

[20]     A copy of a pending application and supporting affidavit to set aside the divorce judgment, based on improper service of the Petition for Divorce, was filed.14

CREDIBILITY

[21]     The standard of proof for assessing evidence as well as credibility is a balance of probabilities that the evidence is, more likely than not, true.15 When a claimant swears to the truth to certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.16 In assessing the credibility of a claimant, the panel is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.

[22]     The claimant’s oral testimony as to the spousal abuse she suffered at the hands of her former husband was generally consistent with that described in her personal narrative17 and the description contained in a psychological assessment report filed.18

[23]     The claimant was confronted with the fact that her husband was not aware of her travel plans. She testified that she had tried to inform her husband, but he had discontinued contact. She hoped to reconcile with him after coming to Canada.

[24]     The claimant testified that while their relationship had broken down before she came to Canada, neither her husband, nor IRCC had informed her that he had withdrawn or wished to withdraw his sponsorship until after she had arrived in Canada.

[25]     A credibility concern explored at the hearing was why the claimant would chose to reconcile in Canada with an abusive spouse who had assaulted and sexually abused her on his previous trip to Bangladesh, and who apparently did not want her to come to Canada.

[26]     The claimant noted cultural and social mores, as well as family pressures in Bangladesh against a woman leaving a spousal relationship.

[27]     In her written submissions claimant’s counsel submitted that women facing domestic and intimate partner abuse chose to return to the relationship for a variety of cultural, religious and financial realities including fears of increased abuse post separation.19

[28]     The claimant’s counsel cited excerpts from the expert opinion letter of [XXX], outlining a number of factors influencing abused woman to stay in an abusive relationship.20 Claimant’s counsel also cited a Human Rights Watch Report that mentioned financial dependency amongst other factors relevant to abused woman in Bangladesh.21

[29]     The claimant testified as to her father being harassed and threatened in Bangladesh over unresolved dowry issues, and the breakdown of the marriage both before and after she came to Canada. This oral and written testimony was supported by a translated excerpt from a diary provided to the police.22

[30]     An affidavit from a relative in Canada, and a notarized statement and letters from family in Bangladesh and Canada supported her oral and written testimony as to her fear of harm from her husband and his family and friends, if she returned to Bangladesh.23

[31]     Having regard to all of the evidence submitted that did not include the oral testimony of her former spouse, the claimant established on a balance of probabilities, the allegations of verbal, physical, sexual and psychological abuse outlined in her narrative.

Objective Basis

[32]     The documentary evidence indicates that domestic violence is rampant in Bangladesh and that it “occurs for many reasons, most often connected to dowry demands.”24

[33]     The documentary evidence indicates that, in Bangladesh, violence within a relationship is generally seen as private matter, and that there is a general acceptance of violence against women and girls.25 Despite a raft of legislation, enforcement remains weak, and the few offenders who are prosecuted receive minor punishments if any at all.26

[34]     Corruption within the police and judicial system was identified in the United States Department of State Report as a general problem preventing fair trials.27 A United Nations Human Rights report on Bangladesh attributes a lack of faith in the court system and the failure to implement the laws as factors in the continued high incidence of acid attacks, rapes and dowry related violence.28

[35]     The claimant’s former spouse lives in Canada. Articles were filed to support the claimant’s fear of an acid attack if she returned to Bangladesh, from her husband’s family, or his associates who had stalked her while she was living in Bangladesh after her husband returned to Canada.29

[36]     The preponderance of the documentary evidence establishes an objective basis for the claim.

[37]     The claimant testified that her former husband is aware of where her family members live in Chittagong. She established a serious possibility of persecution should she return to there. Her nexus is as a member of a particular social group as a single divorced woman who has been subjected to domestic violence.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[38]     An IFA arises when a claimant who has a well-founded fear of persecution in his or her home area of the country is not a Convention refugee because he or she has an internal flight alternative elsewhere in the country.

[39]     The test to be applied in determining whether there is an IFA is two pronged:

The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.30

Conditions in the part of the country [considered to be an IFA] must be such that it would not be unreasonable, in all the circumstances [including those particular to the claimant] for [her] to seek refuge there.31

[40]     The Federal Court of Appeal sets a very high threshold for the ‘unreasonableness test’, requiring nothing less than the existence of conditions which would jeopardize the life or safety of the claimant. There must be actual and concrete evidence of such conditions.

[41]     Dhaka was identified as a possible internal flight alternative.

[42]     The claimant is a young divorced woman who was not employed while living in Bangladesh. She testified that she would be unable to get a job or housing in Dhaka. She testified that her father is an elderly man with health problems, who lives with a son in Chittagong, on whom he relies for financial and emotional support. She testified that none of her family members had the financial resources to support her relocation anywhere, never mind an expensive city like Dhaka.

[43]     Her counsel submitted that a divorced / single woman like the claimant cannot realistically relocate within Bangladesh due to three reasons:32

1.         an inability to secure housing;

2.         lack of employment opportunities; and

3.         lack of domestic violence shelters and other social services.

[44]     Counsel buttressed her written submission with references to documentary evidence indicating that:33

1.         divorced woman encounter huge difficulties in accessing housing;

2.         a grim employment situation for single and divorced woman;

3.         single and divorced woman, in general are looked down upon by society;

4.         the limited social services available were difficult to access.

[45]     The claimant established on a balance of probabilities that given the circumstances of single divorced woman in Dhaka, together with the particular circumstances of the claimant, it is not reasonable for her to seek refuge there.

CONCLUSION

[46]     I find that [XXX] is a Convention refugee. I therefore accept her claim.

(signed)             James Waters

April 10, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
3 Exhibit 2, Basis of Claim (BOC).
4 Exhibit 9, Package 1; and Exhibit 10, Package I 0.
5 Exhibit 9, Package 1; at pp 1-12.
6 Exhibit 5, SIRU Part 2, at p. 22, para 2.
7 Ibid, at p. 24.
8 Exhibit 9, Package 1, at pp. 13-19.
9 Ibid.; and Exhibit 10, Package 2.

Categories
All Countries Jamaica

2019 RLLR 48

Citation: 2019 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Veda Rangan
Counsel for the claimant(s): Johnson Babalola
Country: Jamaica
RPD Number: TB7-21735
Associated RPD Number: TB7-21736
ATIP Number: A-2020-01274
ATIP Pages: 000055-000059


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claims of [XXX] and [XXX], who claim to be citizens of Jamaica, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

ALLEGATIONS

[2]       You allege the following. In your narrative to the Board, filed with your Basis of Claim (BOC) Form, you state that you grew up in the city of [XXX], Kingston, Jamaica.2 On [XXX], 2017, a resident of [XXX] named [XXX] was murdered. A family friend of yours was questioned by the police as a person of interest. This person, named [XXX], accused you of telling the police that [XXX] was likely a suspect. Angered by the allegations against him, [XXX] sent threatening notes to your family while you were visiting your family in Canada. In addition, [XXX] mother also sent similar message to the you and your family.

[3]       You testified that at no time, did you tell the police that [XXX] could be a suspect. In your narrative, it is stated that “on [XXX], 2017 [XXX] came to my house and showed me a gun and told me that if he ever gets arrested for anything he didn’t do I would pay a price.” In addition, he made veiled threats against your daughter. Some of [XXX] friends told you that they were waiting for an order from [XXX] to “finish her.”

[4]       Fearing for your and your daughter’s safety, you went to stay with a friend in [XXX], St. Catherine. While staying there, [XXX] and his friends visited you. Your friend asked you to leave his premises for the fear that [XXX] would harm him for harbouring you.

[5]       Fearing for your safety, you went to another police jurisdiction to lodge a complaint; however, they asked you to go the [XXX] police. Your brother, a [XXX], told you to leave the country as no one could guarantee your safety. You left for Canada for a short stay, hoping that the matter would settle by the time you return. As a result of further threats from [XXX] and his friends, you remained in Canada and made a claim for refugee protection.

[6]       You and your daughter testified about the incidents in Jamaica as stated above. In addition, you stated that you and [XXX] went to the same school, and that his brother was killed by the rival gang. You also stated that you didn’t want to go back to the same environment.

DETERMINATION

[7]       I find on a balance of probabilities, that you would be subjected personally to a risk to your lives or to a risk of cruel and unusual treatment or punishment, should you return to Jamaica, for the following reasons.

ANALYSIS

Nexus

[8]       I have examined your claims under section 97 as there is no nexus to a section 96 ground.

Credibility

[9]       Based on the documents in the file, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. You had proffered a letter from [XXX], a Justice of Peace, in which he confirms you to be a resident of [XXX], and that the gangs in your vicinity would consistently invade your premises and use your home as a strategic location to attack other gangs. Your roof was often used as a shooting range. He also noted that you had to leave as your life was in danger.

[10]     You had also submitted a letter from [XXX], the person you had stayed with. In his letter, he notes that you and your daughter had stayed with him as you feared harm from the gangs led by [XXX]. After reviewing the documents, I have no reasons to doubt their authenticity.

Nature of the harm

[11]     You were threatened at gun point, and the veiled threats made to your daughter created a fear for her safety as a young female. You also feared harm from the gang as you were threatened at gun point and by his friends. You lived in an environment where gang violence was an everyday occurrence. You had accepted this as a way of life but when the threats became personal, you felt the need to move away from the danger. This harm clearly amounts to a risk to your life and that of your daughter.

State protection

[12]     I find that adequate state protection would not be reasonably forthcoming in this particular case. You had approached the police when the situation turned serious. However, you received no real help from the [XXX] police. Even your brother, a [XXX], was unable to help you. You had no family in Jamaica who could help or support you.

[13]     In the documents provided by you, it states that “residents in [XXX] are so fearful these days, many refused to speak about the mayhem around them. And those who did, ask for their identities to be kept a secret.”3 I have carefully reviewed the documentary evidence and I find that these articles clearly demonstrate that there could be a risk to your life, should you return to Jamaica as you are being perceived as an informer.4

[14]     The Bertlesmann Stiftung’s 2016 report states that: ‘The state’s monopoly on the use of force is established nationwide in principle, but it is challenged by organized criminal gangs or networks in specific areas.’ The challenge does not, however, constitute a major threat at the national level. The specific areas are not whole parishes or regions but depressed inner-city communities, varying in population size from 3,000 to 20,000, where violence is directed not always against the state or the security forces but against rival gangs and those civilians labeled as “informers.”5

[15]     In an article by Amnesty International reported on October 2014, it is stated:

Women and girls living in inner-city communities remain particularly exposed to gang violence. They are often victims of reprisal crimes, including sexual violence, for being perceived as having reported or actually reporting criminal activity to the police, or in relation to a personal or family vendetta.6

[16]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances.

CONCLUSION

[17]     Based on the analysis above, I conclude that you are persons in need of protection. Accordingly, I accept your claims.

(signed)             Veda Rangun

December 2, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim (BOC) Form, TB7-21735.
3 Exhibit 5, Claimant’s Documents, received October 17, 2019.
4 Ibid.
5 Exhibit 3, National Documentation Package (NDP) for Jamaica, (April 30, 2019), item 4.2.
6 Ibid., item 2.2.

Categories
All Countries Hungary

2019 RLLR 47

Citation: 2019 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: March 21, 2019
Panel: B. Popatia
Counsel for the claimant(s): Vanessa M. Leigh
Country: Hungary
RPD Number: TB6-18781
ATIP Number: A-2020-01274
ATIP Pages: 000050-000054


[1]       MEMBER: [XXX] you are a citizen of Hungary who claims Convention refugee status and refugee protection in Canada based on your alleged well-founded fear of persecution in Hungary for Convention reasons and the alleged risk there to your life risk of cruel and unusual treatment, or danger of torture.

[2]       You state that you are at risk of serious harm in Hungary at the hands of various agents of persecution based on your Roma ethnicity, female gender, young age, and family status. You allege that were you to return to Hungary you would continue to experience serious harm without the prospect of effective state protection there.

[3]       I determine you to be a Convention refugee. In my view there has been supplied sufficient reliable evidence on which to find that you have a well-founded fear of persecution in Hungary for Convention reasons.

[4]       It has been established that there is more than a mere possibility that were you to return to Hungary you would experience the serious harm of persecution, either cumulatively or in isolation, harm that would continue to have on you a substantially prejudicial effect, physically or morally.

[5]       I am satisfied that there has been supplied clear and convincing confirmation of the state’s inability or unwillingness to protect you based on your particular circumstances and prevailing country conditions.

Analysis

Identity

[6]       I am satisfied that you have the personal, national, ethnic, gender and other identity alleged in the claim. You came to Canada with family and made a refugee claim within weeks of your arrival. You testified in the Hungarian language through an interpreter at the hearing. You provided extensive oral testimony, written documentation and allegations in an affidavit and in your Basis of Claim form that credibly situates you within a Hungarian context.

[7]       You state that with the exception of a short period of time in Germany to visit a close family member you have lived only in Hungary and Canada. You came to Canada on your own Hungarian travel document that was issued in 2016. A copy of that document is before me and at the Port of Entry and at the time that you made your refugee claim inland, there does not appear to have been any concern about your nationality as a Hungarian citizen. Extensive personal documentation has also been filed from Hungary.

[8]       I’m also satisfied that your Roma background has been established on the balance of probabilities. Here too the testimony and written declarations you have provided situate you within a reliable Roma context.

[9]       You have stated that while you don’t know or understand how and why you were identified as a Roma, you testified that it could be because of your dark or brown skin even though you stated that it is not that brown.  It is clear, however, that you have been closely associated with Roma persons, including close family members and that you have experienced individual and collective mistreatment, likely based on your Roma ethnicity and at times because of that ethnicity and your female gender and young age. You stated that when a close family member was mistreated, it was as if you were being abused.

[10]     You’ve conceded that you did not know the sub-group of Roma that either your mother or father belonged to but stated that they both have Roma background. You also testified that a large number of your family members have come to Canada and somehow or the other have received permanent status in Canada.

[11]     Your claim was made with your father and your elder brother. Your father’s claim was disjoined from yours because you were alleging serious harm in Hungary on grounds beyond your ethnic background and that it could be uncomfortable and difficult for you to participate in your hearing with your father present. That request was granted.

[12]     You testified about your education and stated that you got to grade [XXX] but because you did not complete one of the final exams, that having to do with language and literature, you would be unable to continue your education in Hungary. While this may have limited basis, I do accept that based on your own personal mistreatment over many years throughout grade school, your family economic and social experience, and other factors, it would be impracticable for you to expect that you would be able to continue your education in Hungary, at least at the university level.

[13]     You stated that you believed that your literature teacher was racist and anti-Roma and did not permit you to write the final exam even though a fellow student, a non-Rome was permitted to sit the final exam despite absence for about half the school year.

[14]     When counsel asked you if you had been sexually harassed in Hungary you responded affirmatively. It was deemed unnecessary to have you elaborate on that in oral testimony.

[15]     I have your written declarations and based on my assessment of your credibility, your identity and other aspects of your claim throughout the hearing, I’m satisfied that more likely than not you have had the gender-based mistreatment alleged.

[16]     Your residential identity is also compelling. You testified that on two occasions about a year apart, you, your father and your elder brother were evicted. You testified that your nuclear family has never owned any property in Hungary and that you have only rented accommodation from the city. In your written declarations you have cited at least three or four residential addresses in and around Budapest and you confirmed those street addresses when you gave testimony in the hearing.

[17]     You stated that local authorities relocated you from your rental accommodation, promising to allow you to return once the renovations were concluded, but neither you nor any other Roma family were permitted to go back to that renovated building.

[18]     You were then evicted from the other building that you had been relocated to and at that time you father, having an interest in fishing, lived in a tent with your elder brother beside the lake. You moved in for a period of time with a friend of yours you described as your best friend. You stated spontaneously that this friend was non-Roma.

[19]     You testified that Roma experience mistreatment in the health care system and while your own experience in the health care system appears to have been more positive most times, at least based on your own testimony, you did concede that that would be one of the reasons for you to fear returning to Hungary. If you were able to pay large amounts of money to physicians you would receive medical care but you stated and fear that if you were to return to Hungary based on your age and other circumstances you would not qualify for health and other social benefits.

[20]     You testified about your recreational life, street life, life on the street cars and stated that you had been mistreated by groups of racist men and that among incidents of mistreatment, that you and closely situated persons including family members experienced. Your elder brother was thrown off public transit and suffered a concussion but received no police help.

[21]     You testified that you fear the police themselves, the very agents one could rely on for protection. When asked why you had this fear you stated that they did not provide any material assistance to you or those you knew. On one occasion although a family member of your experienced mistreatment and made a police report, promises to keep you informed were not met by the police.

[22]     Years earlier a close relative experienced serious harm at the hands of her male partner. Despite repeated incidents by him against her, he was given merely a fine for all of that ordeal.

Credibility

[23]     I find that you have been a credible witness in the proceeding. You provided testimony spontaneously, directly and with the ring of truth. At times it contained extensive detail. Your testimony conformed with the written declarations in all material areas of the claim. I find that you did not embellish or exaggerate. These are the hallmarks of reliable testimony in my view.

[24]     You also maintained eye contact consistently and had a somber disposition in the hearing.

Objective basis

[25]     In my view there is a credible objective basis to your allegations. The country conditions documents from wide variety of sources, having no interest in the outcome of your proceeding, indicate that each of the forms of mistreatment you have referred to continues to impact Roma communities in Hungary and that Roma continue to experience serious forms of mistreatment, including discrimination, harassment, humiliation, marginalisation and exclusion in every sector of their civic lives: education, employment, housing, recreation, heath care.

[26]     Sources agree and you also stated in various ways, repeatedly throughout the hearing and in your written claim, that Roma experience serious personal insecurity. This is despite periods of serious efforts by the state to improve conditions for Roma and other national minorities in Hungary and to orient front line police officials and other state authorities on providing improved response and assistance to Roma communities and communities of national minorities in Hungary.

[27]     In view, although you fear serious physical harm were you to return to Hungary, such as from interactions with street groups, it is sufficient that you fear serious discrimination across the sectors of your civic life and there is a reliable objective basis to those fears. These social and economic risks are such that frontline police cannot be expected to provide protection against, and indeed, no state authority can provide immediate response for such conditions. Extensive social and political change would be required for greater security, in your case in particular.

[28]     In my view, were you to return to Hungary, there is more than a mere possibility that you would experience the serious harm of persecution cumulatively. There’s clear and convincing confirmation of the state’s inability or unwillingness to protect you. Accordingly I determine you to be a Convention refugee. The Division therefore accepts your claim.

[29]     That’s it for this hearing. Thank you, Mr. Interpreter.

[30]     INTERPRETER: Thank you.

[31]     MEMBER: Counsel. All the best to you, Ms. XXXX.

[32]     CLAIMANT: Thank you very much.

[33]     MEMBER: Off the record.

– – – DECISION CONCLUDED – – –