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Albania All Countries

2019 RLLR 125

Citation: 2019 RLLR 125
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2019
Panel: E. Joanne Sajtos
Counsel for the Claimant(s): Jeffrey L. Goldman
Country: Albania
RPD Number: TB8-06714
ATIP Number: A-2021-00256
ATIP Pages: 000045-000053


REASONS FOR DECISION

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

ALLEGATIONS

[2]       The claimant’s allegations are set out in his Basis of Claim Form.2

[3]       In summary, the claimant claims that he is a homosexual. His father relocated from Albania to Greece when the claimant was young, and as a result, the claimant was raised by his uncle, [XXX]. The claimant engaged in his first same-sex relationship in 2009. In January 2018, the claimant was in a bar. When he went to the washroom, the bartender, who knew the claimant, picked up the claimant’s phone and saw messages that he had exchanged with his same-sex partner. He was confronted with the messages and told to leave the bar without being given his phone back.

[4]       In February 2018, the claimant’s uncle confronted him about his sexuality, but the claimant denied that he was a homosexual. He was told that if the rumours were true, his uncle would kill him. The claimant, who worked in construction with his uncle, learned that the construction jobs where he had worked were being cancelled based on his homosexuality.

[5]       The claimant travelled through Greece en route to Canada, to live with his cousin, who is also a member of the lesbian, gay, bi-sexual, transgender, queer (LGBTQ) community. Since coming to Canada, the claimant has learned that his uncle, [XXX], has relocated to Greece because of the shame he faced in Albania, given that he has relatives who are homosexual.

DETERMINATION

[6]       The panel finds that the claimant is a Convention refugee because he has established a serious possibility of persecution on account of his membership in a particular social group, namely, homosexuals.

ANALYSIS

[7]       The determinative issues in this case are credibility, state protection, and internal flight alternative.

Identity

[8]       The claimant established his personal identity and Albanian nationality based on a certified true copy of his passport3 and his national identity card.4

Credibility

[9]       Credibility is an issue to be considered in all claims before the Refugee Protection Division. To determine whether a claim is well-founded, the panel must find, on a balance of probabilities, that the evidence is credible and trustworthy. A claimant’s testimony is presumed to be true, unless there are valid reasons to doubt its truthfulness.5 The existence of contradictions, discrepancies, and implausibility in the evidence of a claimant is a well-accepted basis for finding a lack of credibility. The panel can also use common sense when assessing credibility.6

[10]     In determining this claim, the panel has been guided by Guideline 9.7 The purpose of Guideline 98 is to promote greater understanding in cases that involve sexual orientation and gender identity and expression (SOGIE) and of the harm that individuals may face because of their non-conformity with socially-accepted SOGIE norms. This Guideline addresses the particular challenges that individuals with diverse SOGIE may face when presenting their cases before the Refugee Protection Division and it establishes guiding principles for decision-makers who adjudicate cases involving SOGIE.

[11]     The claimant and his witness testified in a straightforward manner, and there were no relevant inconsistencies in their testimony or contradictions between their oral testimony and the written evidence, which were not satisfactorily explained.

[12]     According to the claimant, he was able to successfully hide his homosexuality until January 2018 when a bartender in his community discovered messages on his phone that referred to a same-sex relationship in which he was engaged. The bartender told other members of the community, and the claimant was confronted by his uncle, who was also his employer. A threat to his life was made and the claimant, who recognized that his life was in danger, immediately left his home and stayed in a hotel for two days before travelling to Greece en route to Canada. He was also threatened by his father, who has a history of being violent towards his family members. A witness, who is the claimant’s current partner, testified to knowing about some of the hardships that the claimant endured with his family and his fear for his safety in Albania. The panel is satisfied that the claimant received death threats from his family members, including messages posted on his Facebook page after he had arrived in Canada, which resulted in him fearing for his safety.

[13]     The claimant is no longer in communication with his immediate family members with the exception of one of his brothers, who remains in Albania. His other family members refuse to speak to him because of his sexuality. According to his brother, his uncle, [XXX], left Albania because of the shame he feels given that he has homosexual relatives. The claimant, however, continues to fear that his uncle may return to Albania, and he feels that his uncle’s anger will have been further fueled by his shame and “honour”. When questioned as to why he did not report his uncle to the police, the claimant testified that he has a friend who is a police officer. The officer told the claimant that the police would probably assault a member of the LGBTQ community as opposed to protecting him. The evidence was that members of the LGBTQ community are perceived in Albania as being sick, or that they should be killed because of the way that they affect other people. Given the claimant’s quick exit from Albania following the threat he received from his uncle, and the fact that he left all of his possessions behind with the exception of a few clothes, the panel is satisfied that his actions were those of someone who is fearful for his safety.

[14]     By way of affirmation of the claimant’s homosexual status, he testified to participating in the Toronto LGBTQ community. He presented receipts9 from bars that he attends in the “gay village.” The claimant’s current same-sex partner testified to the claimant’s personal likes and habits, which were entirely consistent with the claimant’s testimony. In addition, correspondence provided from the 519 Community Centre,10 indicates that the claimant had participated in two programs there, one of which is a support group for LGBTQ refugee claimants. Based on the combination of the written and the oral evidence, the panel is satisfied that the claimant is a homosexual and that he is an active participant in the LGBTQ community in Toronto.

[15]     Based on the totality of the evidence, the claimant has established that he has a well­ founded fear of persecution should he return to Albania, based on his sexuality.

State protection

[16]     With respect to state protection, the panel must consider whether there is adequate state protection in Albania, whether the claimant took all reasonable steps to avail himself of that protection, and whether there is clear and convincing evidence of the state’s inability to offer adequate state protection.

[17]     States are presumed to be capable of protecting their citizens, except in situations where a state is in complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking the ineffective protection of a state, merely to demonstrate that ineffectiveness.11

[18]     A guarantee of protection for all citizens at all times is not to be expected. Nor is perfect protection. Where a state is in effective control of its territory, has military, police, and civil authorities in place, and it makes serious efforts to protect its citizens, the mere fact that it is not always successful will not justify a claim that the state is not providing protection.12 To require full effectiveness of foreign police and judicial systems would be to insist on a standard for other states which we, in Canada, are not always able to achieve ourselves.13 Further, it is not enough for there to be an existing relevant legislative or procedural framework for protection if the police or other authorities are not able or willing to effectively implement those protective provisions.14

[19]     The United States Department of State report for Albania, which is dated March 13, 2019,15 indicates that Albania is a parliamentary democracy. In June 2017, the country held parliamentary elections that the Organization for Security and Cooperation in Europe (OSCE) reported respected fundamental freedoms but were marred by allegations of vote buying and pressure on voters.16 Human rights issues included pervasive corruption in all branches of government.

[20]     The report further notes that although Albanian law prohibits discrimination based on sexual orientation, enforcement of the law was weak. Despite sexual orientation and gender identity being protected by hate-crime law, public officials sometimes made homophobic statements.17 Social and traditional media have criticized a recent anti-bullying  campaign and accused the LGBTI community of attempting to influence young people inappropriately.18 In 2017, police requested that a transgender woman withdraw her complaint of having suffered physical violence.19 Two weeks later, she was attacked by the same perpetrator and sent to the hospital.20 As of August 2017, the Commission for Protection against Discrimination (CPD) received two complaints alleging discrimination based on sexual orientation. The CPD ruled against the complainants in both cases.21

[21]     In a report entitled Being LGBTI in Eastern Europe: Albania Country Report, which is dated November 28, 2017,22 it was noted that Albania has adopted a National Action Plan 2016- 2020 for protecting and advancing LGBTI rights. During the course of his testimony, the claimant stated that because Albania wants to join the European Union, it has attempted to create an appearance of LGBTQ rights that is not based on the reality of the conditions faced by LGBTQ people in Albania. His testimony was corroborated by the authors of the above referenced report, who note that:

… These achievements in policy and legislation have led to a contradictory situation combining an outward appearance of legal protection and higher visibility of LGBTI people with hostility and discrimination still prevalent within key institutions…..23

Although the institutional environment is changing in positive ways, the effects of legal and policy improvements are not yet visible, because they are not being applied in practice. The lack of enactment of legal and institutional measures shows that the government has endorsed its responsibility to protect the rights of LGBTI people more to satisfy the demands of the international community – and in order to meet the requirements for EU membership in particular- rather than as a civil duty towards LGBTI citizens.24

[22]     The report states that rigid gender stereotypes and cultural expectations mean that men and women are expected to conform to rather inflexible concepts of masculinity and femininity in their behaviour and appearance in Albania. To deviate from these binary gender stereotypes is considered by some to be morally wrong. As a patriarchal society, there are high levels of social disapproval for any form of sexuality that falls outside heterosexual norms. Surveys have found that Albanians hold very negative perceptions of LGBTI people.25 A community may be unaware of a difficult family situation that involves LGBTI people. Parents of LGBTI people tend to keep their children’s sexuality secret to avoid “losing their honour”, and they often force their children to suppress their LGBTI identity. Sometimes families break off relations with the LGBTI person, or they force them to move away from home. Physical violence is considered to be an effective form of discipline and it is pervasive.26 In Albania, the perception that LGBTI people are sick and in need of a medical cure for their sexuality is very widespread among both the general public and health professionals.27 Due to the widespread prejudice and homophobia, most LGBTI people live in secrecy.28

[23]     The panel notes that the claimant’s testimony as to the lack of availability of state protection and the conditions in Albania is entirely consistent with the country condition documentation.

[24]     In view of the above analysis, the panel finds that the claimant has provided clear and convincing evidence that, on a balance of probabilities, state protection is inadequate. Thus, he has rebutted the presumption of state protection.

Internal flight alternative

[25]     The panel has considered whether a viable internal flight alternative exists for the claimant. Based on the totality of the evidence, the panel finds that there is a serious possibility of persecution throughout Albania. As noted in Being LGBTI in Eastern Europe: Albania Country Report:29

Deep-rooted prejudices among the majority of the population and a lack of awareness on the part of state officials impede the effective application of legislation and prevent its further improvement. They continue to experience a lack of support and violence from their families, neighbourhoods, political and religious leaders, law enforcement officials, employers, and health and education service providers.30

Thus, the panel is satisfied that the claimant would suffer a well-founded fear of persecution in all parts of Albania.

CONCLUSION

[26]     Based on the totality of the evidence, the panel concludes that the claimant is a Convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act.31 Therefore, the claim for refugee protection is allowed.

(signed)           E. Joanne Sajtos

June 25, 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 Form.
3 Exhibit 1, Package of information from the referring CBSA/CIC.
4 Ibid.
5 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.).
6 Shahamati, Hasan v. M.E.I. (F.C.A. # A-388-92), Pratte, Hugessen,McDonald, March 24, 1994.
7 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.
8 Ibid.
9 Exhibit 8, Claimant’s personal documents, at pp. 12-18.
10 Ibid., at pp. 1-2.
11 Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) I, 20 Imm. L.R. (2d) 85.
12 Villafranca: M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Marceau, Hugessen, Decary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), at para 7.
13 Samuel, Julia Vanessa v. M.C.I. (F.C., no. IMM-5175-07), Lagacé, June 18, 2008, 2008 FC 762, at para 13.
14 Elcock (Milkson), Joan Theresa v. M.C.I. (F.C.T.D., no. IMM-2985-98), Gibson, September 20, 1999, at para 15.
15 Exhibit 3, National Documentation Package (NDP) for Albania (March 29, 2019), item 2.1.
16 Ibid., item 2.1, at Executive Summary.
17 Ibid., item 2.1, at s. 6.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Ibid., item 6.5.
23 Ibid., item 6.5, at Key Findings.
24 Ibid., item 6.5, at s. 5.1.
25 Ibid., item 6.5, at s. 4.1.
26 Ibid.
27 Ibid.
28 Ibid., item 6.5, at s. 4.5.
29 Ibid., item 6.5.
30 Ibid., item 6.5, at s. 5.1.
31 Immigration and Refugee Protection Act, supra, footnote 1, s. 96.

Categories
All Countries Peru

2019 RLLR 124

Citation: 2019 RLLR 124
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: S. Seevaratnam
Counsel for the Claimant(s): Richard M. Addinall
Country: Peru
RPD Number: TB7-25047
ATIP Number: A-2021-00256
ATIP Pages: 000034-000044


REASONS FOR DECISION

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

[2]       The claimant alleges that he fears returning to Peru due to his membership in a particular social group, as a homosexual man.

[3]       The panel has carefully considered the Chairperson’s Guideline Number 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity Expression (SOGIE Guidelines)2 prior to assessing the merits of this claim.

ALLEGATIONS

[4]       The details of the allegations are outlined in the claimant’s Basis of Claim (BOC) Form.3 A synopsis of the allegations is as follows.

[5]       The claimant is a gay man, who was born and raised in Trujillo, Peru. The claimant testified that he realized at the age of 8 that he was attracted to boys. He had his first same-sex encounter with his classmate, [XXX],4 when he was 16 and had his first relationship when he was 18 with [XXX].5 The claimant explained that he was in love with [XXX], but two years into their relationship, [XXX] began to assault and humiliate the claimant in front of his friends. He became verbally and physically abusive. The claimant explained that when he threatened to terminate their relationship, [XXX] promised to change, but his violent behaviour continued.

[6]       The claimant testified that, at age 20, while he was intoxicated, he had a sexual relationship with a woman named [XXX]. It resulted in a pregnancy and the birth of their son, [XXX].6 The claimant explained that he was prohibited from having any contact with their son when he disclosed to [XXX] that he was gay, as she did not want their son to know that his father is gay. She wanted the claimant completely out of both their lives.

[7]       The claimant testified that on September 23, 2010, [XXX] pleaded with him to join him for dinner and the claimant accepted, in hope that the issues between them could be resolved and the violent behaviour would be terminated. After dinner, the claimant was driven by [XXX] to his home. At [XXX] home, there were two men there that the claimant did not recognize. [XXX] and the two men beat the claimant and sexually assaulted him. He was stripped naked and forcibly confined to a room, where he was locked for a week and mistreated. On September 30, 2010, the claimant managed to escape through the window and attempted to file a report with the San Juan de Lurigancho police.7 The police, upon discovering the claimant to be a gay man, punched him, insulted him and called his a “rosquete,” a derogatory expression for a gay person in Peru.8 The police threatened to “disappear” him and remarked that “all rosquetes should die.”9 They spat on his face and demanded he leave. The claimant testified that he was frightened by the police. The claimant further explained that he went to the hospital, seeking medical treatment, and he was denied any access to medical assistance due to his sexual orientation.

[8]       On May 12, 2011, the claimant testified that [XXX] came to his family home and physically assaulted him and threatened his father. Both the claimant and his father went to the police station to file a report and the police ridiculed his father for bringing a “daughter” into the world.10

[9]       Fearing further reprisals by [XXX] against his family, the claimant permanently left his family home and tried to hide from his assailant by moving to different states within Peru.11

[10]     On March 3, 2013, [XXX] approached the claimant in Ayacucho and injured him by hitting him on the head with a hammer,12 causing the claimant to lose consciousness.

[11]     On November 28, 2015, [XXX] approached the claimant in Pucallpa and hit him on the forehead with a gun. The claimant fell on the street. He feared that he was going to be shot by [XXX] and screamed for help. [XXX] fled and the claimant was assisted by two women who took him to the hospital. The claimant received medical attention and made a police report.13

[12]     On April 1, 2017, the claimant was forcibly removed by three men from his uncle’s home, who punched him and hit him with the butt of a gun. The claimant recognized two of the men from the incident on September 23, 2010, at [XXX] home. The claimant stated that he was fearful for his life and resisted, but he was overpowered by the three men. They dragged the claimant to the car where [XXX] was seated. The men placed a plastic bag on his head and forcibly tied his hands and legs. After a long journey by car, he was taken to a room and savagely beaten and raped. They forced a piece of wood into his anus.14 The claimant lost consciousness.15

[13]     The claimant testified that he gained consciousness at the hospital and he was informed by the attending nurse that he was found naked near the recycling garbage bin, by workers who thought he was dead. He was brought for medical attention when they discovered he was still breathing and the treating physician contacted the police and a medical report and a police report were made.16 The claimant testified that the police stated that they would pursue [XXX] but they failed. [XXX] continued to threaten the claimant by telephone. He stated that he is now HIV positive. He does not know whether he was infected by [XXX] or his three friends.

[14]     The claimant testified that [XXX] is a [XXX]. His family owns and operates three [XXX] in different regions in Peru, such as San Juan del Lurigancho and Santa Anita. The claimant further testified that the police are homophobic and susceptible to bribery and corruption. He believes that [XXX] is able to locate the claimant, through financial rewards to the police, who would know his location through his national identity card.

[15]     The claimant relocated to several different states in Peru and he was always discovered by [XXX]. He stated that there is a societal stigma against homosexuality and the police and members of the community are homophobic; thus, he is vulnerable as a homosexual man with HIV. He further stated that there is no safe place for him within Peru. Therefore, fearing for his life, the claimant fled Peru and sought protection in Canada.

DETERMINATION

[16]     The panel finds the claimant to be a Convention refugee. The panel’s reasons are as follows.

IDENTITY

[17]     In Exhibit 1,17 the claimant has provided a copy of his National Identity Card issued by the Republic of Peru and certified to be a true copy on December 16, 2017.

[18]     In Exhibit 7, the claimant has submitted a copy of his passport issued by the Republic of Peru.18

[19]     In Exhibit 5, the claimant has provided a copy of his Birth Certificate which indicates that he was born at Central Hospital no. I, in the District Council of La Victoria, in the province of Lima and the Republic of Peru, to parents who are both nationals of Peru.19

[20]     In Exhibit 6, the claimant has provided photographs with his friends from the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community20. Furthermore, the Immigration Referral Form, certified to be true on December 18, 2017, by the Canada Border Services Agency (CBSA) officer in Exhibit 1,21 indicates that the claimant is HIV positive. The claimant was referred for medical treatment by the CBSA through the Interim Federal Health Program, and it was provided.22

[21]     The panel finds the claimant to be a HIV positive, gay man who is a national of Peru.

CREDIBILITY

[22]     The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado23 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.

[23]     The claimant responded to all questions posed by the panel and his counsel, clearly and directly. His testimony was straightforward. His responses were consistent with his Basis of Claim Form (BOC),24 the medical report,25 the police report,26 photographs,27 and affidavit.28

[24]     The panel finds the claimant to be a credible and trustworthy witness. Accordingly, the claimant has established his subjective fear.

WELL-FOUNDED FEAR OF PERSECUTION

Objective Fear – Sexual Orientation and HIV positive

[25]     Counsel for the claimant, in his oral submissions, indicated that the claimant is vulnerable to persecution based on three factors: (i) the claimant is a homosexual; (ii) he has been pursued by [XXX], his assailant, for almost a decade; and (iii) the claimant is HIV positive.

[26]     The United States Department of State’s (DOS) “Peru 2018 Human Rights Report” indicates as follows:29

Government officials, NGOs [non-governmental organizations], journalists, and civil society leaders reported widespread official and societal discrimination against LGBTI [lesbian, gay, bisexual, transgender, intersex] persons in employment, housing, education, and health care on the basis of their sexual orientation or gender identity. NGOs continued to report that law enforcement authorities repeatedly failed to protect, and on occasion violated, the rights of the LGBTI citizens…

[27]     The DOS report further states that “[p]ersons with HIV/AIDS faced discrimination and harassment, including societal discrimination for employment, housing, and general social inclusion.”30

[28]     The 2017/2018 Amnesty International Report indicates that “Peru continued to lack specific legislation recognizing and protecting the rights of LGBTI people, who continued to face discrimination and violence based on their sexual orientation or gender identity.”31

[29]     The claimant testified that he has been bullied in school by his peers for “being homosexual.”32 His family blamed his misfortune on his sexual orientation, and the police told the claimant that he and other members of the LGBT community deserve to die.33

[30]     The claimant explained that he was in love with [XXX] and he initially considered him to be his partner for about two years, until he became physically violent and psychologically abusive towards him. The claimant testified that [XXX] vehemently pursued him for over a decade, since his male, “macho” ego was bruised that “a faggot would leave him.” The claimant believes that out of revenge, [XXX] actively engaged in violent acts such as severe beatings, hitting his head with a hammer,34 hitting his head with the butt of a gun,35 and heinous crimes including gang rape and threatening the claimant with death.36 Despite this atrocious and odious victimization, the police turned a blind eye; this indicates that homosexuality carries a strong social stigma in Peru.

[31]     The medical report for the claimant dated April 15, 2017, from Emergency Services at the San Jose Del Callao Hospital corroborates the claimant’s allegations of gang rape and severe abuse.37 The report by the treating physician-surgeon, Dr [XXX] indicates that the claimant suffered: “Peri-anal rectum tear caused by a great degree of violence. Uncontrollable hemorrhaging due to tear or rupture of the rectal anal walls. Presence of peri-anal retraction type hemorrhaging, ecchymosis, swelling, edema on the right external side and the thighs of both legs.”38 The physician-surgeon also referred the claimant to be “sent to the Psychology Department for trauma due to physical and sexual attack.”39

[32]     The Human Rights Watch report found that according to a March 2018 Peru’s National Institute of Statistics survey, “over 60 percent of LGBT people surveyed had suffered some type of discrimination or violence.”40

[33]     The panel finds that if the claimant were to return to Peru, he would be susceptible to continued abuse and even death, at the hands of [XXX] and that the police will be complicit in this violence, due to their homophobic attitudes towards the claimant’s sexual orientation.

[34]     The panel finds that the claimant has established his objective basis for his well-founded fear of persecution.

STATE PROTECTION

[35]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.41 To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.42

[36]     The claimant testified that state protection would not be forthcoming because his agent of persecution, [XXX], has the financial resources to bribe and influence the police. The police threatened to make him “disappear.”43 He fears returning to the police because he would be further victimized by the police, who are homophobic. The claimant further testified that he is disadvantaged as a HIV positive, homosexual man.

[37]     A report by an NGO on the violence and discrimination against LGBT persons in Peru, found that during the period of 2015 and 2016, “there were cases of discrimination perpetrated by police officers and municipal security agents in public places, in order to expel non-heterosexual couples and repress their display of affection…”44

[38]     The 2019 Freedom in the World Report for Peru indicates that “[g]overnment corruption remains a critical problem in Peru, though law enforcement authorities frequently investigate and prosecute corruption allegations.”45

[39]     The report further states that “a Peruvian market research company, found that 94 percent of the respondents viewed corruption as being widespread in Peru, and 82 percent believe it had increased in the last five years.”46

[40]     On the issue of the application of the rule oflaw, the report found that “[t]he judiciary is perceived as one of the most corrupt institutions in the country. In July 2018, secretly recorded tapes revealed five judges trading reduced sentences or judicial appointments in exchange for bribes.”47

[41]     In addition, the report found that “[c]onstitutional guarantees of due process are unevenly upheld. Lawyers provided to indigent defendants are often poorly trained.”48

[42]     The current NDP49 provides clear and convincing evidence that homosexuality is heavily stigmatized in Peru and the police are among the agents of persecution. Thus, in these circumstances, the state is unable or unwilling to protect the claimant.

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

INTERNAL FLIGHT ALTERNATIVE (IFA)

[44]     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”50 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.51

[45]     The claimant bears the burden of proof to demonstrate that he 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 Peru.

[46]     The claimant testified that after [XXX] threatened his father in their family home,52 he left his hometown of Lima and relocated to different areas including Trujillo,53 Ayacucho,54 Pucallpa,55 and El Callao.56 The claimant further testified that [XXX] had approached his friends in Lima, in search of him and offering money as compensation.57

[47]     The claimant made a valiant effort to relocate to different regions within Peru and he was discovered and brutally assaulted on each occasion, leaving the claimant seriously injured requiring medical attention. The claimant attempted to make police reports in the different regions and the police ignored his concerns, and ridiculed and humiliated him for his sexual orientation.

[48]     The panel finds that the claimant, as a homosexual man, would be vulnerable to persecution throughout Peru where homosexuality is condemned by society and the police.

[49]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout Peru. Thus, in the particular circumstances of the claimant, who is a homosexual man, an internal flight alternative is unavailable.

CONCLUSION

[50]     For the above reasons, the panel finds [XXX] to be a Convention refugee. The claimant has established that there is a reasonable chance of persecution due to his membership in a particular social group, as a homosexual man, if he were to return to Peru today.

(signed)           S. Seevaratnam

December 13, 2019

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 9: Proceedings Before the IRE 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 Exhibit 2, Basis of Claim Form (BOC), Narrative, received December 28, 2017.
4 Ibid., Narrative, lines 9-10.
5 Ibid., lines 11-15.
6 Ibid., response to q.5.
7 Ibid., Narrative, lines 28-30.
8 Ibid., lines 30-33.
9 Ibid., lines 31-33.
10 Ibid., lines 44-46.
11 Ibid., line 48.
12 Ibid., lines 49-51.
13 Ibid., lines 52-57.
14 Exhibit 5, Corroborative Documents, pp.12-14, received November 25, 2019.
15 Exhibit 2, BOC, Narrative, lines 61-70, received December 28, 2017.
16 Exhibit 5, Corroborative Documents, pp.8-14, received November 25, 2019.
17 Exhibit 1, Package of information from the referring CBSA/CIC, received December 22, 2017.
18 Exhibit 7, Claimant’s Passport.
19 Exhibit 5, Corroborative Documents, pp.1-5, received November 25, 2019.
20 Exhibit 6, Photographs, received November 25, 2019.
21 Exhibit 1, Package of information from the referring CBSA/CIC, received December 22, 2017.
22 Ibid., Interim Federal Health Certificate of Eligibility.
23 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.).
24 Exhibits 2, BOC, received December 28, 2017.
25 Exhibit 5, Corroborative Documents, pp.12-14, received November 25, 2019.
26 Ibid., pp.8-11.
27 Exhibit 6, Photographs, received November 25, 2019.
28 Exhibit 5, Corroborative Documents, pp.6-7, received November 25, 2019.
29 Exhibit 3, National Documentation Package (NDP) for Peru (August 30, 2019), item 2.1, s.6 – Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity.
30 Ibid., s.6 – HIV and AIDS Social Stigma.
31 Ibid., item 2.2, Rights of lesbian, gay, bisexual, transgender and intersex people.
32 Exhibit 5, Corroborative Documents, pp.6-7, received November 25, 2019.
33 Exhibit 2, BOC, Narrative, lines 31-32, received December 28, 2017.
34 Ibid., lines 49-51.
35 Ibid., lines 52-57.
36 Ibid., lines 61-70.
37 Exhibit 5, Corroborative Documents, pp.11-14, received November 25, 2019.
38 Ibid., p.13.
39 Ibid.
40 Exhibit 3, NDP for Peru (August 30, 2019), item 2.3, Sexual Orientation and Gender Identity.
41 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
42 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38.
43 Exhibit 2, BOC, Narrative, lines 30-33, received December 28, 2017.
44 Exhibit 3, NDP for Peru (August 30, 2019), item 6.2.
45 Ibid., item 2.4, s.C2.
46 Ibid.
47 Ibid., s.F1.
48 Ibid., s.F2.
49 Exhibit 3, NDP for Peru (August 30, 2019).
50 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] I F.C. 706 (C.A.), at para 9.
51 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November I 0, 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.).
52 Exhibit 2, BOC, Narrative, lines 39-46, received December 28, 2017.
53 Ibid., lines 47-48.
54 Ibid., lines 49-51.
55 Ibid., lines 52-57.
56 Ibid., lines 61-70.
57 Ibid., lines 58-60.

Categories
All Countries Russia

2019 RLLR 123

Citation: 2019 RLLR 123
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Z. Kaderali
Counsel for the Claimant(s): Stephen B Watt
Country: Russia
RPD Number: TB7-20928
ATIP Number: A-2021-00256
ATIP Pages: 000030-000033


REASONS FOR DECISION

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

ALLEGATIONS

[2]       The details of the alleged circumstances are found in the claimant’s Basis of Claim (BOC) form and updated narrative.2 The claimant is a 33 year old male, and a citizen of Russia. He indicates that he fears return to Russia on the grounds of his sexual orientation. He indicates that he met his partner in March 2015, and they were married in Canada in December 2017. The claimant advises that he made an asylum claim in the United States in June 2016, and came to Canada on [XXX] 2017.

DETERMINATION

[3]       The panel finds the claimant is a Convention refugee pursuant to section 96 of the IRPA, on the grounds of his sexual orientation. In coming to this determination, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.3

ANALYSIS

Identity

[4]       The claimant’s identity has been established through a copy of his passport found in Exhibit 1.4 The panel is satisfied, on a balance of probabilities, that the claimant is who he says he is, and is a citizen of Russia.

Credibility & well-founded fear

[5]       Assessed in totality, the panel found the claimant to be a credible witness who testified in a straightforward manner. Looking at the totality of the evidence the panel finds there is sufficient credible and trustworthy evidence establishing that the claimant is a gay man, on a balance of probabilities. In coming to this determination, the panel has considered the following. As the Court explained in Maldonado, the sworn testimony of the claimant is presumed to be true unless a valid reason exists to doubt its truthfulness.5 He testified to his relationship with his spouse, who also attended the hearing, and provided testimony. Several corroborative documents are found in Exhibits 6 and 7 including (but not limited to) a letter from the claimant’s spouse, the claimant’s US asylum application, and his marriage license.6 The panel has further reviewed the US biometrics which were returned with “no match”.7 In light of the documentation before the panel including the claimant’s US asylum application, the panel places little weight on the biometrics. The panel has reviewed the two letters from the claimant’s US counsel indicating his written request made by his US counsel on his behalf to withdraw his US asylum application8. The panel finds, on a balance of probabilities, that the claimant currently does not have permanent residence in the United States, and that exclusion under article 1E of the United Nations Convention Relating to the Status of Refugees (article lE) is not an issue in these particular circumstances.

[6]       Objectively, as indicated in item 2.1 of the National Documentation Package (NDP) for Russia, “[o]penly gay men were particular targets of societal violence, and police often failed to respond adequately to such incidents.” Further, “LGBTI persons reported significant societal stigma and discrimination, which some attributed to official promotion of intolerance and homophobia.”9 The panel finds there is a serious possibility of persecution should the claimant return to Russia.

State protection and internal flight alternative

[7]       The panel finds state protection would not be reasonably forthcoming in the claimant’s circumstances. As indicated in item 6.1 of the NDP, sources indicate that “police officers are not trained on LGBT issues and “most of them have the same stereotypes about LGBT people as the majority of the Russian citizens” (23 Oct. 2013). Further, as indicated in item 6.7 of the NDP, “[d]iscrimination against the LGBT community in Russia is widespread and severe, including by the authorities.”10 The panel finds that there is not a viable internal flight alternative, and that these conditions exist throughout Russia.

CONCLUSION

[8]       The panel concludes that the claimant is a Convention refugee and accepts his claim.

(signed)           Z. Kaderali

April 26, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Exhibit 2, Basis of Claim Form (BOC) TB7-20928; Exhibit 4, Narrative (45 paragraphs).
3 Chairperson’s Guideline 9: Proceedings Before the IRE Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Effective May 1, 2017.
4 Exhibit 1, Package of Information from the referring CBSA/CIC.
5 Maldonado v. Canada (Minister of Employment and Immigration), (1980)] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
6 Exhibit 6, Claimant’s Documentary Disclosure; Exhibit 7, Marriage certificate.
7 Exhibit 5, US Biometrics no match.
8 Exhibit 8, Letters from US counsel (added post-hearing).
9 Exhibit 3, National Documentation Package (NDP) for Russia – January 31, 2019 Version.
10 Ibid., item 6.1 and 6.7.

Categories
All Countries Cameroon

2019 RLLR 122

Citation: 2019 RLLR 122
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2019
Panel: R. Jackson
Counsel for the Claimant(s): Solomon Orjiwuru
Country: Cameroon
RPD Number: TB7-12430
ATIP Number: A-2021-00256
ATIP Pages: 000026-000029


DECISION

[1]       MEMBER: This is the decision of [XXX], who claims to be a citizen of Cameroon and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The panel finds the claimant is a Convention Refugee on the grounds of his membership in a particular social group, that of bisexual man in Cameroon, for the following reasons.

[3]       In rendering its reasons, the panel has considered the Chairperson’s Guideline Number 9 proceedings before the Immigration and Refugee Board of Canada involving sexual orientation and gender identity and expression.

[4]       The claimant has alleged that he identifies as bisexual. He alleges he has had a few same-sex relationships in Cameroon. He was married to a woman in Canada and they have divorced because she discovered that he had been carrying on a same-sex relationship in Canada.

[5]       He claimed refugee protection as he cannot live openly as a bisexual in Cameroon and fears persecution, arrest and discrimination at the hands of the family of his ex-wife, the community and the government due to his sexual orientation.

[6]       The claimant’s identity as a national of Cameroon is established by his testimony and the supporting documentation filed including a certified true copy of his passport in Exhibit 1.

[7]       His identity as a bisexual is established by his credible testimony and the supporting documentation filed including a letter from the claimant’s mother, a copy of her identity card, a letter from the claimant’s former landlord as well as the claimant’s divorce documents, wherein his sexual orientation is discussed. The supporting documentation does not establish the claimant’s sexual orientation all by itself, but it does support his allegations in that regard.

[8]       The claimant’s testimony regarding his sexual orientation was believable including how he described his relationships with his same-sex partners in Cameroon and in Canada.

[9]       The panel accepts that the claimant is bisexual because, in that regard, his testimony was coherent, spontaneous and he generally provided a sufficient level of detail when explaining his same-sex relationships with men. For these reasons, the panel finds that he has established his identity as a bisexual man on a balance of probabilities.

[10]     The panel also finds that his allegations are supported by the country documentation, which is found at the National Documentation Package for Cameroon, Items 2.1, 6.1, 6.4 and 6.6, which indicate that consensual same-sex sexual activity is illegal and punishable by a prison sentence of 6 months to 5 years and a fine.

[11]     Cameroon prosecutes people for consensual same-sex conduct more aggressively than almost any country in the world. Cameroon’s anti-homosexuality law is easily subject to abuse and can be used by virtually anyone as a method of settling scores.

[12]     It is also a recipe for extortion. There are numerous examples of sexual minorities who were arrested or who were victims of violence, similarly grave violations of human rights because of a person’s real or perceived sexual orientation has become common in Cameroon.

[13]     The climate in that country is marked by pervasive homophobia. Ordinary citizens often express extreme hatred towards LGBT individuals. In Cameroon, it is common to link homosexuality to witchcraft.

[14]     Given the claimant’s credible testimony, the objective country condition evidence and the supporting documents the claimant filed, the panel finds that the claimant would face a serious possibility of persecution in Cameroon based on his sexual orientation.

[15]     Based on his personal circumstances, the panel finds that it would be objectively unreasonable for him to seek the protection of the State, and in any event the State protection would not be reasonably forthcoming; the police are one of the agents of persecution.

[16]     It is very clear from the objective documentation that there is no State protection available to sexual minorities in Cameroon, same-sex acts are illegal in Cameroon and the NDP indicates that police do arrest people for engaging in consensual same-sex sexual activity.

[17]     A report by the Finnish Immigration Service at Item 6.4 states that when LGBTI people seek protection from abuse in their communities, police officers fail to protect these individuals.

[18]     Police officers not only discriminate against LGBTI individuals, but also engage in harassment and violence against them. The threat of arrest for homosexual conduct can deter LGBTI individuals from reporting crimes committed against them, and those committing the abuse have done so with impunity.

[19]     Given the documentary evidence, the panel finds there is clear and convincing evidence that adequate State protection is not available to the claimant.

[20]     The panel has considered whether a viable internal flight alternative exists for the claimant. On the evidence before the panel, there is a serious possibility of persecution throughout Cameroon.

[21]     Given that homophobia is widespread in Cameroon, the homosexual acts are illegal throughout all of Cameroon and there is no State protection throughout the whole of Cameroon, the panel finds there is no place the claimant could go in Cameroon where he could live openly as a bisexual man. For these reasons, the panel finds there is no viable internal flight alternative for him.

[22]     So, in conclusion, the panel finds that he is a Convention refugee and therefore accepts his claim.

[23]     This hearing is now concluded. So, thank you both for your participation today.

[24]     COUNSEL: Thank you so much.

[25]     CLAIMANT: Thank you.

[26]     MEMBER: You’re welcome.

———- REASONS CONCLUDED ———-

Categories
All Countries Cameroon

2019 RLLR 121

Citation: 2019 RLLR 121
Tribunal: Refugee Protection Division
Date of Decision: August 19, 2019
Panel: W. Short
Counsel for the Claimant(s): Pablo Andres Irribarra Valdes
Country: Cameroon
RPD Number: TB7-23504
ATIP Number: A-2021-00256
ATIP Pages: 000023-000025


DECISION

[1]       MEMBER: This is my decision with respect to the claim of [XXX]. This is a 22-year-old man who is a citizen of Cameroon and he claims to be a Convention Refugee or a person in need of protection pursuant to the provisions of Section 96 and Subsection 97.1 of the Immigration and Refugee Protection Act.

[2]       The claimant alleges that should he return to Cameroon he would be in danger of his life and safety because of his sexual orientation as a gay man.

[3]       The claimant alleges that he became aware of his sexuality at around the age of 15 when he discovered while participating in sports he was much more attracted to his fellow male players and he was not attracted at all to females.

[4]       His problems became manifest when he was caught having an affair according to his evidence with a student teacher. He has also given oral evidence today as to how he was attacked by a mob and was rescued by the police but he was also arrested and he was put in hospital and the police checked on him every day.

[5]       He has testified to the fact that he has a couple of friends, male friends in Canada and I am satisfied on the balance of probabilities that the individual is a gay man.

[6]       I noticed that he arrived in Canada on [XXX], 2017 but did not claim refugee protection until two months later. When he was in Canada at first he was on a student visa.

[7]       Now, the student visa had been illegally obtained but I still take the approach that since it would have been difficult for the authorities to have deported the claimant during those two months he should be forgiven for the delay. He also said that he did not realize that he would apply immediately for refugee protection but was advised so by the gay help group, 519.

[8]       Therefore, I have determined that should the claimant return to Cameroon he would face more than a mere possibility of persecution on account of his sexuality which is a connection to one of the five grounds which define a Convention Refugee.

[9]       I am looking at Item 6.1 of the National Documentation Package. This is response to information request by this board and it is CMR106270.FE, it is dated May 8, 2019 and it says according to sources homosexual acts are illegal in Cameroon and the Penal Code provides for up to five years in prison for sexual activity with a same-sex partner.

[10]     Sources report that the section of the law penalizing homosexuality was retained during a reform of the Penal Code adopted in 2016. The Penal Code provides that whoever has sexual relations with a person of the same sex shall be punished by imprisonment from six months to five years and to a fine. Sources report that sexual minorities are subject to arrest and prosecution.

[11]     Cameroon prosecutes people with consensual same-sex conduct more aggressively than almost any other country in the word this report says; quoting an NGO. According to sources arrests and prosecution are based on suspicion rather than evidence and the Cameroonian authorities are in the main (inaudible) sexual gender and minorities instead of performing their function of protecting their citizens.

[12]     Not only that but the claimant’s testimony indicates that the attitude of the populous at large is very, very homophobic and it would be dangerous for him to be exposed to these individuals and he could expect no help whatsoever or protection from the police.

[13]     For these reasons I believe that the claimant has made out his case.

[14]     I find that he therefore is a Convention Refugee and his claim for refugee protection is accepted.

[15]     This oral decision will be transcribed into writing and it may be edited for grammar and syntax and we are now off the record.

———- REASONS CONCLUDED ———-

Categories
All Countries Venezuela

2019 RLLR 120

Citation: 2019 RLLR 120
Tribunal: Refugee Protection Division
Date of Decision: October 16, 2019
Panel: R. Andrachuk
Counsel for the Claimant(s): Maureen Silcoff
Country: Venezuela
RPD Number: TB7-22939
ATIP Number: A-2021-00256
ATIP Pages: 000004-000008


DECISION

[1]       MEMBER: Mr. [XXX], I have considered all your evidence, your documentary evidence and your evidence and I am ready to render my decision orally.

[2]       You, Mr. [XXX], claim to be a citizen on Venezuela and you seek refugee protection pursuant to Sections 96 and Section 97 (1) of the Immigration and Refugee Protection Act.

[3]       And, in considering your claim for protection, I have considered the Chairperson’s Guidelines, Guideline Number 9, on proceeding before the IRB involving sexual orientation and gender identity and expression.

[4]       In regard to your identity as a citizen of Venezuela, I find that I am satisfied that you are a citizen of Venezuela and I am most satisfied with your personal identity based on the certified copy of your passport the original of which is being held by the CBSA.

[5]       The details of your allegations appear in your Basis of Claim Form and in your oral testimony. The main allegations are that you are afraid to return to your country of nationality Venezuela because you fear persecution based on your sexual orientation of being a homosexual.

[6]       You claim that you are a gay and you’ve known of your sexual orientation, you’ve known that you were different from childhood and knew about your sexual orientation from above the age of 13.

[7]       You didn’t appear to have experienced serious persecution, discrimination or persecution in Venezuela basically because you didn’t live openly as a gay man.

[8]       The only people that you came out to were apparently at the age of 15 when you admitted that you are a gay too, two of your best friends who were also gay and a year before coming to Canada you told your mother about your sexual orientation.

[9]       However, many people suspected that you are a gay because of the way you acted first as a child playing with girls mainly and later on for a variety of reasons they suspected that you were not heterosexual and you experienced a lot of verbal harassment.

[10]     However, you were able to attend school and complete university and there were no physical attacks on you except once in grade 6.

[11]     However, when you had a relationship with your boyfriend [XXX] which began when you were 17 and which lasted until you came to Canada there were two occasions when you were stopped or when you were accosted by police because in the first occasion you were kissing in the car and the police basically extorted a camera and a computer from you for releasing you. Otherwise, they would have caused you problems because of public demonstration of sexual behaviour or alleged public demonstrations of sexual behaviour and there was a second time when the policemen also accosted you and extorted money from you.

[12]     Since coming to Canada you have come out of the closet and lived openly as a gay man. You believe that if you return to Venezuela or you fear that if you return to Venezuela that you will face a serious possibility of persecution because of your sexual orientation and if you were to live there openly as a gay man.

[13]     My determination is that you are a Convention refugee for the following reasons:

[14]     In regard to credibility I find that your testimony was internally consistent with the other evidence that you presented, in particular the documentary evidence that you presented as well is also consistent with the documentary evidence and country conditions.

[15]     In fact, your homosexual orientation and the rest of your allegation are corroborated by documents in Exhibit 4 which you provided in support of your claim and I have no reason to discount them, as well as you presented a persuasive psychological report in Exhibit 6.

[16]     You also presented evidence from your boyfriend, your former boyfriend in Venezuela, and also letters from your current boyfriend in Canada, [XXX] (ph). I note that [XXX] (ph) was listed as a witness and appeared here today ready to testify on your behalf.

[17]     I therefore find that you are a credible witness and I find that you have established that you are a gay and I find on the balance of probabilities the rest of your allegations are also true.

[18]     I also find that you have established that you continue to, that live a gay lifestyle in Canada and that you are involved in LGBTQ activities. The documentary evidence before me and country conditions establish that Venezuela is a seriously dangerous place for LGBTQ persons.

[19]     I note particularly the RIR from 2014 which is reprinted in the Exhibit, in the current NDP Package in Exhibit 3, referenced in Exhibit 3.

[20]     I did note one concern which is the delay in claiming but I accept your explanation as to why you didn’t make an immediate refugee claim when you came to Canada.

[21]     For you to be found a refugee you must demonstrate that there is a serious possibility of persecution if you return to a country of origin as well as that there is no, that you wouldn’t receive adequate State protection there.

[22]     In considering your prospective return to Venezuela, I have taken into consider your personal profile and your particular situation at the present time, also taking into consideration the objective evidence regarding the current situation in Venezuela particularly for homosexual men in Exhibit 3 which is the National Documentation Package, I note that Tabs 2.1, 2.4, 2.8, 6.1 and 6.2, I find that your allegations are consistent with the objective evidence on the file which confirms that there is a violence and discrimination against the LGBTQ community in Venezuela, and that members of sexual minorities in Venezuela are subject to social stigma, prejudice, acts of violence, discrimination, exclusion, threats and ill treatment.

[23]     They are also subject to discrimination when they seek healthcare in the field of employment and in public places.

[24]     Although I do note that there is evidence that there is certain gay infrastructure in Venezuela; however, the objective evidence also indicates that there is no general openness about demonstrating a person’s sexual orientation in public if that person is homosexual.

[25]     I also note that homosexuality is not illegal in Venezuela. However, there is no specific law which protects against crimes based on sexual orientation or sexual identity although everyone according to the law is to be treated equally no matter what their sexual identity.

[26]     There is, as I said equality before the law for all persons and the law prohibits discrimination based on sex or social condition, but the law does not explicitly prohibit discrimination based on sexual orientation or gender identity.

[27]     And, there is evidence that the Supreme Court ruling in Venezuela states that no individual may be discriminated against because of sexual orientation has rarely been enforced.

[28]     Considering the entirety of the evidence I find that the treatments suffered by the persons of the LGBT community in Venezuela may constitute persecution.

[29]     As your counsel pointed out, in your particular case your occupation makes you more visible to the public and therefore would attract more notice for you as a gay man and then may lead to more discrimination and persecution.

[30]     You are not expected to hide your sexual orientation in order to ensure your safety and security. And, I find that based on the objective evidence, it demonstrates that if you, that you may suffer discrimination, violence amounting to persecution if you were to live as openly as a gay man.

[31]     Therefore I conclude that you have met your burden of proof and have demonstrated that you face a serious possibility of persecution based on a Convention ground if you return to Venezuela which is a membership in a particular social group, persons who fear discrimination persecution based on their sexual orientation or gender identity.

[32]     I find that there is not adequate State protection for you in Venezuela. In coming to this conclusion I have taken into consideration of your personal profile and your particular situation at this time.

[33]     Also the interaction you experienced on two occasions with the police indicates that you yourself already found that the police themselves are involved in some cases in persecuting LGBTQ minority and therefore it would be difficult to expect they would also provide protection for you.

[34]     As indicated, the reports indicate that although discrimination based on sexual orientation is barred, LGBTQ community members faced widespread discrimination and are occasionally subjected to violence.

[35]     So, therefore considering the entirety of the evidence, I find that there is clear and convincing evidence that at this time that Venezuelan authorities are unable or unwilling to provide you with adequate protection and therefore I find that the presumption of State protection has been rebutted in your particular circumstances.

[36]     So, considering your personal situation and the current situation for the LGBT community in Venezuela, I find that there is a serious possibility of persecution for you throughout the country of Venezuela.

[37]     In conclusion, based on all these reasons, I conclude that you are a Convention refugee and the Refugee Protection Division accepts your claim. Congratulations, and I hope you lead a happy life in Canada.

[38]     CLAIMANT: Thank you so much. Thank you.

[39]     COUNSEL: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Iran

2019 RLLR 119

Citation: 2019 RLLR 119
Tribunal: Refugee Protection Division
Date of Decision: May 16, 2019
Panel: I. Singh
Counsel for the Claimant(s): Brian Ibrahim Cintosun
Country: Iran
RPD Number: TB9-01998
ATIP Number: A-2021-00256
ATIP Pages: 000001-000003


[1]       MEMBER: I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. I would like to add that written reasons will be issued, and the written form of these reasons may be edited for spelling, syntax, and grammar, and references to the applicable case law and documentary evidence may also be included.

[2]       You, the Claimant, [XXX] you claim to be a male citizen of Iran, and you are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Determination: I find that you are a Convention refugee for the following reasons:

[4]       I find that you have established a serious possibility of persecution based upon the Convention ground of membership in a particular social group based on your sexual orientation as a gay man.

[5]       Allegations: Your allegations are contained in your Basis of Claim form, and I won’t repeat them all here, but in summary, you allege the following:

[6]       You fear returning to Iran because you identify as a gay man, which is illegal in Iran.

[7]       Analysis/Identity: Your identity as a national of Iran is established by your testimony and a certified true copy of your Iranian passport found in Exhibit 1.

[8]       Credibility: Although I had some minor credibility concerns with your testimony, overall, I have found you to be a credible witness on a balance of probabilities and therefore believe what you have alleged in support of your claim. You testified in a straightforward manner without embellishment and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me that were not satisfactorily explained.

[9]       Well-founded fear, state protection, and internal flight alternative: As it relates to the well-foundedness of your fear of persecution, I find that your subjective fear has an objective basis based on the objective documentary evidence before me. In the National Documentation Package, which is Exhibit 3, it confirms that same sex acts are criminalized in Iran, and gay men who are arrested are reported to suffer a range of human rights violations in detention, which range from harassment to physical torture. The test in assessing your risk of harm is forward-looking. You testified credibly about your fears regarding returning to Iran and the treatment you would receive. Your testimony was consistent with the country conditions in Iran, as reported in the documentary evidence. Thus, there is an objective basis to support your fears based upon your sexual orientation.

[10]     So having considered all this evidence before me, and your testimony which I believe to be credible on a balance of probabilities, I find that your fear of persecution is well-founded and you face a serious possibility of persecution in Iran due to your sexual orientation. Given that it’s the Iranian Government and authorities that you fear, I find it would be objectively unreasonable for you to seek the protection of the Iranian Government in light of your particular circumstances. I also find that you face a serious possibility of persecution throughout Iran, given that the documentary evidence shows the state authorities operate similarly throughout Iran. Therefore, I do not find that you have a viable internal flight alternative within Iran.

[11]     Conclusion: I conclude that you are a Convention refugee, and I therefore accept your claim.

[12]     And that concludes the decision and the hearing.

— DECISION CONCLUDED

Categories
All Countries Somalia

2019 RLLR 118

Citation: 2019 RLLR 118
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: Isis van Loon
Country: Somalia
RPD Number: VB8-04737
ATIP Number: A-2020-01459
ATIP Pages: 000233-000241


— DECISION AND REASONS BY THE MEMBER

[1]       PRESIDING MEMBER: [XXX], the claimant, seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines On Women Refugee Claimants Fearing Gender-related Persecution. I have also considered the claimant’s level of education and life experiences.

Allegations

[3]       The claimant was married by her father’s arrangement to the son of a [XXX] in Korlari (ph) in December of 2016. She was about 16 years old when this marriage was arranged. Her husband was abusive and on April 7th of 2018 while they visited her parents’ house an al-Shabaab raid on the home took her father and her husband and the al­ Shabaab later killed them.

[4]       After this her father-in-law attempted to force the claimant to marry his other son. As a minority clan member, she had no protection from this and she fled the country with the assistance of her family. If she returns to Somalia, her father-in-law will find her and force her to marry his other son who she fears will also abuse her.

[5]       I find that the claimant is a Convention refugee as she’s established a well-founded fear of persecution based on a Convention ground.

[6]       In terms of identity, the claimant does not have a passport or a birth certificate. She spoke Somali as would be expected of a person of Somali origin. She provided a number of documents to support her identity. Exhibit 4, page 2 is a letter from the Manitoba Somali Association and it describes the lengths that they went to confirm her membership in the minority Shanshee (ph) clan as well as her origins in the Qoryoley town area in Somalia.

[7]       This Manitoba Somali Association described interviewing a Mr. [XXX] (ph) who had known her family in Somalia and they lived in the same area. The committee compared notes on this interview with Mr. [XXX] and with responses to questions they’d asked the claimant, found them consistent. They also interviewed other Somalis from the same area with respect to descriptions and landmarks. Based on all their research they were able to confirm the claimant is a Shanshee clan member and a citizen of Somalia.

[8]       At Exhibit 4, page 3, the Winnipeg Somali Community president confirms that elders also interviewed the claimant and found she had knowledge consistent with a Shanshee person from Qoryoley.

[9]       Exhibit 4, page 8 is a statement from [XXX] himself who also became a witness to this hearing. He testified that he lived in the same neighbourhood and that he’d known her parents better than her but he knew her briefly when he was a child and she was a child.

[10]     He testified that he was from Qoryoley and he remembered the parents a little because he’d left when he was young and he did confirm that she was of the minority clan Shanshee.

[11]     Exhibit 4, page 5 is from the claimant’s mother who provided an affidavit from an advocate in Nairobi dated July 9th of 2019 and her affidavit confirmed that her daughter was of the Shanshee clan.

[12]     The claimant said that she didn’t have any identity documents because she was from a minority clan and it was very difficult to get documents in Somalia, particularly with respect to being a minority clan as what documents that you were able to get was pretty much controlled by the majority clans and that if anything is to be issued, it’s a very long process and she didn’t have much time. She needed to leave the country in a hurry.

[13]     The country documents state consistently that record-keeping where it exists is poor in Somalia. The Executive Director of the Somali Canadian Association of Etobicoke in the NDP 3.9 actually stated that due to the civil war all personal records had been destroyed. Seen in this light, the claimant’s lack of formal identity documents appears consistent with country conditions.

[14]     It’s pretty easy in Somalia, according to the country documents, to obtain fraudulent passports and fraudulent identity cards so the fact that the claimant has neither a passport nor any other identification card is not necessarily detrimental to her claim.

[15]     Based on the evidence before me, I am satisfied on a balance of probabilities that the claimant is who she says she is and that she is a member of the Shanshee minority clan and a citizen of Somalia.

Credibility

[16]     When a claimant swears to the truthfulness of certain facts, there is a presumption that what the claimant has said is true unless there is sufficient reason to doubt its truthfulness. The presumption before me is that your testimony is true; however, this could be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions and undetailed testimony.

[17]     That was not the case here. In this case, the claimant was straightforward and forthcoming. She provided detailed testimony on many aspects of her life and experiences and why she had to leave Somalia.

[18]     There were no relevant inconsistencies in her testimony or contradictions between her testimony and other evidence before me.  She didn’t seem to embellish events and actions even when it could have appeared favourable to her claim.

[19]     I found her to be a credible witness and therefore I believe what she has alleged in support of her claim.

[20]     As well she provided a number of relevant and probative documents. As previously discussed, there were statements verifying her identity in Exhibit 4. As well, Exhibit 4, page 8 was the witness statement which confirmed the forced marriages and some of the risks that minority clan members face.

[21]     As well, her uncle and her mother both verified in their affidavits that the father-in-law had been trying to force the claimant to marry the brother of her deceased husband and both of them, I note, have now escaped to Kenya as a result of the claimant’s actions it became dangerous for them to remain as the majority clan had insisted that the claimant stay and get married. When she didn’t do that it put her family at risk and they fled to Kenya.

[22]     So I found these documents were relevant and helpful in confirming and corroborating the claimant’s documents and testimony.

[23]     In terms of a nexus, I found the persecution that the claimant faces has a nexus to one of the Convention grounds, that of membership in a particular social group as a woman, as well specifically she is a minority clan woman and she’s at risk of forced marriage and, in fact, has already experienced that one time.

[24]     Therefore, I have assessed this claim under section 96.

Well-founded fear

[25]     In order to be considered a Convention refugee, a claimant must demonstrate that they have a well-founded fear of persecution.  This includes a subjective basis and an objective basis for this fear and I note also that it must be forward-looking.

[26]     Based on the claimant’s testimony, supporting documents, the witness testimony, the country condition documents, I find the claimant has a well-founded fear of persecution for the following reasons.

[27]     In terms of the subjective basis, her abusive husband was killed by al-Shabaab around the 18th of April, 2018.  Shortly after this, her father-in-law demanded that she marry his other son who she had seen was equally abusive. Shortly after that, she fled to Mogadishu, hiding while she was making arrangements to leave. She left the country on [XXX] for Ethiopia initially, stayed there until [XXX] of 2018 under the advice of an agent who she’d employed to assist her.

[28]     She left Ethiopia and arrived in Toronto on [XXX], 2018 and from there drove to Winnipeg and claimed asylum, signing her Basis of Claim form on the 28th of August of 2018.

[29]     I find the claimant has adduced sufficient credible evidence by her testimony as well as by her actions to establish a subjective fear of persecution in Somalia.

[30]     I asked the claimant what made her leave the country and she said that she’d explained to her uncle that she did not want to marry the brother of her husband. Her uncle told her that if she refused they would be killed together.

[31]     I asked her then, so why did you go and she said: I felt that he could torture, or abuse or beat me – referring to this brother – and I was escaping to avoid this. She said very clearly, I wasn’t going to undergo a forced marriage.

[32]     She told me that a female is always the victim and that if you were in the minority and you were a female you are even more at risk.  She described her life in Somalia, how she’d been forced to marry at about age 16, the abuse that she’d endured and that she had no recourse but to suffer this abuse.

[33]     She spoke of her escape and what she did staying under the radar while she was in Mogadishu and her efforts to find a way out of the country.

[34]     The witness offered testimony and he described the situation in Somalia for women with an experience that he had had, where a sister-in-law had been married to his cousin. Now, the witness was also from a minority clan, a different one from the claimant but he was from a minority clan. He said that majority clan people came and took the sister-in-law by force from her cousin, to whom she was married, and they married her to one of their members. After the sister-in-law died, they came and took her younger sister and they also forcibly married her. He said this is like a normal thing and there was nothing that anyone can do. He said it is like that everywhere.

[35]     The country documentation is consistent with the claimant and the witness’s testimony of persecution and the risks in Somalia. Forced marriage is deeply rooted in Somali culture and its interpretation of Islamic practices according to the NDP 5.2. Harmful practices such as forced marriages are still taking place and are common although they are constitutionally against the law.

[36]     Women’s rights and physical integrity are challenged by religious and customary practices, including polygamy, forced marriage and wife-inheritance. Gender-based violence is widespread in Somalia according to Human Rights Watch.

[37]     In terms of widow inheritance, there’s actually a name for that, duma (ph), and it means that a widow marries her deceased husband’s brother. Apparently there’s a report in a book called Culture and Customs of Somalia that this tradition is dying out but that it is probably more frequent in rural areas than in towns.

[38]     I asked the claimant what her place of residence was like and she described a place where there were farms even within the town as well as farms around the town. She described livestock. In fact, her bride price was ten goats paid to her father. As a minority clan member, she said she was only worth ten goats to them. If she’d been of a majority clan, it would have involved large sums of money and goats and camels as well.

[39]     So, while the tradition may be dying out according to that one source, I’ve heard the credible claimant’s testimony as well as corroboration and documents from the uncle who was involved with this second marriage that was to be arranged as well as the mother and, of course, there is the testimony of the witness who said that this type of thing is very common in that part of Somalia and generally in Somalia.

[40]     Again, as I said the country documents confirm that sexual and gender-based violence are serious concerns throughout Somalia and a woman without family, friends or clan connections or without resources in general is likely to be at risk of sexual and gender­ based violence upon her return.

[41]     There’s a report called No One Cries for Them: The Predicament Faces Somalia’s Minority Women. This report paints a grim picture of the human rights situation affecting women generally in Somalia and minority women in particular based on the various historical, social, economic, and political factors, including traditional religious and clan structures compounded by years of violence, poverty and famine. This has made Somalia one of the worst places in the world for women, according to this report.

[42]     The report highlights how women’s rights and those of minority women in particular are ignored by the majority population, how they are violated with impunity. The plight of women during the last two decades of conflict has been characterized by displacement, rape, gender-based violence, etcetera, etcetera, inadequate or non-existent political representation and lack of access to economic and social rights and these are some of the grim realities that women of Somalia in general and especially minority women continue to endure today.

[43]     Based on all the evidence before me, I find that the claimant would face a senous possibility of persecution if she were to return to Somalia.

State protection

[44]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption there is an onus on the claimant to establish on a balance of probabilities with clear and convincing evidence that their state’s protection is inadequate.

[45]     I find that adequate state protection would not be forthcoming in this particular case and there is clear and convincing evidence that rebuts on a balance of probabilities a presumption of state protection.

[46]     Women in Somalia do not have the same rights as men and they’ve experienced systematic subordination to men despite provisions in the federal constitution, a weak judiciary, as well as misogynist traditional and tribal laws and practices work against women. In general, a woman fearing sexual or gender-based violence is unlikely to be able to access effective protection from the state according to the NDP 5.5 which is from the United Kingdom Home Office.

[47]     Gender-based violence is widespread. Constitutional protections are largely limited to the paper that they are written on and they are not available in practice. Most incidents go unreported. There is a culture of impunity. It is a serious and according to recent reports increasing problem.

[48]     Domestic violence such as the claimant experienced is generally accepted with 76% of women aged 15 to 49 believing that a husband is justified in beating his wife for burning the food, refusing sexual relations, or arguing with him. Thus, the claimant who endured domestic violence from her late husband and was then faced with forced marriage to her equally abusive brother-in-law is in the minority. She’s a woman who did not agree with this and she actually fled the situation in disagreement with her in-law’s demands and the cultural expectations.

[49]     Thus I find there is clear and convincing evidence demonstrating on a balance of probabilities the state is unable or unwilling to provide this claimant with adequate protection and the presumption of state protection has been rebutted.

[50]     An internal flight alternative arises when someone who meets all the elements of the definition of a Convention refugee in their home area of the country nevertheless is not a Convention refugee because they could live safely elsewhere in the country.

[51]     The test for this has two prongs. I’d have to be satisfied on a balance of probabilities that there would be no serious possibility of persecution in the part of the country to which I found an IFA exists; and, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all circumstances, including those particular to the claimant for her to seek refuge there.

[52]     Looking at this second part, I do find that it would be unreasonable in all circumstances, including those particular to the claimant, for her to seek refuge there, anywhere, in Somalia and this is why.

[53]     First off, the claimant testified that if you’re seen as Westernized, i.e. you’ve lived in a Western country for any period of time as the claimant has now done for over a year, you can be seen as a spy and be treated very poorly.

[54]     I asked the witness as well if there was anywhere in all of Somalia that the claimant could be safe and he said that she wouldn’t be able to survive anywhere else if her clan was not there and that she’s from a minority clan and it’s only in that general area. As she testified earlier there are some clan members in Mogadishu and in Qoryoley area.

[55]     The witness said that if the claimant goes back she’11 end up right back in the hands of the people that she was running from.

[56]     Country documentation notes there’s ongoing insecurity and severe drought in Somalia which poses a major risk to the viability of any repatriation process. That’s NDP 14.6.

[57]     Somalia is a far from stable state. There are more than five million people, that is 40% of the population who are in need humanitarian assistance, according to NDP 5.7. Access to water is a major issue according to Amnesty International and this leads to illness and disease widespread. Even simple access to shelter is problematic and when and if shelter is found, returnees are at risk of regular and ongoing forced evictions.

[58]     The situation for internally displaced women, which is what this claimant would be if she returned to an IFA in Somalia, is grim. The Response to Information Report from the IRB states that according to sources due to the need for male protection in Somali society, women without a support network face extreme hardship and difficulties accessing housing or employment.

[59]     The gender advisor similarly explained that even for women with clan protection that women’s rights are not protected, especially in cases of rape or sexual violence. Perpetrators can even be from the same clan and clan elders can resolve cases such as this in traditional ways which can result in forcing a woman to marry the person who has been harming in order to protect their family honour.

[60]     Minority women lack any such protection and experience most pronounced forms of social, cultural and economic discrimination including exclusion from basic services, difficulties accessing support.

[61]     I mentioned the forced evictions of internally displaced people. Mass evictions are not uncommon.

[62]     The documents are clear that any women need to have established clan network support and endorsement from clan elders in order to survive and with no connections this would be difficult.

[63]     It would be unreasonable to expect the claimant to return to the area where she’s from where her father-in-law and his son, who he plans to make her marry, are living and if she were to go anywhere else she would not have access to clan support.

[64]     The UK Home Office at NDP 1.12 also says that travel by land across southern and central Somalia to a proposed place of relocation may well in general pose real risk of serious harm, particularly the al-Shabaab checkpoints.  The claimant herself described traveling just to Mogadishu, hiding in among the sheep and the goats in the back of a truck, hoping at every checkpoint that she would not be discovered.

[65]     There are checkpoints all over Somalia operated by government forces, allied groups, armed militias, clan factions and al-Shabaab. These checkpoints have inhibited movement, exposed citizens to looting, extortion, harassment and violence according to the US Department of State report.

[66]     So, even just relocating to another place in Somalia would put the claimant at great risk.

[67]     When you’re looking at the test for an internal flight alternative if either prong of the test is not met, then there is no viable internal alternative in the country. I’ve considered the second prong which requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to any safe area and it would have required actual and concrete evidence of adverse condition and I have now considered the conditions throughout Somalia. I have reviewed the country documentation. I’ve considered the circumstances of this claimant and I find it is objectively unreasonable and unduly harsh as understood in Canadian jurisprudence for this claimant to seek refuge anywhere in Somalia; therefore, there is no internal flight alternative.

[68]     I find that there is a serious possibility the claimant would be persecuted up on her return to Somalia throughout the entire country. Based on the totality of the evidence I have concluded the claimant is a Convention refugee and accordingly I’ve accepted her claim.

—PROCEEDINGS CONCLUDED

Categories
All Countries Rwanda

2019 RLLR 117

Citation: 2019 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Miryam Molgat
Country: Rwanda
RPD Number: VB8-02636
ATIP Number: A-2020-01459
ATIP Pages: 000228-000232


— DECISION

[1]       PRESIDING MEMBER: This is the decision in the claim of Mrs. [XXX]. I have considered your testimony and the other evidence in the case and I’m ready to tender my decision orally. I would like to add that in the event that written Reasons are issued, a written form of these Reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included.

[2]       The claimant claims to be a citizen of Rwanda and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground in Rwanda. My reasons are as follows.

[3]       The claimant’s complete allegations are set out in the Basis of Claim Form at Exhibit 2 and need not be repeated here in detail. To summarize briefly, the claimant is a woman born in 1979. She left her country on [XXX], 2018. She left behind her three children, her siblings and her mother. Her claim is based on gender-related abuse from her husband, [XXX] (phonetic). The abuse was sexual and physical in nature. The certainly sought state protection to no avail. She suffered a miscarriage as a result of her husband’s abuse. She was repeatedly raped by her husband in the course of their marriage. Her husband is employed by the [XXX] and is associated with the [XXX].

[4]       The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in her country of nationality. The main issue is state protection.

IDENTITY

[5]       The claimant’s national identity has been established by the testimony and the supporting documentation filed and entered in the proceeding. The current passport is on file, along with other documents. I’m satisfied of the claimant’s identity.

NEXUS

[6]       For the claimant to be a Convention refugee, the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. In other words, the claimants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. I find that the harm feared by the claimant is by reason of one of the five grounds enumerated in the Convention refugee definition, namely, as a woman victim of domestic abuse, i.e. membership in a particular social group.

[7]       Turning to credibility, when credibility is assessed there are two principles that are followed. Firstly, when the claimant swears to the truthfulness of certain facts there is a presumption that what she is saying is true unless there’s reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and commonsense. The determination as to whether the claimant’s evidence is credible is made on a balance of probabilities.

[8]       I had concerns regarding credibility because of the significance of some of the Basis of Claim Form amendments and very specifically the amendment relating to the claimant’s husband’s association with the DMI. DMI is the [XXX]. I also had credibility concerns regarding a certain lack of corroborating evidence in support of her allegations.

[9]       Having heard the claimant’s testimony and having observed her in person, I find her credible. Her demeanour was very credible. Her face was very expressive and was a direct and contemporaneous expression of emotions that her testimony conveyed. There was a lack of embellishment to her testimony. She many times simply said, “I don’t know” when asked questions. Her testimony was direct. Her explanation for some of the omissions from the original Basis of Claim Form were reasonable. She explained that she had so many things in her head and I found that her explanation for what she meant by that was very credible and directly supported the subject matter of the Chairperson’s Gender Guidelines in terms of what one can reasonably surmise and expect in the testimony of gender-related persecution, which in this case is a history of horrific abuse at the hands of her husband. So I draw you negative inference from the fact that certain aspects of the claimant’s material allegations were not in her original Basis of Claim Form.

[10]     In addition, she added credible testimony in her hearing which was not in the Basis of Claim Form, for example, explaining that she had considered divorce and she provided a reasonable explanation for why she did not go ahead and actively take steps to obtain a divorce from her husband and she also said that her husband threatened her and said that she would only leave the house dead.

[11]     The claimant was able to reasonably and consistently explain why she had failed to mention the DMI in her original Basis of Claim Form and she was able to credibly testify to her husband’s employment history. Given the relatively secretive nature of [XXX], I found her lack of detail on his employment with the DMI and how he combined that with his [XXX] to be credible. To draw a parallel, unless the spouse worked for the [XXX] in the case of Americans, I would not reasonably expect the spouse to know a lot about what the other spouse in the marriage did while employed by the [XXX], for example.

[12]     I further note that the claimant, who has 12 years of education, came across as relatively unsophisticated and that this helped me to understand certain perceived gaps in the credibility which she was able to resolve to my satisfaction at the hearing.

[13]     Moving on to the question of subjective fear, I found her credibility in this regard to be -­ her testimony in this regard to be credible and she provided reasonable explanations for why she had not sought refugee status in the United States. She explained in a spontaneous way why she had decided to come to Canada and why she had chosen Vancouver specifically. Her explanation had to do with the lack of a significant Rwandan population here and the fact that she knew no one in Canada, unlike the situation of the people she was visiting with in the United States. So I found that that aspect of her oral testimony added to her credibility and actually positively contributed to a finding that she does have a subjective fear.

[14]     Turning to the determinative question of state protection, it was open to the claimant, according to the law, to rebut the presumption of state protection with clear and convincing evidence. Individual police figures do not prove that state protection is inadequate and it is unclear to me whether the claimant reasonably tested the effectiveness of state protection in Rwanda. I disagree with counsel as to whether there is adequate state protection for domestic violence in Rwanda but, ultimately, that’s neither here nor there because I agree with counsel that the claimant, in her specific case, is unable to access effective adequate state protection and I will start the analysis by assuming, for the purposes of analysis, that there is acceptable enough or adequate enough state protection for domestic violence in Rwanda that one needs to try to understand why the claimant did not make further efforts to obtain state protection.

[15]     I note in this regard that the Response to Information Request, RWA104588.E, which is item 5.1 of the National Documentation Package at Exhibit 3, provides detailed information on the existence of hotlines and of one-stop centres and on the fact that there are gender desks at the police station and that there is a gender desk within the Rwandan Defence Force and Ministry of Defence.

[16]     I note, and I agree with counsel, that there are shortcomings to the state protection measures in place in Rwanda for domestic violence, but I do note, for example, still from this Response to Information Request, that there have been several convictions perpetrated of domestic violence. For example, there was a conviction of 115 perpetrators of spousal harassment and there was a conviction of 53 perpetrators of adult rape. I note that the possible sentence for spousal rape is notably lower than that of adult rape outside of marriage and I note that, in general, the attitude in Rwanda appears to be that this is often a private matter which should be resolved, probably to the detriment of the victim, within the family. But all the same, when I look at the extensive information in this Response to Information Request, I found that there were more avenues that the claimant could have pursued and did not.

[17]     However, I find that in her case she would not have been able to access adequate state protection, not because of a problem with the Rwandan Police, who are the first level of response to complaints of domestic abuse, but rather because of her husband’s association with the DMT.  This matters not only because of what I find is objective evidence supportive of an adequate level of state protection for domestic violence in Rwanda, but also because the claimant twice testified that had her husband not worked for the DMI, she would have been able to get state protection. I can’t ignore that testimony and even less so when it was clear and direct, unsolicited. It was not in response to a direct question and it came twice during the hearing.

[18]     Now, turning to the DMI, as was well argued by counsel, it’s not surprising that there’s little information on the DMI, given the nature of its work. I find that the DMI does exist. As is indicated by Exhibit 6, it is a notorious agency and I find that, on a balance of probability, it is an agency with malevolent goals and practices. Unlike the evidence on the Rwandan Police, which seems to be more mixed, the evidence on the DMI would point to an agency which has specialized in human rights abuses conducted in a covert way and, as the claimant’s testimony on what little she knew of her husband’s work, fully supported this. She said that she went out at night. She said that he came back with bloodstained clothes and she provided during the hearing testimony that was shocking with regards to what the DMI seem to do, which in that case was to blow up the home with the family inside the home of people who are political opponents of the Rwandan government, and this was in addition to information that she had already provided in her Basis of Claim Form of people being persecuted in front of her and her husband showing her the abuse as a way of further intimidating her.

[19]     In addition to her husband working for the DMI, she has established that he is someone who is evil and who continues to want to harm her and her family members. Her testimony on what has happened to her family members since she left was credible. I note that at one point he was sentenced to a criminal sentence, but I found that that is not enough for me to conclude that he no longer has the profile or the motivation or the capacity to persecute her should she return to Rwanda and I further find that this profile of his is such that I find that he would thwart any serious attempt on the claimant’s part to obtain state protection.

[20]     When asked why she did not complain at a police station where her husband was not employed, the claimant spontaneously testified that that is not how it works and that it’s not possible to do so. I accept that explanation and I accept that she did complain twice to the police of her husband’s domestic abuse and that there was an utter failure of state protection in response to this. So given all of this, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence.

[21]     Turning to the last question, which is that of internal flight alternative, it was not canvassed at the hearing, but I find that, given her husband’s profile and the fact that he is employed by the DMI, I find that the claimant faces a serious possibility of persecution throughout Rwanda as the state is in control of the entire territory and it would not be difficult for the claimant to locate her should she return. It’s clear that he’s motivated to do so and, in addition, Rwanda is a geographically quite small country.

[22]     In conclusion, having considered all of the evidence, I determine that there’s a serious possibility that the claimant would be persecuted in Rwanda for one of the five grounds enumerated in the Refugee Convention.  I find that the claimant is credible. She has established that her husband works for the DMI and has the motivation and capacity to continue to persecute her should she return to Rwanda. This matters, as it relates to the determinative issue of state protection.

[23]     Having come to this conclusion, I have not conducted further assessment under section 97(1) of the Act. I conclude that the claimant, Mrs. [XXX], is a Convention refugee and I, therefore, accept her claim.

— DECISION CONCLUDED

Categories
All Countries Palestine

2019 RLLR 116

Citation: 2019 RLLR 116
Tribunal: Refugee Protection Division
Date of Decision: July 31, 2019
Panel: Chad Prowse
Country: Palestine
RPD Number: VB8-02564
ATIP Number: A-2020-01459
ATIP Pages: 000221-000227


— DECISION

[1]       PRESIDING MEMBER: Mr. [XXX], I’ve considered your testimony and the other evidence in your case, I’m ready to render my decision orally. I would like to add that in the event that written reasons are issued they will reflect those that I’m giving you know.

[2]       Mr. [XXX] and his spouse Mrs. [XXX] and their child [XXX] are stateless persons from Gaza in the occupied Palestinian territory, who claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Mr. [XXX] is the designated representative for his daughter [XXX].

[4]       The claimants’ complete allegations are contained in the principal claimant’s basis of claim form and narrative. In brief, they allege the following: The principal claimant was raised Muslim but has considered himself to be an atheist or agnostic for the past four to five years.

[5]       In June 2010, the principal claimant completed his undergraduate degree in Gaza graduating at the top of his class. Although it is a long-standing tradition in Palestine that the top graduate of each class goes on to work for the government. He was told that he was not ethically fit to work for the government as he did not attend mosque or answer their questions about his religion appropriately. The principal claimant went on to work in the non-profit sector including at the [XXX] from June 2012 to June 2013, and for the [XXX]. He worked as a [XXX].

[6]       Around February or March 2013, the claimant received his first threat, a neighbour associated with Hamas approached him and politely advised him to stop taking a position as part of his work that abusers of disabled women should be prosecuted. A neighbour told him that Hamas would otherwise take action against him. As a result of this threat, the claimant kept a lower profile at work. He left his employment a few months later.

[7]       In February 2014, the claimant was kidnapped the day after discussing his UNESCO project with youth during which he had inadvertently spoke about the problem of military recruitment of children by Hamas, and expressed his view that the problems in Palestinian are due to land seizure and are not about religion or ethnicity, and that children should not be taught to hate Jews. The claimant was beaten and told that what he said at the round table discussion with youth was inappropriate that Jews were the enemy, and that those who had kidnapped were angry with him or angry with him. He was dropped off at night a long ways from his house. The claimant believes that he was kidnapped by the internal security wing of Hamas.

[8]       September 2015, the claimant received a letter from Hamas at his home informing him that he was required to attend the Hamas police station on 7th September 2015. He attended this meeting. The Hamas police officer told him that he was disturbing the public calm for having voiced his opinion about a schoolgirl who was dismissed from class for refusing to wear a headscarf. His opinion was that persons should be free to wear whatever they wish. While he was being interviewed by the police his phone was searched, they found a conversation with other secular atheists there and discovered that he was working as a volunteer with a human rights organization called [XXX]. The officer was angry and threatened to kill him and tell everyone after he was an Israeli spy if he peeped one peep.

[9]       The claimant became ostracized in his community and decided to leave Gaza permanently as he feared for his life. He applied for and obtained a Fulbright scholarship which allowed him to obtain all four permits required to leave Gaza. On [XXX] 2016, the claimants departed Gaza. The principal claimant was questioned for three hours at Erez cross point by Hamas security forces. The officer told him that he would do well not to return to Gaza.

[10]     The principal claimant completed his graduate studies in Kansas on 10th May 2018. He considered making an asylum claim in the US but did not do so because of what he refers to as the US president’s bigoted and racist comments towards Muslims, and personal encounters with racism in the US. The claimants decided to seek asylum in Canada and entered Canada on [XXX] 2018, shortly before the expiry of their status in the US.

[11]     The principal claimant fears that he will be killed or harmed by Hamas as a secular western educated liberal who values freedom of thought and speech. Particularly as he has been critical of Hamas already and he’s experienced threats and violence from them or persons allegedly acting in concert with them.

[12]     In order to find that the claimants are Convention refugees or persons in need of protection, I must find if there’s sufficient credible or trustworthy evidence to determine that there is a serious possibility that they would be persecuted on Convention ground, or that on a balance of probabilities there is substantial grounds to believe they would be tortured or at risk of losing their life or being subjected to cruel and unusual treatment or punishment if they return to the Palestinian occupied territory.

[13]     Additionally, there must be clear and convincing evidence that state authorities there cannot adequately protect them from this persecution or risk. Furthermore, there must not be another place within the Palestinian occupied territory where they could live safely and where it would be reasonable to do so under the circumstances. I find that the claimants are Convention refugees on the grounds of political opinion as perceived traitors or enemies of Hamas.

[14]     The determinative issues, in this case, are identity and credibility. Where stateless persons of multiple countries of former habitual residence they must demonstrate on a balance of probabilities that there is a serious possibility that they would be persecuted than any country of former habitual residence, and that they cannot return to any other country of former habitual residence where they would not face persecution.

[15]     The claimants’ identity as stateless former habitual residents of Gaza is established by their testimony, and the supporting documentation filed including their Palestinian authority passports, certified copies of which are on file.

[16]     Although the claimant resided in the US for one to two years while the principal claimant completed his graduate studies there, and the principal claimant also briefly studied in Egypt prior to marriage, I find that neither country is a country of former habitual residence for the purpose of this analysis. Notwithstanding this, the claimants are unable to return to either the US or Egypt where the claimants only possessed temporary status that has since expired.

[17]     When a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there’s a reason to doubt their truthfulness. I found the principal claimant to be a credible witness. He testified in a straightforward manner and there were no material inconstancies in his testimony or contradictions between his testimony and the other evidence before me that have not been explained. He provided a spontaneous and detailed account of his former employment in Gaza on community and youth development issues, and was able to articulate his thoughts on the Hamas lead government in Gaza, Hamas affiliated military camps for youth and children and related challenges and obstacles affecting youth in Gaza in a manner that suggested that these were deeply held and considered views.

[18]     The claimants supported their claim with considerable probative and reliable documents including but not limited to documentary evidence of the principal claimant’s employment and volunteer experience with non-profit and human rights originations in Gaza. Evidence of his social media posts on Facebook in which he is clearly criticizing Hamas and personal letters of support.

[19]     Although the claimants did not make a refugee claim in the US, I do not draw a negative inference from this. The claimants did not delay in leaving Gaza considering that logistical difficulties involved in exiting the territory. The claimants maintained valid temporary resident status in the US for the duration of their stay. They applied for refugee protection promptly upon their arrival in Canada. Moreover, as per case law, the mere fact that the claimant failed to seek asylum in the US is not fatal to their claim.

[20]     The claimants’ fear of persecution in the Palestinian occupied territory is supported by the objective evidence. Firstly, on the issue of the treatment of perceived or actual political opponents of Hamas, according to a report by Human Rights Watch in the NDP:

Since it seized control of Gaza in June 2007, Hamas authorities have harassed critics and abused those in its custody. Hamas authorities have also carried out 25 executions since they took control in Gaza in June 2017 including six in 2017. Following trials that lacked appropriate due process protections and courts in Gaza have sentenced 117 people to death according to the Palestinian Centre for Human Rights.

[21]     Similarly, according to the United States Department of State report on Israel, Golan Heights, West Bank, and Gaza for 2018:

Human right issues with respect to Hamas include: reports of unlawful or arbitrary killings, reports of systematic torture, reports of arbitrary detention, political prisoners, arbitrary or unlawful interference with privacy, family and home, undue restrictions on free expression the press and the internet, including the detention of journalists, censorship and site blocking, substantial inference with the rights of peaceful assembly and freedom of association. Significant restrictions on freedom of movement including the requirement of exit permits, restrictions on political participation as there has been no national election since 2006. Corruption unlawful recruitment or use of child soldiers, threats of violence motivated by anti-systematism and the use of forced or compulsory child labour.

[22]     Similarly, according to the 2018 Freedom House report for the Gaza Strip:

Hamas continues to persecute critical journalists and other perceived opponents during the year and persisted in its application of the death penalty without due process.

[23]     On the issue of the forced recruitment and mistreatment of children, according to a report from the Australian Department of Foreign Affairs and Trade titled, “DFAT Thematic Report: Palestinian Territories” for March 2017:

Statistics on forced recruitment in Gaza are not available and it is difficult to build a complete picture of the prevalence and nature of this practice. However, Hamas runs summer camps for schoolchildren and based on various reports, these camps involve some level of militant training, including weapons handling and lessons on Hamas doctrine but do not result in forced recruitment. About 100,000 children attend Hamas’ summer camps; 50,000 attend the alternative camps run by Palestinian Islamic Jihad, but the majority, around 250,000, attend the more popular UNRWA summer camps.

[24]     However, according to the latest US DOS report already referenced:

There are reports Hamas trained children as combatants as recently as 2018. Hamas reportedly did not enforce child labour laws in Gaza either and reportedly encouraged children to work gathering gravel and scrap metal from bombed sites to sell to recycling merchants and increased recruitment of youth for tunnel digging activities.

[25]     During the hearing, the principal claimant also expressed his fear that his daughter will face discrimination accumulatively amounting to persecution or gender-based violence as a female in Gaza.

[26]     According to a UN report titled, “Gaza Ten Years Later”:

Over the past decade, Gaza has also seen rising levels of gender­ based violence, and child protection violations. While accurate reporting on these issues remains difficult, a recent report suggests that more than 148,000 women in Gaza are exposed to gender­ based violence. Between 2011 and 2014 UNRWA identified 3,160 survivors of gender-based violence in Gaza and provided a range of different services. Moreover, the Women’s Centre for Legal Aid and Counselling has documented 27 killings of women and girls in 2014, 15 cases in 2015 and 18 cases in the first eight months of 2016.

[27]     On a balance of probabilities, I find that the principal claimant genuinely holds views and has undertaken paid or unpaid activities that make him a perceived political opponent of Hamas. Including his opposition to the recruitment of children and youth by Hamas that on the basis of his testimony which I have found to be reliable. He has already been the target of both official and unofficial targeting by Hamas and its affiliates as a result of these views and actions. Country documents show that he faces more than a mere possibility of persecution on the basis of a Convention ground on this basis.

[28]     Leaving aside the question of whether or not his wife and daughter have a well-founded fear of persecution solely on the basis of gender-based violence and discrimination in Gaza an allegation that finds some support in the country documents, I find that they too have a well-founded fear of persecution by virtue of their dependence on the principal claimant. The principal claimant’s daughter is a five-year-old girl.

[29]     I find that there’s no — there is no adequate expectation of state protection for the claimants and they have rebutted the presumption of state protection. In this case, the agent of harm is the de facto state in Gaza which is effectively run by Hamas.

[30]     Additionally, I find that the claimants do not have a viable flight alternative — internal flight alternative as relocation is effectively impossible without alerting the de facto authorities in Gaza. Furthermore, the current severe restrictions on the movement of Palestinians in the Gaza Strip in the West Bank will make internal relocation extremely difficult for many. I find that it would not be possible for the claimants to safely relocate to the West Bank or within the Palestinian territory.

[31]     Therefore, having considered all of the evidence before me, I determine that the claimants are Convention refugees on the basis of the grounds enumerated above. Your claims are approved. Congratulations.

— DECISION CONCLUDED