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2021 RLLR 7

Citation: 2021 RLLR 7
Tribunal: Refugee Protection Division
Date of Decision: June 10, 2021
Panel: Kristy Sim
Counsel for the Claimant(s): Johnson Babalola
Country: Bahamas
RPD Number: VC1-03028
Associated RPD Number(s): VC1-03029
ATIP Number: A-2022-00210
ATIP Pages: 000214-000220

DECISION

This transcript constitutes the member’s written reasons for decision.

[1]       MEMBER: This the recording of a reserved decision of the Refugee Protection Division in the claim of XXXX XXXX, the principal claimant, and XXXX XXXX XXXX, the minor claimant, file numbers VCl-03028 and VCl-03029. In assessing this claim, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution and the Guideline on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (or the SOGIE Guideline).

[2]       The principal claimant provided a letter of consent from the minor claimant’s father as well as a copy of the minor claimant’s birth certificate, Exhibit 6. The claimants are citizens of the Bahamas are claiming refugee protection pursuant to Section 96 and Subsection 97 (1) of the Immigration and Refugee Protection Act. Their allegations are set out in full in the Basis of Claim forms at Exhibit 2.1, 2.2, and amended BOC narrative in Exhibit 10.

[3]       In summary, the principal claimant is a XXXX XXXX year-old woman who grew up in a Christian family. While she was in school, she found women beautiful but suppressed these feelings out of fear as her family, her religious community, and Bahamian culture is deeply homophobic. She found high school difficult due to her struggles over her own sexuality and her fear of being rejected. The principal claimant came to realize that she was bisexual and had her first romantic relationship with a woman in XXXX 2014. They met at work and kept their relationship secret. ln 2015, she entered a romantic relationship with a man with whom she had a child, the minor claimant, in XXXX XXXX. This relationship ended shortly thereafter. In XXXX 2016, when the claimant started her job at the XXXX XXXX she met XXXX XXXX (ph) whom I will refer to as her ex-partner throughout. They soon began a relationship; she did not discuss her bisexuality with him as she feared how he would react. The principal claimant said she was very much in love and the two of them moved in together along with the minor claimant over whom the principal claimant had full custody.

[4]       The principal claimant eventually learned that her ex-partner was having a relationship with another woman; however, she felt unable to leave him. They eventually worked out their differences and got engaged in XXXX 2017, although she describes this relationship as emotionally abusive and him as obsessive. The principal claimant got a second job in the XXXXof a XXXX where she met XXXX XXXX in XXXX 2018. They quickly formed a close friendship and eventually it became romantic. XXXX XXXX XXXX identifies as a lesbian. The two women professed their love for each other in XXXX 2018 but kept the relationship a secret. A few friends of theirs suspected them of being romantically involved, however, they were careful to socialize in a group usually after work and with other co-workers. The principal claimant is not aware of any safe spaces for members of the lesbian, gay, bisexual, transgender, and intersex (or LGBTI) community.

[5]       The claimant went to Florida in XXXX 2019 with XXXX XXXX XXXX and some other friends. They were secretly intimate with each other on this trip but were not open about it to their friends. The principal claimant’s relationship with her ex-partner was deteriorating primarily due to her desire to be with XXXX XXXX XXXX. In XXXX 2019, her ex-partner went through her phone and saw messages between her and XXXX XXXX XXXX. He asked who it was, and the principal claimant brushed it off and responded that it was a misunderstanding. However, they argued, and the principal claimant left the home to clear her head and also to see XXXX XXXX XXXX. When the principal claimant returned late that evening, her ex-partner confronted her, and she confessed to being in love with XXXX XXXX XXXX. He was enraged and violently assaulted her. The minor claimant witnessed much of the violence including his mother being choked and her ex-partner saying that he would kill her. The principal claimant eventually grabbed a knife from the kitchen to defend herself, but her ex-partner knocked out of her hands and slapped her until she fell to the ground, then he walked away. She ran out of the home with her son and had a friend take her son to his grandmother’s house and her to the police station. The police were nonchalant and told her to first get treatment at the hospital. She went to the hospital and received stitches to her face. She returned to the police station to report the assault the police did not take a report but offered to take her back to the house to get her clothes which she did. There was no discussion of a restraining order or a protection order and the police told the principal claimant to find somewhere to stay that night.

[6]       The principal claimant followed up with the police by telephone, in person, and with emails as she intended to follow through on the assault charges against her ex-partner. However, nothing happened, and the police did not take the matter seriously. The principal claimant immediately moved into her mother’s home, stopped working at the XXXX XXXX and blocked all contact with her ex-partner. He stalked her wanting to know why she was not talking to him and demanding that she return to him and their relationship. He also followed her and XXXX XXXX XXXX as they left work one night until the principal claimant drove into the parking lot of the police station at which point, he left. He repeatedly tried to contact her on Facebook using different identities and demanding that she return to him. The principal claimant took her son to Disneyland with some friends in XXXX 2019 for a short trip. Her ex­ partner intercepted her as she attempted to board the flight as he had access to the XXXX XXXX and to this area of the airport through XXXX XXXX. He grabbed her arm and told her not to run as he would find her and make things bad for her if she continued to avoid him.

[7]       The night the principal claimant returned from Florida her ex-partner went to her mother’s house screaming at her to return to him and insulting XXXX XXXX XXXX, he also vandalized her car. The principal claimant called the police, but they did not come. XXXX XXXX XXXX convinced the principal claimant to go to the police station several days later, on XXXX XXXX XXXX 2019, to report these additional incidents. In explaining what her ex-partner had said and done, the police referred to the principal claimant and XXXX XXXX XXXX in a derogatory way, saying that they did not want to encourage this type of relationship. The principal claimant felt unsafe in Nassau and believed that her ex­ partner would be able to find her if she moved given how small the Bahamas are and his broad community connections through the XXXX XXXX. She also did not want to have to hide and deny her sexuality any longer.

[8]       Feeling like she had no option but to leave the Bahamas, she purchased a flight for her and her son and departed the Bahamas a few days later, on XXXX XXXX XXXX 2019. Her ex-partner accessed her private accounts and sent personal and explicit photographs and videos of her with XXXX XXXX XXXX and a previous same-sex partner to friends and family members including her parents. The principal claimant’s family members reacted with anger and told her that she was a disgrace. She is still estranged from her father and her siblings as a result of their learning about her sexual orientation. While her mother struggled with accepting the principal claimant, they eventually were able to re-establish a relationship. The principal claimant’ s sexual orientation was disseminated more broadly throughout the community as well. She fears that if she returns to the Bahamas she would be assaulted or killed by her ex-partner.

[9]       The principal claimant also fears mistreatment by members of the public on account of her sexual orientation. She fears that the minor claimant will be harmed by her ex-partner either directly or in witnessing her being abused and harmed by him and that her son will also be mistreated due to her sexual orientation. I find that the claimants are Convention refugees as they have a well-founded fear of persecution in the Bahamas. My reasons are as follows.

Identity

[10]     I find that the claimants’ identity as Bahamian nationals is established on a balance of probabilities by the principal claimant’s testimony and a copy of each of their passports in evidence at Exhibit 1.

Credibility

[11]     With respect to the claimant’s sexual orientation, she provided testimony that was candid and direct. She testified in a spontaneous and natural fashion about her sexuality and her same-sex relationships. She explained in detail how she met previous girlfriends, how they were able to be together, and why their relationships ended. I find that this testimony was genuine and consistent. The claimant provided corroborative documentary evidence of her sexual orientation including a letter from XXXX XXXX XXXX attesting to their relationship and how they are currently taking a break but remain in love. As well as messages exchanged between her and XXXX XXXX XXXX, photographs, and videos of the principal claimant and XXXX XXXX XXXX as well the principal claimant with a previous same-sex partner in the Bahamas. Letters of support from close friends of the principal claimant about how and when they learned about her sexual orientation. Messages exchanged between the principal claimant and women she was chatting with within Canada and a screen capture of the principal claimant’s registration with The 519 organization in Toronto and those are found in Exhibits 5, 7, 8, 9, and 10. The principal claimant also provided numerous articles about serious issues faced by the LGBTI community in the Bahamas and those are found at Exhibits 1 and 9.

[12]     With respect to the domestic abuse aspect of the claim, the principal claimant provided a detailed account of her ex-partner’s attack in her BOC narrative as well as in her oral testimony. The principal claimant explained what the minor claimant experienced and witnessed during this attack. She also testified about what she believes would happen if she were to relocate to another area in the Bahamas. The principal claimant’s response to my questions were emotional, genuine, and credible. The principal claimant also provided documentary evidence which corroborated her allegations of abuse including: a police report from XXXX XXXX XXXX 2019; an email sent by her to the police reiterating that she had been in several times with no progress and stating that she wants the matter to proceed, which was dated XXXX XXXX XXXX 2019; a video showing the damage to the principal claimant’s car by her ex-partner on XXXX XXXX XXXX 2019; a letter of support from a friend the night of her attack about having received several missed calls from the principal claimant; letters of support from friends and co-workers saying that the principal claimant never returned to work at the XXXX after the assault and that her ex­ partner was angry about her wanting to be with XXXX XXXX XXXX; messages in which the principal claimant was trying and locate the hospital records from the night of her assault; and photographs and videos of the principal claimant and her ex-partner; as well as a referral for XXXX treatment and support, and a XXXX report detailing the XXXX effects of domestic violence, Exhibits 5,7, and 9.

[13]     There were no material inconsistencies or contradictions within the principal claimant’ s evidence that caused me to question her credibility. I find her testimony was credible and was supported by corroborative documentary evidence as such I accept that the principal claimant is bisexual and that she has experienced domestic violence as a result of her relationship with XXXX XXXX XXXX and that her ex-partner stopped, threatened, and harassed her following his assaulting her in XXXX 2019.

Well-Founded Fear of Persecution

[14]     The principal claimant fears persecution in the Bahamas on account of her identity as a bisexual woman. The principal claimant also fears persecution from her abusive ex-partner. According to the Gender and SOGIE Guidelines, bisexual women and women facing domestic violence both constitute a particular social group. As such, I find that her claim for protection has a Nexus to the refugee convention ground of membership in a particular social group. The principal claimant fears the minor claimant would face persecution in the Bahamas as the son of a bisexual woman. The sexual orientation of a family member in an overtly homophobic country can result in adverse consequences and here I refer to the Federal Court case Corneille which is found at 2014 FC 901. I also find that if the minor claimant returns to the Bahamas, he would be at risk of witnessing his mother’s ex-partner subjecting her to further abuse or even murder. There is a Federal Court authority in the Modeste case at 2013 FC 1262 that children witnessing the abuse of a parent constitutes persecution in itself.

[15]     I find that the minor claimant’s fear of persecution relates to the Convention ground of membership in a particular social group namely children of bisexual women in an overtly homophobic country and children subjected to domestic violence. The objective evidence in the NDP indicates that sexual minorities including bisexual women face serious mistreatment in the Bahamas. Furthermore, I find that the principal claimant’s identity as a bisexual woman intersects with the risks that she faces from her ex­ partner in a way that elevates her overall risk of persecution. While same-sex sexual activity is not criminalized in the Bahamas, individuals who identify as LGBTI face widespread stigmatization and discrimination in the country and l refer here to NDP Items 2.1, 2.3, and 6.3. According to NDP Item 6.1, there is strong anti-gay attitudes in the Bahamas as “homophobia is permeated through cultural attitudes and is expressed in religion, music, and other expressions”. The same source notes that due to the strong stigma against homosexuality. Sexual minorities generally hide their sexual orientation out of fear of ostracism, exclusion, ridicule, and violence.

[16]     The claimants provided recent media reports about homophobia in the Bahamas even against tourists and that’s an Exhibit 5. Discrimination based on sexuality is not prohibited by law, so LGBTI individuals have no mechanism to seek redress from marginalization, systematic discrimination in the areas of employment and housing and that’s NDP 2.3, 6.1, and 6.2. Sexual minorities face discrimination without redress and cannot live openly without facing various forms of mistreatment including violence and I find this amounts to persecution. Moreover, the principal claimant faces an additional risk of persecution from her ex-partner who attacked and threatened to kill after learning that she’s bisexual and in love with a woman. He was infuriated, he continued to stalk and threaten her, and he refused to accept that she wanted to leave him for a woman. I find on a balance of probabilities that the principal claimant’s ex­ partner felt rejected and threatened by her sexuality and that this elevates the risk he poses to her and by extension the minor claimant who is at risk of witnessing the principal claimant being further assaulted or even killed by her partner.

State Protection

[17]     In all refugee claims, the state is presumed to be capable of protecting its citizens unless a claimant presents clear and convincing evidence to the contrary. In this case, I find that this presumption has been rebutted and that the protection would not be forthcoming. NDP Item 6.1 notes that LGBTI people experience difficulties if they turn to the police for protection that they faced smirking, ridicule, and insults if they are open about their sexual orientation which is certainly reflective of the experience of the principal claimant when she went to the police with XXXX XXXX XXXX. This same source reports that “if an LGBTI reports an incident of violence openly to the police, the police will come down against the victim and will say the person got what they deserved.” The US Department of State Report found at NDP Item 2.1 also indicates there is inadequate protection by law enforcement authorities for members of the LGBTI community. Based on this evidence I find that the principal claimant would not have adequate state protection from persecution due to her sexual orientation. I also find that the claimants would not have adequate state protection from the principal claimant’s ex-partner. While there is anti-domestic violence legislation in the Bahamas and some support for women fleeing violence, women’s rights groups there report a hesitancy from law enforcement to intervene in domestic disputes and that’s NDP Items 2.1 and 5.8. In the present case, the principal claimant reported her abuser to the police several times and attempted to follow up and move forward with assault charges. The authorities helped her to return to her home to get her personal effects the night of the attack but did not issue a protective or restraining order or pursued charges against her ex-partner. While she attended the station with XXXX XXXX XXXX, the nonchalance of the police turned to derision. In light of the circumstances, I find that state protection was inadequate. As the principal claimant lacks state protection from her abusive ex-partner, I find that the minor claimant also lacks state protection from the harm she fears namely bearing witness to violence against his mother.

Internal Flight Alternative

[18]     Finally, I’ve considered whether an internal flight alternative available to the claimants. At the start of the hearing, I proposed San Salvador. The first prong of this assessment is to determine whether on a balance of probabilities there’s a risk of persecution, a risk to life, cruel or unusual treatment or punishment, or danger of torture in the proposed internal flight alternative location. According to the objective evidence, the situation for LGBTI individuals is consistent throughout the Bahamas as a result I find there is no location within the Bahamas where the principal claimant would not face a serious possibility of persecution due to her sexual orientation. I also find that the principal claimant’s ex-partner is likely motivated to pursue her throughout the Bahamas. Given the small size of the country, his ability to monitor her movements through his employment at the XXXX XXXX and his strong connections within the community through his membership in the XXXX XXXX XXXX. I find that the ex-partner would also likely have the ability to locate the principal claimant anywhere in the country. As the minor claimant lives with the principal claimant solely, I find that he would also face a possibility of witnessing violence against his mother which I have found amounts to persecution. For these reasons, I do find the claimants have a viable internal flight alternative within the Bahamas.

CONCLUSION

[19]     Having considered the evidence, I find the claimants are Convention refugees under Section 96 of the Act and I accept their claims for protection. This matter is concluded.

(signed)  Kirsty Sim

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2021 RLLR 6

Citation: 2021 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: June 28, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-01443
Associated RPD Number(s): VC1-01444, VC1-01445, VC1-01446, VC1-01447
ATIP Number: A-2022-00210
ATIP Pages: 000202-000213

REASONS FOR DECISION

INTRODUCTION

[1]       This These are the reasons for the decision in the claims of XXXX XXXX XXXX (the “principal claimant”), her spouse XXXX XXXX XXXX (the “associate claimant”), their daughters XXXX XXXX XXXXand XXXX XXXX XXXX (the “minor female claimants”), and their son XXXX XXXX XXXX (the “minor male claimant”), as citizens of Nigeria, who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       XXXX XXXX XXXX was appointed as designated representative for her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX.

[3]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues.

ALLEGATIONS

[4]       The following is a brief synopsis of the allegations out forth by the principal claimant in her Basis of Claim (BOC) form.ii

[5]       The principal claimant fears persecution at the hands of her in-laws in Nigeria for her refusal to have the minor claimants undergo Female Genital Mutilation (FGM).

[6]       The principal claimant is a XXXX XXXXyear-old Yoruba female who was a victim of FGM when she was young. She now fears that her daughters will undergo the same trauma as her father-in-law is adamant on carrying out the procedure on the female minor claimants.

[7]       The principal claimant also fears for her life at the hands of persons convicted of crimes by the courts in Nigeria as she is a bailiff and executes the court verdicts.

[8]       The principal claimant and the minor claimants travelled to Canada on XXXX XXXX XXXX 2018. The associate claimant stayed behind in Nigeria. His father attempted to have him kidnapped, following which he quit his job and escaped to Canada on XXXX XXXX XXXX 2018.

[9]       The claimants filed for refugee protection, fearing for their lives in Nigeria.

DETERMINATIONS

[10]     I find that the principal and the minor female claimants are Convention refugees as they have established a serious possibility of persecution based on their membership in a particular social group upon return to their country. My reasons are as follows.

[11]     I also find that the associate claimant and the minor male claimant have satisfied the burden of establishing, on a balance of probabilities, that they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. My reasons are as follows.

ANALYSIS

Identity

[12]     I find that the claimants’ identities as nationals of Nigeria are established, on a balance of probabilities, based on certified copies of their Nigerian passports on file.iii

Nexus

[13]     For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.

[14]     In this case, the evidence before me is that the principal claimant fears persecution in Nigeria due to her refusal to subject the minor claimants to FGM. I find that she has established a nexus to a Convention ground – membership in a particular social group: namely a woman fearing gender-based persecution. I also find that the minor female claimants have established a nexus to a Convention ground – membership in a particular social group: namely children fearing gender­ based persecution. Accordingly, I have assessed their claims under section 96 of IRPA and not under section 97.

[15]     Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons (Kang, 2005 FC 1128 at para. 10). The associate claimant and the minor male claimant fear persecution in Nigeria due to the threat of kidnapping by the associate claimant’s father and his extended family due to the associate claimant’s refusal to subject the minor female claimants to FGM.

[16]     As victims of crime who fear future criminality which is not connected to one of the five Convention grounds, I find that the associate claimant and the minor male claimant have not established a nexus to one of the Convention grounds. Their claims will therefore be assessed under section 97(1) of the Act, and not section 96.

Credibility

[17]     When a claimant swears to the truthfulness of certain facts there is a presumption that what he or she is saying is true unless there are reasons to doubt it. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities.

[18]     In this case the principal claimant and the associate claimant testified in a straightforward manner and, there were no relevant inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me which have not been satisfactorily explained.

[19]     I canvassed the principal claimant why she did not seek protection earlier, since the threats of FGM by her father-in-law had commenced at the time her eldest daughter was born in XXXX. She explained that at that time they did not take the threats seriously and were able to talk the in­ laws into postponing the consideration of subjecting their eldest daughter to female circumcision. There were discussions on this issue, but the threats never escalated. Following the birth of their second daughter in XXXX, there was more serious talk of revisiting this issue of female circumcision. It is only when the father-in-law and his relatives began demanding that the female minor claimants will have to undergo FGM, did they start to realize the gravity of the matter. Then, when her father-in-law tried to get the associate claimant kidnapped for his refusal to agree with him on the issue of FGM, did they realize that their lives were in danger. I accept the principal claimant’ s explanation for the delay in seeking protection reasonable, as initially, it was just simple talk on the issue of FGM for the eldest minor female claimant. However, with the birth of their younger daughter in XXXX, the situation deteriorated, and the threats worsened with the escalation of those threats to physical harm for the principal claimant, the associate claimant, and the minor male claimant for refusing to honour the family tradition of subjecting the minor female claimants to FGM. I do not draw any negative inference on the issue of delay in seeking refugee protection.

[20]     Apart from their oral testimonies, the principal claimant and the associate claimant have provided corroborating documentary evidence to support their and the minor claimants’ claims. These documents form part of Exhibits 5, 6, 8 and 9. I have no reason to doubt the genuineness of these documents and accept them as genuine. The evidence contains the following:

  • Marriage certificate confirming the principal claimant and the associate claimant are married to each other, along with birth certificates of minor claimants confirming they are their children.
  • Supporting letter from pastor of a church in Nigeria confirming the claimants were facing threats of persecution at the hands of the associate claimant’s father and his extended family on the issue of FGM for the minor female claimants.
  • Medical note from Nigeria showing that the principal claimant was treated for XXXX XXXX XXXX XXXXand XXXX.
  • XXXX assessment report from Canada confirming that the principal claimant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX due to the events she faced in Nigeria.

[21]     Based on the principal claimant’s and the associate claimant’s straightforward testimony and the corroborating documentary evidence discussed above, I find them to be credible witnesses and accept their allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that:

  • The associate claimant’s father and his extended family want the minor female claimants to be subjected to FGM.
  • The principal claimant and the associate claimant were issued threats of harm by the associate claimant’s father.
  • There was an attempt to kidnap the associate claimant at the behest of his father for refusal to have the minor female claimants undergo FGM.
  • The associate claimant’s father has threatened to harm all the claimants for refusing to honour the family practice and tradition of FGM.
  • The principal claimant and the minor female claimants have a subjective fear of returning to Nigeria.

Well-Founded Fear of Persecution and Risk of Harm

[22]     To establish their status as Convention refugees, the principal and the minor female claimants had to show that there was a serious possibility that they would be persecuted if removed to Nigeria.

[23]     I find that the evidence presented in support of their allegations does establish a serious possibility of persecution for the claimants. My reasons are as follows.

[24]     The principal claimant has been threatened with dire consequences by her father-in-law for refusing to subject the minor female claimants to undergo FGM as per the family’s traditions and the Yoruba culture.

[25]     The claimants’ subjective fear is supported by objective evidence.

[26]     The country condition documents for Nigeria corroborate the facts alleged by the principal claimant and the objective basis for her and the minor claimants’ claims. FGM is widespread in Nigeria and the procedure has been performed on 20 million women and girls in the country, with some estimates indicating that 24.8% of all women between 15 and 49 have undergone FGM.iv

[27]     The claimants belong to the Yoruba culture and ethnicity. The objective evidence states that FGM is much more common amongst southern ethnic groups, and studies indicate that between 52-90% of Yoruba women and girls have been subjected to FGM.v

[28]     Although Nigeria has passed legislation to criminalize the FGM as well as the procurement, arrangement, and/or assistance of acts of FGM, the prevalence of this social evil remains concerning and there are no reported instances of any prosecutions brought under federal legislation since its introduction in 2015 in Nigeria.vi

[29]     I also reference the Response to Information Request (RIR) on whether parents can refuse subjecting their children to FGM and the repercussions for doing so.vii The RIR states that the decision to subject a girl to FGM is generally up to her parents and that parents who refuse to let their daughters be mutilated do not face any significant consequences. The principal claimant testified that her in-laws are rooted in rural Yoruba culture and traditions and have subject all their females to FGM. She stated that her father-in-law is adamant that until the minor female claimants are subject to FGM, calamities will befall on the family. She testified that the father-in-law has threatened that he will forcibly take away the minor claimants and do what needs to be done. I agree with the principal claimant’s argument that she and the minor claimants face a serious possibility of persecution as the RIR also states that the decision to refuse FGM without repercussions is dependent on whether the families are urbanites or rural folks, seeped in the traditions and culture. I accept the principal claimant’s assertion that her in-laws, even though urbanites, uphold the rural and family traditions such as FGM.

[30]     Therefore, based on all the evidence before me, I find that the principal claimant and the minor female claimants will face a serious possibility of persecution if forced to return to Nigeria, especially since her father-in-law is motivated and has threatened the principal claimant of dire consequences and of forcibly taking away the minor female claimants to subject them to FGM. I find that their fears are indeed well-founded.

[31]     I now turn my attention to the claims of the associate claimant and the minor male claimant.

[32]     I find, on a balance of probabilities, that both of them face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

[33]     The associate claimant’s father threatened him and his family of harm of he did not agree to uphold the family and Yoruba tradition of subjecting the minor female claimants to FGM. After the principal claimant and the minor claimants left Nigeria, the associate claimant’s father attempted to have him kidnapped, even though the associate claimant had changed his place of residence and moved to another state without informing anyone about it. This is indicative of the agent of persecution’ s motivation and ability to reach the claimants if they are forced to return to Nigeria. These threats of harm continue unabated through the claimants’ relatives in Nigeria.

[34]     Therefore, based on all the evidence before me, I find, on a balance of probabilities, that the associate claimant and the minor male claimant will face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

State Protection

[35]     I find that adequate state protection would not be reasonably forthcoming in this particular case.

[36]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward [1993] 2 S.C.R. 689).

[37]     The principal claimant stated that she will not be able to seek police protection in Nigeria because the issue of FGM is considered private, in which the police do not intervene.

[38]     Objective evidence states that authorities often do not take complaints about FGM seriously. There are no reported instances of any prosecutions brought under federal anti-FGM legislation since its introduction in 2015. A recent study conducted by UNFPA and UNICEF does not list any arrests, cases, or convictions for FGM in Nigeria.viii

[39]     Objective evidence also states that there are reports which indicate that it remains extremely difficult for women and girls to obtain protection from FGM due to community support for these practices, the attitude of police, and treatment by the police of FGM as a community or family matter.ix

[40]     Finally, I quote the United Kingdom Home Office report, which indicates that the police may be discriminatory in their treatment of victims of ritual practices, including FGM, and that women often do not report such practices to the police due to a lack of trust. Police themselves can be part of the culture and thus fail to treat such practices as criminal.x

[41]     The objective evidence discussed above establishes that FGM is considered a private matter in Nigeria. It is a prevalent practice in the country, thereby influencing the response of the police as not taking such acts seriously and thereby failing to provide protection to victims or potential victims of FGM and gender-based violence. Therefore, I find that the claimants will not be able to access adequate state protection in Nigeria and that the presumption of state protection has been rebutted.

Internal Flight Alternative

[42]     The final issue is whether the claimants have a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, I must assess whether there is any location in Nigeria in which the claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.xi

[43]     The agent of persecution in this case is the associate claimant’s father, who is extremely motivated to pursue the claimants in order to fulfill the long-standing family and Yoruba tradition of subjecting the minor female claimants to FGM. He has demonstrated through the kidnapping attempt of the associate claimant that he has the motivation and the reach to locate them within Nigeria.

[44]     Therefore, for reasons similar to those of state protection and the motivation and ability of the agent of persecution to locate the claimants, I find that they do not have a viable internal flight available in Nigeria.

CONCLUSION

[45]     For the reasons above, I conclude that the principal claimant and the minor female claimants are Convention refugees under section 96 of IRPA. Accordingly, I accept each of their claims.

[46]     For the reasons above, I conclude that the associate claimant and the minor male claimant are persons in need of protection within the meaning of section 97 (1)(a) or (b) of IRPA. Accordingly, I accept each of their claims.

(signed)  Sandeep Chauhan

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

ii Exhibit 2.

iii Exhibit 1.

iv Exhibit 3, National Documentation Package (NDP), Nigeria, 16 April 2021, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017. NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

v Exhibit 3, NDP, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017.

vi Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

vii Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGAI06183.FE.

viii Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

ix Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGA 106183.FE. NDP, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

x Exhibit 3, National Documentation Package, Nigeria, 16 April 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

xi 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.).

Categories
All Countries Nigeria

2021 RLLR 5

Citation: 2021 RLLR 5
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2021
Panel: David Jones
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-00847
Associated RPD Number(s): VC1-00848, VC1-00849, VC1-00850
ATIP Number: A-2022-00210
ATIP Pages: 000195-000201

DECISION

This transcript constitutes the member’s written reasons for decision.

[1]       MEMBER: So, we are now on the record. So, this transcript constitutes the Member’s written reasons for decision, as the decision was not given orally at a hearing.

[2]       This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada of the claims of the principal claimant, XX XXXX, her adult son, XX XXXX, her adult daughter, XXXX XXXX, and her minor son, XXXX XXX, who are all citizens of Nigeria seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The principal claimant was appointed as a designated representative for her minor son. I have also reviewed and applied the chairperson’s guideline on women refugee claimants fearing gender-related persecution and the chairperson’s guideline on child refugee claimants’ procedural and evidentiary issues.

Allegations

[3]       The claimants fear risk to their lives from the principal claimant’s husband’s former business partner, namely a XXXXXXXX (ph), if they were to return to Nigeria. During the hearing, the principal claimant also testified that she feared that her husband’s family would harm her if she returned because they believe that she is responsible for his disappearance. The female claimants also raised fears of being — of persecution because of their gender if they were to return.

[4]       Details of the claimants’ allegations can be found in the principal claimant’s Basis of Claim form and attached narrative, including the amendments which are found at Exhibit 7 and 8. The following is a summary of their allegations and testimony. The principal claimant and her husband were married in 2002 and they had five children together. Three of the children are part of this claim. The principal claimant’s husband had his own business XXX and XXXX XXXXX XXXX. In XXX 2017, the principal claimant’s husband received a large contract and he needed to borrow XXXXXX naira from his associate XXXXXXXXX to in order to pay for the XXXXX. Around XXX 2017 the principal claimant’s husband came home and said that the man he was to buy the XXXXX from had collected payment and had now disappeared, and that he was afraid of XXXXXXXX. In XXX 2017, XXXXXXXXX and some thugs came to the claimants’ home and demanded money. The principal claimant’s husband was beaten up and asked them for two months to pay back the money. After the men left, the principal claimant’s husband went to the police but they just accused the husband of trying to steal the money. A month later, the principal claimant’s husband and their oldest son were beaten up by some thugs on their way home. They were told that if XXXXXXXXX did not get his money soon they would both be killed. The principal claimant’s husband was scared and he and the eldest son left a few days later. The principal claimant has only received one call — phone call from them, which occurred a few days after they left, and her husband apologized for leaving her and the other children. The principal claimant started receiving threatening phone calls at home after her husband left, saying that her husband should pay or else.

[5]       In XXXXX 2017, XXXXXXXX and some thugs appeared at the claimants’ house asking for the husband. When the principal claimant said that he no longer lives there, they became angry and the claimants were all blindfolded and put into a van. They were taken to an abandoned warehouse. The principal claimant was told they would be released if her husband turned himself in or repaid the debt. The claimants were only fed one meal a day. On the third day, the principal claimant was taken away from where her children were held and she was raped by three men. The claimants were beaten daily. On the sixth day the principal claimant’s youngest child XXXX was crying and he would not stop. One of the men started beating XXXX, and XXXX became quiet and stopped moving. The man told the principal claimant that XXXX was dead, and they took him away. On the 10th day, the claimants were alone in the warehouse when they heard a noise outside. They started shouting and some hunters broke down the door and untied them. The hunters took them — oh, sorry, told them where to go to the police station, and they went there and made a report. Afterwards, the claimants went to a chemist for treatment and then they went to the church for help. The claimants stayed at their church until they left Nigeria. A few days later, the principal claimant heard from her neighbour that some men, including XXXXXXXXXX, had come to their house with the police looking for the claimants and saying that they had stolen some money. The principal claimant called the police, and they said there is no report on file and that they had probably made the whole thing up. The claimants already had a valid US visa from a planned holiday in 2016 that never happened, and with the help of their neighbour, who retrieved their passports, and their church, who arranged for the plane tickets, the claimants left Nigeria on XXXXXXX, 2017. On XXXXXXX, 2017 the claimants arrived in the US, and three days later they made their way to Canada. In XXXX 2018, the claimants applied for refugee protection.

Determination

[6]       I find that the claimants are persons in need of protection.

Analysis

Identity

[7]       The claimants’ identities as citizens of Nigeria have been established on a balance of probabilities by their Nigerian passports, located at Exhibit 1.

[8]       The allegations likely support a nexus to a Convention ground for the claimants, including, for the female claimants, a nexus to their membership in a particular social group based on their gender, but given my determination, I find it unnecessary to assess this claim under s. 96.

S. 97 Analysis

[9]       I find that the claimants are persons in need of protection, as their removal to Nigeria would subject them personally to a risk to their lives, to cruel — or to a risk of cruel and [inaudible] punishment under subsection l(b) of the IRPA.

Credibility

[10]     For the reasons below, I find that the adult claimants are credible witnesses. In making that finding, I am relying on the principle that a claimant who affirms to tell the truth creates the presumption of truthfulness unless there are reasons to doubt their truthfulness. In this regard, the principal claimant provided the vast majority of the testimony, as the other adult claimants were minors at the time of the incidents. The claimants all had some difficulties with details, including dates, during their testimony. As said, I do not make a negative credibility finding, given the personal characteristics of the claimants. The principal claimant never completed primary school. She is illiterate, and there is a XXXXXX report at Exhibit 5 that describes the principal claimant as suffering from XXXX that creates cognitive problems for her, including inability — an inability to retrieve specific details of her past, including dates. The other adult claimants, as mentioned before, were minors during the events that occurred. Given the claimants’ particular circumstances and Jack of sophistication, I make no negative credibility findings based on their difficulties with some of the details, including dates. While the adult claimants who testified had some difficulties, as noted above, in the end, their testimony was consistent with their Basis of Claim forms, supporting documents, and each other.  The claimants were able to clearly describe their fears for returning. to Nigeria. The principal claimant described details of how they escaped the warehouse and their travel back to the church. She also described the people she has been in contact with since leaving Nigeria, who have told her about how her agent of harm is continuing to pursue them. The claimants were all able to directly respond to questions asked.  There were no relevant inconsistencies in the claimants’ testimony or contradictions between their testimony and the other evidence. I find that the claimants who testified were credible witnesses.

[11]     The claimants also provided documents to support their claim. These documents can be found in Exhibits 5 through 2.11. They include, at Exhibit 5, photographs of the claimant’s family including XXXX. Exhibit 7 contains documents such as a birth certificate for XXXX. I have no reason to doubt the genuineness of these documents and since they relate to significant part of the claimants’ allegations, the unfortunate loss of their son, I put significant weight on these documents to support their allegations and overall claim. The claimants also provided some letters of support from different people in Canada. During the hearing, I asked the principal claimant why she did not provide letters of support from anyone in Nigeria, such as her neighbour. The principal claimant testified that she had asked people to provide letters and had expected them to come. She had also followed up with them when they didn’t arrive, and she was told that they had been mailed. These letters never arrived in time for the hearing. I accept the claimants explanation, as the documents are outside of her control, and she has made reasonable efforts to try and obtain them. As such, I make no negative credibility finding as a result.

[12]     I also find the claimants have a subjective fear of returning to Nigeria even though they first went to the US before coming to Canada and make a claim. The principal claimant testified that her son had found a video showing Nigerian claimants coming to Canada, and given the Trump administration at the time, they decided to come to Canada to claim protection. I accept this explanation, especially given the claimants only spent three days in the US prior to coming to Canada, and I find that the claimants have a subjective fear of returning to Nigeria.

Country Condition Evidence

[13]     I find that the country condition documents support the claimants’ fears of returning to Nigeria. As background, the 2020 US Department of State report in item 2.1, the national documentation package for Nigeria found in Exhibit 3, describes numerous human rights concerns in the country, including unlawful and arbitrary killings by both governments and non-state actors, forced disappearances by government, terrorists, and criminal groups, torture in cases of cruel, inhumane, or degrading treatment or punishment, arbitrary detention by government and non-state actors, serious acts of corruption, trafficking in persons, and inadequate investigation and accountability for violence against women. A 2020 report on Nigeria’s security situation found at item 7.7 indicates that organized criminal forces in the southern and middle parts of the country committed abuses such as kidnappings, that while the level of violence declined in 2009, it had been — it has been rising since then. A 2020 crime and safety report found at item 7.28, while directed at a US audience, states that, and I quote, “Crime is prevalent throughout Nigeria. Most crime directed towards US travellers and private security entities in the southern Nigeria seeks financial gain. US visitors and residents have been victims of a wide range of violent crime, including armed robbery, assault, burglary, carjacking, rape, kidnapping, and extortion. The most commonly reported crimes are armed robbery, kidnap for ransom, and fraud,” end quote. Other reports in the NDP, for example, item 7.37, also describe the prevalence of financially motivated kidnappings throughout Nigeria. The claimants also provided three articles, found in Exhibit 4, that describe the risk — sorry, the rising risk of kidnappings throughout Nigeria.

[14]     Numerous reports in the national documentation package also indicate that discrimination and violence against women is prevalent in Nigeria. See, for example, items 1.4, 1.8, 2.1, 2.9, 5.1, and 5.3. For example, a 2019 OECD report found at item 5.1 describes how Nigeria has taken steps to reduce gender­ based violence. However, the report states that, and I quote, “Despite these national efforts, violence against women is endemic in Nigeria,” end quote. This is also indicated in the Australian Department of Foreign Affairs reported in item 1.8, that states that, and I quote, “Women and girls frequently experience gender-based discrimination and violence in Nigeria. Nigeria remains a highly patriarchal society and cultural traditions, including forced child marriage, female genital mutilation, and so-called widowhood practices,” end quote.

[15]     I find on a balance of probabilities that the agent of harm has targeted the claimant as a result of a debt incurred by the principal claimant’s husband. I further find on a final balance of probabilities that the debt has not been repaid, and as such, it has created a risk for the claimants that is not faced generally by others Nigeria. Finally, given that the debt is still unpaid and the principal claimant’s testimony that she has been advised by people including her former neighbour in Nigeria that XXXXXXX is continuing to look for the claimants, I find that the claimants face an ongoing risk if they were to return to Nigeria. As such, I find on a balance of probabilities that claimants face a personalized risk to their lives that is not faced generally by others in Nigeria.

State Protection

[16]     With respect to state protection, a state is presumed capable of protecting its citizens, and a claimant must establish on a balance of probabilities, through clear and convincing evidence, that a country’s protection is inadequate. Simply asserting a subjective belief that state protection is not available is not enough to rebut the presumption. The more democratic a state’s institutions, the more a claimant must do to exhaust the options available to them. As discussed below, I find that the claimants have rebutted this presumption.

[17]     The objective evidence indicates that while the Nigerian government has taken steps to legislate protection, there remains no adequate state protection available for women fleeing gender-based violence. For example, a 2020 US Department of State report found at item 2.1 states that, and I quote, “Police often refuse to intervene in domestic disputes or blame the victim for provoking the abuse,” end quote. That report lists one of the significant human rights issues in Nigeria as the inadequate investigation and accountability for violence against women. In addition, the 2018 DFAT report at item 1.8 indicates that while Nigeria passed the Violence against Persons Act that criminalized sexual violence and provided support for domestic violence victims, that the government’s shelters are poorly equipped and do not provide adequate protection. Finally, a 2017 corruption report found at item 7.11 indicates that corruption is pervasive throughout all institutions in Nigeria. The report indicates the judicial system is perceived as corrupt and bribes to obtain favourable judgments is common, that almost — the report also indicates that almost all Nigerians believe that the police are corrupt, and the police are also considered very unreliable in enforcing the law, and that police officers continue to operate with impunity. This lack of adequate state protection can be found elsewhere in the national documentation package, including at the items noted previously. [inaudible] in the response — sorry, this is also shown in the response that the principal claimant received from the police when she tried to follow up on the two reports she made in person and they denied having any reports [inaudible]. Based on the evidence, I find on a balance of probabilities that there is no operationally effective state protection available to the claimants in their circumstances.

Internal Flight Alternative

[18]     The test for internal flight alternative is well-established. I must be satisfied that one, the claimant would not face a serious risk of — sorry, face a serious possibility of persecution or be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual punishment in the proposed internal flight alternative, and two, that conditions in that part of the country are such that it would be objectively reasonable in all the circumstances, including those particular to the claimants, for them to seek refuge there. For the reasons below, I find that the claimants do not have an internal flight alternative.

[19]     The issue of whether Abuja would be a viable internal flight alternative for the claimants was identified at the start of this hearing. The principal claimant testified that she would be at risk in Abuja because of Boko Haram, being unable to obtain employment as a single mother, and that XXXXXXX was able to locate the claimants — or would be able to locate the claimants through his connections with the police. XXXX also described fearing Boko Haram because he is a practicing Christian and described how he would be unable to find work or accommodations. Finally, XXXXX described her fears based on how women are treated in Nigeria

[20]     The country condition documents support the claimants’ belief that it would not be reasonable for them to relocate to another part of Nigeria, including Abuja. For example, a 2019 response to information report at item 5.9 indicates that single women may encounter difficulties, including with respect to education, employment, and housing.  With respect to housing, the report indicates that Nigeria has a lack of adequate housing, that prejudice exists against women, that landlords reject — that causes landlords to reject their applications. With respect to housing in Abuja, the report indicates that there is a deficit of 600,000 houses, and the report quotes a source who states that, and I quote, “The majority of women without support from male counterparts or family members have to engage in commercial sex work in order to pay for their rent,” end quote.  The report also indicates that women, particularly unmarried women, experience discrimination with respect to economic opportunities, wages, and conditions of work. It quotes two sources who indicate that female heads of household will be subject to sexual exploitation. Further, the report indicates concerns with the ability of women from out of state accessing public services, and that women not from the state would have to be married or reside in state for over 10 years to be eligible to access government welfare services. [inaudible] also states that the Nigerian government has no general support for women in need. Finally, the claimants are Christian, and a response to information request found at item 12.5 indicates that violence against Christians from Boko Haram occurs in Abuja and that Boko Haram has attacked churches, masques, and public spaces in Abuja. The claimants also provided, at Exhibit 4, a Human Rights Watch report that indicates the challenges faced by people trying to relocate to cities where they are not originally from, including the discrimination they face when it comes to education and employment.  As noted previously, the principal claimant did not complete primary school. The other adult claimants have not completed high school. None of the claimants have significant work experience. The principal claimant has worked as a XXXX before leaving Nigeria, and XXXX has started working at an XXX XXXXX, but his experience is minimal. Given the country conditions noted above, I find that it would be objectively unreasonable in their particular circumstances for the claimants to relocate to Abuja or elsewhere in Nigeria. Given my finding under the section — second prong of the test, I find it unnecessary to consider the first prong. Accordingly, the claimants do not have a viable internal flight alternative available to them.

Conclusion

[21]     For the reasons above, I find that the claimants are persons in need of protection within the meaning of s. 97(1)(b) of the Immigration and Refugee Protection Act, and accordingly the Board accepts their claim.

(signed)    David Jones

– – – – – – – – – – REASONS CONCLUDED – – – – – – – – – –

Categories
All Countries Zimbabwe

2021 RLLR 4

Citation: 2021 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: May 5, 2021
Panel: Meredith Rose
Counsel for the Claimant(s): Johnson Babalola
Country: Zimbabwe
RPD Number: TB9-15167
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000133-000135

DECISION

[1]       MEMBER: All right. So, this is the decision for XXXX XXXX XXXX. The file number is TB9-15167. Now, I have considered your testimony, and the other evidence in the case, and I am ready to render my decision orally.

[2]       Now, you are claiming to be a citizen of Zimbabwe, and claiming refugee protection pursuant to s. 96 and 97 of the Immigration and Refugee Protection Act, and today, I do find that you are a Convention refugee for the following reasons.

[3]       Now, the full allegations in your claim are set out in the Basis of Claim form, as well as the amendments. To summarize those, you allege a fear of persecution as a result of, first of all, your perceived political opinions as a member of the opposition, and, you know, those are your actual political opinions as well, as you have now joined the MDC, and, in your testimony, you have also alleged that you have supported the MDC. You allege that there is no state protection for you, or any internal flight alternative.

[4]       Now, your personal identity as a citizen of Zimbabwe has been established by the testimony, as well as the supporting documents, primarily, the certified copy of your passport, found in Exhibit 1. So, I do find on a balance of probabilities that identity and country of reference have been established.

[5]       Now, your testimony today was generally credible. There were no significant inconsistencies or discrepancies in your testimony today, and your testimony about the MDC is consistent with the documentary evidence. You testified in some detail about the history, and the current status of the MDC, you spoke quite knowledgably about the current government, and you also testified about your activities here in Canada, and you were able to elaborate on the information in your Basis of Claim form. While you have previously maintained a very low profile in terms of your political activities, I do accept your testimony about what you knew to be the risks about being a vocal supporter of the political opposition, and so, that did limit your participation when you were in Zimbabwe. So, I do accept that you were genuinely a supporter of the MDC, and your family also has links to the MDC, as your uncle was quite high-profile within the party. I also have a sample of your activities on social media, and that includes the post on Twitter that was commented on by the leader of the MDC party, Nelson Chamisa. This does demonstrate an ongoing engagement on social media, where you are clearly expressing your opposition to the regime in Zimbabwe.

[6]       In addition, there is also supporting documents, which include your MDC membership card and support letter from the MDC here in Canada, as well as a medical report, and affidavits, which are consistent with, and corroborate, your allegations in your Basis of Claim form. So, I did find your testimony was very straightforward, and you did not elaborate, or try to embellish your claim in any way. So, I accept what you have alleged in your testimony, and in your Basis of Claim form, and I find you have a subjective fear of return to Zimbabwe.

[7]       I do find that there is a link between what you fear and one of the five Convention grounds, specifically, your political opinions, and so this claim has been assessed under s. 96.

[8]       Now, looking at the country condition documents, the information in there indicates that the ZANU-PF government does continue to crack clown on dissenting voices. Authorities routinely suppress the right to freedom of association and peaceful assembly using lethal and excessive force to disperse peaceful demonstrations. Civil society space is continuing to shrink as a consequence. State security agents continue to use excessive force in dispersing protests and assemblies, opening fire on protesters. So, the information in the NDP also corroborates your allegations about what occurred to you in XXXX of 2019, so, during nation-wide protests in XXXX XXXX XXXX of 2019, following the announcement of the fuel price increase, security forces responded with lethal force, killing at least 17 people, shooting and injuring 81 people, and arresting over 1,000 suspected protesters during door-to-door raids. Following the protests, security forces rounded up and detained hundreds of people, many of whom brought before courts on charges of public violence and criminal nuisance.

[9]       With respect to your social media activities, the information in the NDP also confirms that the government is intolerant of critical online commentary and activism, often invoking vaguely written laws to arrest users. Numerous individuals were arrested for their activities online, and self-censorship remains common among Zimbabweans. The arrest of human rights defenders and opposition figures over their online activism, as well as the government’s threatening statements about posting critical content, increased fear, and inhibited expression, according to local observers. So, the documentary evidence therefore does clearly establish in Zimbabwe, political opponents face serious, sustained, and systemic human rights abuses, as well as threats to free political expression, that cumulatively amount to persecution. So, I do find that you have established a well-founded prospective risk of being subject to a serious risk of persecution if you return to Zimbabwe.

[10]     Looking at the issue of state protection, or internal flight alternative, as the agent of persecution in your particular case is essentially the state, or the supporters of the ruling regime, I do not find that state protection would be reasonably available to you, and, as the government of Zimbabwe does remain in control of its territory, there is nowhere else in Zimbabwe you could safely reside. So, there is no internal flight alternative available for you.

[11]     So, based on all of this evidence, I do find you to be a Convention refugee, and your claim is therefore accepted.

[12]     Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries South Africa

2020 RLLR 3

Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068

REASONS FOR DECISION

INTRODUCTION

[1]       The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The principal claimant acted as the designated representative for the two minor claimants.

[3]       Throughout the proceeding and in the decision-making process, the Panel applied the

Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.

DETERMINATION

[4]       The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.

[5]       The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.

ALLEGATIONS

[6]       The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.

[7]       In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.

[8]       The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.

[9]       The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.

[l 0]  The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.

[11]     The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.

[12]     The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.

ANALYSIS

Identity

[13]     The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3

Nexus

[14]     The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.

Credibility

[15]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4

[16]     The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5

[17]     The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.

[18]     The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.

[19]     According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.

[20]     Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7

[21]     Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.

State Protection and Internal Flight Alternative

[22]     The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:

“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8

[23]     Tab 5.7 of the NDP further reports that police do not take GBV seriously:

“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9

[24]     The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:

“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10

[25]     Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.

[26]     Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.

CONCLUSION

[27]     Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.

DECISION

[28]     The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.

            Nalong Manivong      

            18 January 2021         

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).

2 Document 2.1 – Basis of Claim Form.

3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;

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

5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.

6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.

9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

Categories
All Countries Uganda

2021 RLLR 2

Citation: 2021 RLLR 2
Tribunal: Refugee Protection Division
Date of Decision: May 12, 2021
Panel: Suraj Balakrishnan
Counsel for the Claimant(s): Johnson Babalola
Country: Uganda
RPD Number: TB9-27084
Associated RPD Number(s): N/A
ATIP Pages: 000045-000052

REASONS FOR DECISION

[1]       The claimant, XXXX XXXX alleges that he is a citizen of Uganda, and is claiming refugee protection in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

DETERMINATION

[2]       Having considered all of the evidence, the panel finds, on a balance of probabilities, that the claimant has established that he would face a serious possibility of persecution in Uganda because of his religion.

ALLEGATIONS

[3]       The specifics of the claim are set out in the narrative of the claimant’s Basis of Claim Form, as amended.1 The following is a summary of the claimant’ s allegations.

[4]       The claimant alleges to be a citizen of Uganda. He fears being persecuted by the Tabliq, a fundamentalist faction of Ugandan Muslims, because of his Christian proselytization efforts.

IDENTITY

[5]       The claimant’s personal identity and nationality have been established, on a balance of probabilities, through his testimony, as well as documentation filed; namely, a certified true copy of his Ugandan passport.2

NEXUS

[6]       The panel finds that there is a nexus between the harms that the claimant fears and his religious views and practices. The claim will therefore be assessed pursuant to section 96 of IRPA. The test under section 96 is whether there is a serious possibility of persecution should the claimant return to Uganda and the panel has found that the claimant has met that test.

CREDIBILITY

Identity as a Christian

[7]       When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. The claimant testified in a detailed manner consistent with his BOC about growing up as a Christian and becoming more interested in Christianity during his university days in the United Kingdom. The claimant testified that he became more interested in Christianity in the UK because he would encounter Muslims proselytizing, and he wanted to learn more about Christianity so that he would be able to defend his faith in these discussions.

[8]       The claimant was asked basic questions about Christianity, including the most recent church service he attended, the contents of the sermon, his favorite story from the Bible, and Easter. The claimant’s responses were very detailed. The claimant also provided a copy of his Certificate of Baptism from XXXX XXXX XXXX3, as well as a supporting letter form XXXX XXXX XXXX XXXX in Canada.4 The panel finds, on a balance of probabilities, that the claimant is a genuine practicing Christian.

Proselytism and Incidents

[9]       When the claimant returned to Kampala, Uganda, he went to a park on three occasions with a friend during May of 2019 where Muslims were proselytizing. On the first visit to the park, the claimant shared his views of Christianity with two of the Muslim proselytizers who were old friends of the claimant’s friend. The claimant did not sense any hostility from the two Muslim proselytizers; they shared a ride back to their respective homes as they had to go in the same direction. On his subsequent visit to the park, the claimant, in his efforts to defend and spread Christianity to the same two Muslim proselytizers, criticized, among other things, the Prophet Muhammad. In response, the Muslim proselytizers became angry and threatened to kill the claimant for insulting the honor of the Prophet Muhammad. The claimant and his friend left the park and decided to visit the park on another day so that they could preach to different Muslim proselytizers. On a third visit to the park, five or six Muslim proselytizers were expressing angry comments and threatening the claimant.

[10]     After his last effort to proselytize, the claimant testified that several incidents took place. First, his security guard informed him of two people behaving suspiciously near the claimant’s home. While the claimant was briefly away in Nigeria to attend a Christian service that he believed would bless him for his personal safety, his mother informed him of an acid attack near her home that she believed, after speaking to others in the area, was an attack intended for the claimant and carried out by the Tabliq. The claimant returned to Uganda and hid in his mother’s home, whereafter there were two additional incidents, including finding a padlock at his mother’s home tampered with and hearing some commotion outside his mother’s home along with Islamic chants. His friend later informed him that these were attempts made by the Tabliq.

[11]     The claimant’s testimony about his proselytization efforts was detailed, consistent with his BOC, and his responses to matters not set forth in his BOC was candid. In particular, the claimant was very detailed in testifying about what he said in his efforts to proselytize. The claimant’ s testimony about the incidents that followed was consistent with his BOC and somewhat detailed, and the claimant was emotionally expressive in his testimony.

[12]     The claimant provided supporting documentation to corroborate his proselytization efforts and the incidents that ensued, including an affidavit from his mother,5 attesting to the incidents that occurred near her home, as well as an original physical copy of a newspaper article in the newspaper titled XXXX XXXX,6 which contains the claimant’s photo and states, apparently based on information provided by the claimant’ s relatives, that the claimant insulted the Prophet Muhammad and has fled Uganda in fear of retaliation from the Tabliq. The claimant testified that the newspaper is circulated nationally, and that the author of the article likely found out about his situation through his mother. The panel finds, on a balance of probabilities, that these documents help corroborate the claimant’s allegations regarding his proselytization efforts and the incidents that followed.

[13]     Specifically, the panel finds, on a balance of probabilities, that the claimant engaged in proselytization efforts; that in the course of proselytizing, he expressed views critical of Islam and the Prophet Muhammad; and that he faced retaliation from the Tabliq.

[14]     Given the credible testimony by the claimant, as well as the corroborating documentation cited above, the panel finds the claimant to be a credible witness. Therefore, the panel believes what the claimant has alleged in support of his claim and finds that his subjective fear of persecution due to his religion is established, on a balance of probabilities.

OBJECTIVE BASIS

[15]     The objective documentary evidence in the national documentation package is limited and mixed as it relates to problems faced by Christians in Uganda in connection with Islamic religious extremism. One article describes the Tabliq as a fundamentalist faction of Ugandan Muslims, but notes that “[d]ifferent religions do not only coexist but even cooperate” in Uganda.7 Another article, however, notes that Uganda ranks “just outside the top 50 countries in which Christians are persecuted”8 and reports that “Christian groups living in areas affected by the presence of Islamic extremists face persecution.”9 The article documents several instances of Muslim who convert to Christianity being attacked.10 While the claimant himself is not a convert from Islam to Christianity, he was trying to convert Muslims to Christianity.

[16]     The claimant provided numerous news articles documenting attacks by Islamic religious extremists against Christians, including for expressing views that are offensive to some Muslims and for Christian proselytization.11 These articles document attacks from various regions in Uganda. The claimant also provided an article from the Africa Center for Strategic Studies, which describes the Tabliq as being religiously fundamentalist and having connections to terrorism.12

[17]     The panel finds, on a balance of probabilities, that while ordinary Christians do not face persecution in Uganda, there is an objective basis to the claimant’s fear of returning to Uganda. This is because (i) the country conditions documents indicate that there are Islamic religious extremists in Uganda who attack Christians who express views offensive to Islam and for Christian proselytization, (ii) the claimant was involved in proselytizing to Islamic religious extremists and the nature of his proselytization involved expressing views that could be construed as offensive or blasphemous to Islamic religious extremists, and (iii) the claimant’s identity and story have been publicized in a widely circulated newspaper. Accordingly, the claimant has a well-founded fear of persecution in Uganda.

STATE PROTECTION

[18]     In general, there is a presumption that state protection is available to the claimant and this presumption must be rebutted with clear and convincing evidence. Here, the claimant testified to going to the police after his security guard informed him of two people behaving suspiciously near his home. The claimant testified that the police requested a bribe and suggested that the claimant brought this upon himself by disturbing Muslims.

[19]     The claimant submitted country conditions news articles indicating that the police in Uganda are generally viewed as being very corrupt, including due to bribery.13 In the national documentation package, the Uganda 2020 Crime & Safety Report by the Overseas Security Advisory Council notes that “[d]espite efforts to professionalize and modernize the force, the UPF still struggles with a lack of resources, corruption, and regular reports of human rights violations.”14 Freedom House provides Uganda with a score of 1 out of 4 in each of the subcategories under Rule of Law, including whether due process prevails.15 The United States Department of State notes numerous issues with policing in Uganda, including bribery.16

[20]     The panel finds, on a balance of probabilities, that the claimant has rebutted the presumption of state protection in Uganda. This is because the claimant testified in a detailed and candid manner about trying to obtain state protection and being asked for a bribe, and the country conditions cited above indicate that such corruption is a serious issue in Uganda.

INTERNAL FLIGHT ALTERNATIVE

[21]     The panel considered whether a viable internal flight alternative exists for the claimant, particularly in Mbarara, a large city located approximately 270 kilometers away from Kampala, where the claimant engaged in proselytization and faced retaliation.

[22]     The claimant testified that proselytization of the kind of he engaged in is an important part of his religious practice that he would continue to engage in if he were returned to Uganda. Given the claimant’s previous proselytization efforts and his very detailed and expressive testimony about his previous proselytization efforts, the panel finds, on a balance of probabilities, that the claimant would continue to proselytize in the manner he did in the past if returned to Uganda. The claimant further testified that he is active on social media, which was supported by a copy of his Facebook activity log.17 According to the claimant, this could make it easier for those pursuing him to track him down. The claimant also testified, in a manner consistent with his BOC, that his mother has received threats directed toward the claimant.

[23]     The panel finds, on a balance of probabilities, that the claimant would face a serious possibility of persecution throughout Uganda. This is because (i) the country conditions documents indicate that attacks by Islamic religious extremists on Christians, including for Christian proselytization, occur in various regions across the country; (ii) the claimant testified that proselytization of the kind he engaged in is important to his religious practice, which suggests that the claimant could draw adverse attention to himself from Islamic religious extremists, including those who are already pursuing him; (iii) the claimant is active on social media, which could make it easier for him to be tracked down; (iv) the claimant’s identity and story, including the allegation that he insulted Prophet Muhammad, have been publicized in a newspaper; and (v) the Tabliq group appears to remain interested in the claimant. These factors indicate that the religious extremists would have the means and motivation to pursue the claimant.

CONCLUSION

[24]     Having considered all of the evidence, the panel finds that there is a serious possibility of persecution for the claimant in Uganda if the claimant returns to Uganda. The panel finds the claimant to be a Convention refugee and accepts his claim.

(signed) Suraj Balakrishnan  

May 12, 2021 

1 Exhibits 2 and 9.

2 Exhibit 1.

3 Exhibit 7.

4 Id.

5 Id.

6 Exhibit 13.

7 Exhibit 3, NDP 30 September 2020, Item 1.4, BTI 2020 Country Report – Uganda. Bertelsmann Stiftung. 2020. 22 September 2020.

8 Exhibit 3, NDP 30 September 2020, Item 12.2, UGA106318.E. Immigration and Refugee Board of Canada. 17 July 2019.

9 Id.

10 Id.

11 Exhibit 7.

12 Exhibit 13.

13 Exhibit 7.

14 Exhibit 3, NDP 30 September 2020, Item 7.2, Uganda. 2020 Crime and Safety Report. United States. Overseas

Security Advisory Council. 22 April 2020.

15 Exhibit 3, NDP 30 September 2020, Item 2.4, Uganda. Freedom in the World 2020. Freedom House. 2020.

16 Exhibit 3, NDP 30 September 2020, Item 2.1, Uganda. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

17 Exhibit 11.

Categories
All Countries Pakistan

2021 RLLR 1

Citation: 2021 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: June 15, 2021
Panel: Rodrick Flynn
Counsel for the Claimant(s): Miranda Lim
Country: Pakistan
RPD Number: TB9-17419
Associated RPD Number(s): TB9-17487
ATIP Number: A-2022-00210
ATIP Pages: 000035-000044

REASONS FOR DECISION

[1]       XXXX XXXX (“the principal claimant”) and his wife, XXXX XXXX (“the female claimant”) (collectively “the claimants”) are citizens of Pakistan and are seeking refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.1

ALLEGATIONS

[2]       The specifics of the claimants’ allegations are set out in the common narrative2 attached to each of the Basis of Claim forms.3 In summary, the claimants indicate that they are bath members of the Ahmadi Muslim faith4 and fear persecution in Pakistan on the grounds of their religion5. The principal claimant was a resident of Italy from XXXX 20056 to XXXX 20197 and was issued an EC Long-Term Residence Permit (“the Permit”) in late 20188 before the claimants carne to Canada on XXXX, 2019.9 After growing up in Pakistan, the female claimant lived in Germany on a student visa from XXXX 2015 to XXXX 2019 on a series of term student visas.10

DETERMINATION

[3]       The panel finds the claimants to be Convention refugees under section 96 of the IRPA, based upon their Ahmadi religion.

ANALYSIS

Identity

[4]       The claimants’ respective identities as citizens of Pakistan are established by the various documents on file11, including a copy of their respective Pakistani passports12 which were submitted into evidence at the hearing.

[5]       The claimants’ religious identities as members of the Ahmadi faith are established, on a balance of probabilities by their credible oral evidence concerning the nature and history of their faith and their participation in religious activities; as well as various documents entered into evidence. These records include:

  • Canadian Ahmadi Certificates13;
  • Ahmadi identity cards;14
  • Ahmadi donation receipts from Canada;15
  • Ahmadi donation receipts from Pakistan;16
  • Ahmadi donation receipts from Italy and Germany;17 and
  • various other confirmations of their participation and recognition in the Ahmadi faith.18

Credibility

[6]       Both of the claimants gave oral evidence at the hearing. Generally, the panel finds them both to be credible witnesses, particularly with respect to their official marital status in Europe; their status in Italy and the EU and the Permit; and the most significant elements of their claims, including the reasons why they had left both Pakistan and Europe and came to Canada.

Well-founded fear of Persecution

[7]       As the panel has accepted the claimants’ respective religious identities as members of the Ahmadi faith, and in view of the clear and consistent objective evidence from the National Documentation Package for Pakistan19 that Ahmadis face persecution on religious grounds throughout Pakistan from both state and non-state actors without adequate state protection, the panel finds that there is a serious possibility of persecution for the claimants should they return to Pakistan.

[8]       The claimants have persuasively testified that they fear persecution and violence in Pakistan from various sources including the Pakistani government and religious extremists. This subjective fear is confirmed pervasively in the objective evidence.

[9]       As summarized by the UNCHR in Item 1.8 of the NDP for Pakistan, at p.46, Ahmadis in Pakistan face systemic discrimination and persecution both state-sponsored and from numerous private actors (including religious extremists as raised in the claimants’ oral evidence).20

“Repressive and discriminatory legislation coupled with State-sanctioned discriminatory practices have reportedly fostered a culture of religious intolerance and impunity. Consequently, members of the Ahmadi community are reportedly left vulnerable to abuse, violence including killings, harassment and intimidation at the hands of members of the community.”

[10]     The British Home Office Report on Ahmadi Muslims21 documents that in 1974, the Pakistani Constitution was amended to declare Ahmadis to be “Non-Muslims“.22 This was followed by a 1984 Amendment to Pakistani Penal Code, which are ” … commonly referred to as the anti-Ahmadi laws“.23

[11]     The objective evidence also records that the systemic state-sanctioned discrimination against Ahmadis is not palliated by correspondingly adequate internal protection. As noted in the aforementioned British Home Office Report at para. 2.5.4:

“The perpetrators of violence against religious and sectarian minorities are rarely apprehended and sentenced. There is a pattern of appeasement amongst the police of, and in some cases collusion with, religious extremists pursuing hate campaigns against the [Ahmadi] community.”24

[12]     Beyond police, the NDP also documents that despite the ostensible goal for the judiciary to be “… the last resort for a persecuted individual” to benefit from the rule of law25, the reality of like in Pakistan is that ” …the judiciary itself sometimes promotes tyranny“.26

[13]     The panel is persuaded, based upon the objective evidence from the NDP, that as members of the Ahmadi faith, the claimants face a serious possibility of persecution on this ground, throughout Pakistan, without adequate state protection.

Exclusion – Article 1E

[14]     The Minister has intervened in this matter in writing. In its “Notice of Intent to Intervene

-Exclusion 1E,”27 the Minister has taken the position that because the principal claimant obtained the Permit in Italy in 2018,28 he is a permanent resident of Italy, who, along with the female claimant, “…enjoy basic rights substantially similar to those of [Italy’s] nationals….”29

[15]     According to the Minister, because of the Permit, the principal claimant has permanent status in Italy and rights substantially similar to nationals so as to warrant their exclusion under 1E. With respect to the female claimant, the Minister has offered that “more likely than not, [the female claimant] already has permanent resident status and/or has access to permanent resident status as she is the spouse of a permanent resident“.30

[16]     According to the Minister, because the claimants both have this status in Italy, the claimants are excluded from refugee protection under the IRPA by operation of s.98 of the IRPA and Article IE of the Convention which read as follows:

“A person referred to in section E or F of Article 1 of the Refugee Convention31 is not a Convention Refugee or a person in need of protection”.32

Article 1E reads:

“This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”.33

[17]     The potential exclusion of the claimants was the principal focus of the hearing. The leading case on exclusion under Article 1E is the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Zeng34 which has been applied by the panel.

Current Status of the Claimants in Italy

[18]     The Minister contends that because the claimants have status in Italy – the principal claimant by the Permit and the female claimant by marriage to the principal claimant- they have rights in Italy which are substantially similar to nationals of that country.

[19]     This determination for each claimant must be made on the evidence.

Current Status of the Principal Claimant in Italy

[20]     The panel is satisfied, on a balance of probabilities, on the evidence before it, that the principal claimant was granted the Permit during 2018. However, the objective evidence of the NDP for Italy35 shows that the status and rights accorded under the permit are lost by a person spending more than 12 consecutive months outside of the European Union.36 Two Response to Information Requests in the NDP for Italy confirm that a Permit is “… voided if the person is absent from Europe for 12 consecutive months”.37 This objective evidence further stipulates that status accorded under the Permit can be revoked if the resident no longer meets the requirements38, such as an annual income requirement.39

[21]     The evidence before the panel is that the claimants have been in Canada (without leaving) since XXXX 2019. Accordingly, based upon this objective evidence, the panel finds, on a balance of probabilities that, at the time of the hearing, having remained out of Italy for over 12 months, the principal claimant’ s status in Italy will have expired.

Status of the Female Claimant

[22]     The Minister’s position is the female claimant acquired status in Italy under the Permit by marriage to the principal claimant. As noted in the Minister’ s Brief:

” … the Minister is of the opinion that the [female claimant] has permanent resident status in Italy via spousal sponsorship”.40

[23]     However, in the panel’s view, this conclusion is not supported, on a balance of probabilities, by the evidence before it. Both the principal claimant and female claimant credibly testified that despite their religious marriage by proxy (from Italy and Germany respectively through the Whatsapp application) in XXXX 2016,41 attempts by the previously-married principal claimant to obtain proof from the Pakistani Consulate in Milan Italy (in the form of a “No Objection Certificate”) that he was free to enter into a civil marriage with the female claimant were refused.42 Similar efforts by the female claimant to register the marriage in Germany were also unsuccessful.

[24]     The evidence before the panel is that the claimants’ marriage has not been officially registered with any European authority, including in Italy. Accordingly, the panel has no evidence before it to demonstrate, on a balance of probabilities, that any benefit would be extended to the female claimant as a spouse; or that there is any overt sponsorship or sponsorship of the female claimant under the Permit by operation of law.

[25]     Accordingly, the panel is not satisfied, on a balance of probabilities, that the female claimant has permanent resident status in Italy or Europe or rights under the Permit.

Previous Status in Italy/EU – Principal Claimant

[26]     The objective evidence from the NDP for Italy43 shows that the Permit, while conveying a wealth of substantive rights44, confers status which is vulnerable to being lost or taken away from individuals such as the principal claimant on a variety of listed grounds.45

[27]     As noted by the Federal Court in Shamlou v. Canada (Minister of Citizenship and Immigration),46 (quoting with approval Lorne Waldman, Immigration Law and Practice) at para. 35:

“If the applicant has some sort of temporary status which must be renewed, and which could be cancelled, or if the applicant does not have the right to return to the country of residence, clearly the applicant should not be excluded under Art. 1E.” [emphasis added].

[28]     In the panel’s view, the objective evidence clearly indicates that the principal claimant’s Permit could be cancelled on a number of grounds,47 including that ” … the bearer no longer fulfills the requirements for its issue”48 including a stipulated income requirement. 49 In the panel’s view, the principal claimant has provided credible evidence of chronic income instability during most of his time in Italy. The panel is satisfied, on a balance of probabilities, that the principal claimant is credible in his testimony s that because of the precarious status of his employment in Italy (comprised mostly by a series of contracts with various enterprises), aside from the issue of his absence (as noted above), he is vulnerable to having the Permit revoked on the grounds that he has not met the requisite income threshold.

[29]     Per Shamlou50, on the totality of evidence, because the Permit is vulnerable to being cancelled on multiple grounds, the panel finds on a balance of probabilities, that the principal claimant did not have status in Italy substantially similar to that of an Italian/EU national.

[30]     Further, as the panel has no evidence before it to indicate that the female claimant was conferred any rights, transitory or otherwise, under the Permit, it finds that she does not have status substantially similar to that of an Italian or EU national.

[31]     Accordingly, the panel finds that the claimants should not be excluded under Article 1E of s.98 of the IRPA.

CONCLUSION

[32]     For the reasons as above noted, the panel finds the claimants to be Convention refugees and accept their claims.

(signed) Roderick Flynn        

June 15, 2021 

1  Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended (hereinafter “the IRPA”).

2 Exhibit 2.1 and 2.2, “XXXX XXXX XXXX XXXX XXXX XXXX, (hereinafter “the

Narrative”)

3  Exhibit 2.1 and Exhibit 2.2.

4 Narrative, para. 1.

5  Ibid., para. 48.

6 Ibid., para. 14.

7 Ibid, para. 46.

8 Ibid, para. 16.

9 Ibid, para. 46.

10 Ibid., para. 35, para. 43-46.

11 Exhibit 4 includes multiple identity documents for both claimants, both photographic and non-photographic, including their National Identity Cards starting at p.66.

12 Exhibit 1.

13 Exhibit 4, p.1.-2.

14 Ibid, p.3.

15 Ibid., p.5-6.

16 Ibid., p.16.

17 Ibid, p.20-31.

18 Ibid, p.37-60.

19 Exhibit 3.1, NDP for Pakistan.

20 Ibid.

21 Ibid, “Country Policy and Information Note. Pakistan: Ahmadi Muslims.

22 Ibid, para. 3.1.6.

23 Ibid, para. 5.1.1.

24 Ibid, para. 2.5.4.

25 Ibid, para. 8.4.11.

26 Ibid.

27 Exhibit 7 (hereinafter “the Brief’ or “the Minister’s Brief’).

28 Narrative, para. 16; Minister’s Brief, para. 4.

29 Minister’s Brief, para. 17.

30 Ibid, para. 20 and 26.

31 Schedule to the IRPA, United Nations Convention on the Status ofRefugees.

32 IRPA, s.98.

33 Ibid.

34 2010 FCA 118 (“Zeng”).

35 Exhibit 3.2, National Documentation Package for Italy

36 Ibid, Item 3.7 “Response to Information Request (March 6, 2015). Italy: The permesso di soggiorno illimitata including its physical characteristics, requirements and procedures to obtain and renew the document, rights of holders of the document”, p.4. See also “Response to Information Request (28 February 2019). Italy: Grounds for revocation of the European Union (EU) residence permit for long-term residents (perrnesso di soggiomo UE per soggiomanti di lungo period also called perrnesso di soggiomo illimitata whether an individual who has lost their permit can apply to have it reinstated.”

37 Ibid, p.4.

38 Ibid.

39 Ibid., p.2.

40 Minister’s Brief, para. 26.

41 Narrative, para. 35.

42 Ibid, para. 37.

43 Supra, note 35.

44 Ibid., p.5.

45 Ibid., Item 3.7, p.4

46 (1995), 32 Imm. L.R. (2d) 135 (F.C.).

47 Supra, Note 44.

48 Ibid, p.5, bull et 3.

49 Ibid, p.2, para. 3.

50 Supra, note 46.

Categories
All Countries Mexico

2020 RLLR 165

Citation: 2020 RLLR 165
Tribunal: Refugee Protection Division
Date of Decision: September 17, 2020
Panel: Elise Escaravage
Counsel for the Claimant(s): Robert J Hughes
Country: Mexico
RPD Number: VB9-07141
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000191-000194

DECISION

[1]       MEMBER: These are the reasons for the decision in the claim of XXXX XXXX XXXX XXXX XXXX XXXXakaXXXX XXXX or the claimant, a citizen of Mexico who is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act the IRPA.

[2]       In rendering my reasons, I have considered and applied the Chairpersons Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution as well as the Chairperson’s Guideline 9 proceedings before the IRB involving SOGIE throughout the hearing and in my decision.

[3]       This claim was heard as part of the remote hearing pilot project via video conference on a secured platform called Microsoft Teams. Ali of the parties present, the claimant, the interpreter, counsel, and myself confirmed that we were alone in our respective location and that we could see and hear the parties clearly.

Allegations

[4]       The claimant detailed her allegations in her basis of claim form which can be summarized as follows. The claimant alleges fear of persecution at the hands of state authorities in Mexico on account of her membership in a particular social group as a transgender woman.

Decision

[5]       I find that the claimant is a Convention refugee pursuant to Section 96 of the IRPA as she has established facing a serious possibility of persecution on account of her gender identity as a transgender woman if she returns to Mexico.

ANALYSIS

Identity

[6]       I find that the claimant’s identity as a national of Mexico has been established by her testimony and the supporting documents provided. Notably a certified copy of her passport at Exhibit 1.

Credibility

[7]       I find the claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner and there were no relevant inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. She did not embellish or exaggerate her claim and was forthcoming when answering my questions even if it did not benefit her claim. She admitted for example that she had not been victim of persecution herself as a transgender woman so she could only speak to what she had learned on the media about the treatment of other transgender women in Mexico. Moreover, I find that the series of photographs she submitted along with support letters and a medical report from her doctor in Canada to corroborate her allegations.

Well-Founded Fear of Persecution

[8]       The claimant testified that she did not feel as a boy for as long as she can remember. At the age of XXXX she was sent away to Tampico, Tamaulipas to go to school. She believes that her parents sent her three hours away from home because they did not agree of her feminine ways and different behavior. To this day her family still refuses to acknowledge her gender, her mother continues to refer to her as him or he and uses her name as at birth XXXX. The claimant has suffered significant hardship throughout her life, including bullying, intimidation, sexual abuse as a child and discrimination in the workplace as an adult. She began her journey to transition at the end of 2018, she was working at the time as an XXXXat XXXX, external to XXXX in Monterrey, Nuevo León. When her boss received her doctor’s note explaining her leave of absence, he spread the news around the company about her gender transition. The claimant suffered severe repercussions, including bullying and intimidation by co-workers and her boss for transitioning to become her real self. Although the claimant started to use the pronouns, she/her only three months ago after starting hormonal treatments in Canada, she has always felt as a woman. The claimant fears to be humiliated, discriminated against, assaulted, or even killed if she return to Mexico as a transgender woman.

[9]       According to the objective evidence that counsel submitted at Exhibit 4, Mexico is said to be the deadliest country in the world after Brazil for transgender persons. Perpetrators of violence, torture, and murder of transgender persons in Mexico benefit from great impunity as most murders go unsolved and are unpunished. As corroborated in the Human Rights Watch report Item 2.3 of the NDP and the SOGIE compilation Item 6.1, the agents of persecution include state authorities and the judiciary system that uses vague legislations to incriminate transgender persons. Transgender women in particular are painted as-, by politicians and policymakers as paedophiles or as a danger to public order. In sum, the objective evidence overwhelmingly points to systemic persecution against transgender persons in Mexico, particularly transgender women which manifests itself in ail spears of society and is perpetrated with impunity by civilians, state authorities, political figures who incentivize hate against transgender persons and members of the judiciary system who manipulate the law to incriminate them. For these reasons I find that the claimant has established an objectively well-founded fear of persecution if she returns to Mexico.

State Protection

[10]     I find that it would be objectively unreasonable for the claimant to seek the protection of the State in this particular case. There is ample objective evidence painting to state authorities, politicians, and policymakers as well as judges and members of the judiciary system as being part of the agent of persecution who persecute, incriminate, torture, and kill transgender persons in Mexico. As such I find that there is clear and convincing evidence that the State is part of the agents of persecution along with civilians who benefit from great impunity. It would not be reasonably forthcoming for the claimant to seek state protection where the State is the agent of persecution. For this reason, I find that the presumption of adequate state protection has been rebutted.

Internal Flight Alternative or IFA

[11]     I have examined whether a viable IFA exists for the claimant. As mentioned above, I find that the State is part of the agents of persecution in this case. The State has effective control throughout the country and there have been accounts of judges using their legislation to incriminate transgender persons as indicated at Item 6.1 of the NDP. As the IFA test fails on the first prong of the test, I find that there is no viable IFA available to the claimant. Consequently, I find that the claimant faces a serious possibility of persecution throughout Mexico.

CONCLUSION

[12]     In light of the proceeding, I conclude that the claimant is a Convention refugee pursuant to Section 96 of the IRPA; accordingly, I accept her claim.

———- REASONS CONCLUDED ———-

Categories
All Countries South Korea

2020 RLLR 164

Citation: 2020 RLLR 164
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: Becky Chan
Counsel for the Claimant(s): (no information available)
Country: South Korea
RPD Number: VB9-05340
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000186-000190

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER:  This is the decision of the Refugee Protection Division in the claim for refugee protection of XXXX XXXX XXXX a citizen of South Korea who claims refugee protection pursuant to Sections 96 and 97 [1] of the Immigration and Refugee Protection Act.

[2]       I have considered the evidence in this case and I am ready to render my decision orally. Written reasons will be sent to you and your Counsel and the written version will be a transcript of what I am saying now.

[3]       I have considered and applied the Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression. I find that you are a Convention refugee as you have a well-founded fear of persecution in South Korea.

[4]       I will summarize your allegations as follows. You fear persecution in South Korea based on your sexual orientation and your gender identity as a bi-sexual transmasculine person. Your assigned gender at birth was female. You are non-binary and you express yourself as masculine. You are attracted to both males and females.

[5]       You disclosed your sexual orientation to your mother at age XXXXorXXXX XXXX. She attempted to kill you and herself first with a kitchen knife and later by jumping off a building you lived in. Both of your parents have rejected you by reason of your sexual orientation and gender identity.  You spent a great deal of time outside of South Korea while you were growing up. You studied in Thailand and the United States. You completed your university studies in Chicago. You travelled to and remained in South Korea during your breaks from school.

[6]       Beginning in 2012 you started hormone replacement therapy and you have been taking testosterone injections since. You physical appearance changed over time and became more masculine as the hormone replacement therapy progressed. You have had romantic and sexual relationships with males and females. You have been in a common-law relationship with a person who identifies herself as pansexual named XXXX (phonetic) for seven years. You lived together in the United States. She is a citizen of Bhutan.

[7]       You face discrimination in employment in South Korea because you are transgender. You physical appearance does not match your assigned gender on your identity document which states that you are female. You encountered sexual harassment and discrimination at work. You also encountered ridicule from medical staff when you sought health care in South Korea.

[8]       You fear that you will continue to endure such a significant level of discrimination that you will not be able to secure employment, access to health care services and to be able to live openly as a transmasculine bi-sexual in South Korea with a basic level of dignity.  You lived for a number of years in the United States on a student visa. When your student visa expired you came to Canada on XXXX XXXX XXXX 2019 and made a refugee claim in XXXX 2019.

[9]       I find that you have established your identity as a citizen of Korea through copies of two of your passports in Exhibit 1. I find that you have provided a significant amount of evidence to establish your gender identity and sexual orientation as a transmasculine bi-sexual. Your passport indicates that your assigned gender if female. A West Coast medical imagining has provided a copy of your pelvic ultrasound in Exhibit 4 at page 1. This corroborates your assigned gender and the documented West Coast medical imagining further corroborates that you are on testosterone therapy.

[10]     You provided numerous letters from many different people you have known through different stages of your transition corroborating your gender identity and your sexual orientation, in Exhibit 4. Many of the authors of these letters identify themselves as sexual minorities. You have corroborated your relationship with XXXX (phonetic) through her letter and her sister’s letter as well as a lease showing that you lived together in Chicago. These documents are in Exhibit 4.

[11]     You provided evidence of your connections with transgender friends in Vancouver and other places. As well as your involvement in the LGBTQ community in Vancouver you have been involved in Rainbow Refugee in Vancouver and the I Belong group an LGBTQ group that is part of a mosaic, a local organization that supports immigrants.  You have also been involved in the local organization called Pride and Art society which organizes the queer arts festival and other events.     I find that you have established that you are transmasculine bi-sexual.

[12]     I find that the fear you face sorry — I find that your fear of societal discrimination and harassment is corroborated by the country condition documents.      Documents in your disclosure in Exhibits 4 and 5 as well as documents in the National Documentation Package demonstrate that transgender persons face a serious level of discrimination in employment, access to health care and various facets of life in South Korea.

[13]     One of the significant hurdle faced by a transgender persons is Korea is the difficulty in legally changing your assigned gender on your national identity documents. The Response to Information Request on the treatment of transgender people, NDP Item 6.2 as well as the Kaleidoscope report NDP Item 6.2 talk about this. While it is possible to change one’s gender legally the requirements have been described by the report of the Kaleidoscope Human Rights Foundation NDP Item 6.1, as being incredibly complex discriminatory and restrictive.

[14]     In 2006 Supreme Court decision gave transgender persons in South Korea the right to be recognized according to their preferred gender. However the Supreme Court drafted a number of restrictive guidelines on when legal change of gender can occur. A transgender person could be recognized according to their preferred gender if the following conditions exist.    The person is an unmarried Korean citizen over 19 years of age with no minor children; has suffered from continued gender diaspora and has the sense of belongingness to the opposite due to being transsexual; after having undergone psychiatric treatment or hormone therapy still wish to receive surgical treatment and alter his or her physical appearance including external genitalia through sexual reassignment surgery; has become sterile as a result of sexual reassignment surgery with zero or extremely remote possibility that they will return to their former gender; does not show indications that he or she filed the application for the purpose of committing a crime or abating the law; and has parental consent. The Response to Information Request also states that sources say that recognition of gender reassignment is only possible after gender reassignment surgeries and sterilization.

[15]     You have indicated that you do not wish to have surgery due to the invasive nature of the procedure and the many risks associated with the procedure. Another impediment you face in having your gender legally reassigned is that you would not be able to secure parental consent. Neither of your parents would be supportive of your petition for gender reassignment. You have no contact with your father at all. You have contact with your mother but she does not accept your sexual orientation or gender identity. You would not likely be able to change your gender assigned legally in South Korea. The test outlined by the court is highly onerous as it requires you to undergo medical procedures against you will including sexual reassignment surgery. I find that this requirement is in itself persecutory.

[16]     Individuals who cannot obtain a legal change of gender are by extension unable to change their gender on their identity documents. In South Korea all persons are issued a national identity card which is essential for securing employment, shelter and various governmental services. Each persons’ national identity number reveals their date of birth and their gender. The identity number is an all purpose lifetime number. It prevents transgender person who do wish to — it prevents persons who do not wish to reveal their gender identity from using legal documents in most areas of society including the labour market, medical institutions and financial institutions.

[17]     I find that you will face a significant level of stigmas in South Korea as you have in the past if you are identified as a female on your identity documents but you present as a male. You have documented the discrimination you face in securing and maintaining employment in South Korea in your Basis of Claim form and the sources in the country condition documents corroborate that the transgender person experience discrimination related to employment in the similar manner that you have.

[18]     According to the Kaleidoscope Foundation report, the LGBTI community continues to suffer significant degree of stigma, abuse, harassment and discrimination.  Marriage of same sex couples remains illegal. The same report states that transgender persons experience physical harassment and assault including rape.

[19]     I find that your fear of persecution has a nexus to a Convention ground of membership in a particular social group as a transmasculine bi-sexual. I find that the level of discrimination you would face in employment, accessing health care and other services as well as the threat of harassment and violence is sufficiently serious to be persecution. You cannot live openly as a transmasculine bi-sexual in Korea without facing a serious possibility of persecution.

[20]     I find that the presumption of state protection has been rebutted by clear and convincing evidence. There is very little legal recognition and protection of the rights of sexual minorities in general in Korea.

[21]     According to the US Department of State report, NDP Item 2.1, no law specify punishment for persons found to discriminate against lesbians, gay, bi-sexual, transgender or intersex persons or provide remedies to victims of discrimination or violence based on sexual orientation. I note also that the military criminal act criminalizes consensual sex between men in the military with up to two years of imprisonment.

[22]     According to the Kaleidoscope Foundation document there is an absence of any anti- discrimination laws to protect LGBTI persons resulting in a failure to protect against widespread discrimination in a range of areas such as employment and health care. The government has failed to provide access and acceptable processes for individuals to legally choose their gender without discrimination or violation of their human rights. The government does not recognize same sex relationships. There is also lack of protection for same sex couples with respect to domestic violence and a lack of equal protection for sexual minorities with respect to sexual assault.

[23]     I find that state protection is not available to you in South Korea.

[24]     I also find that there is no viable internal flight alternative for you in South Korea. There is no objective evidence that a particular part of South Korea would be more safe for you as a transmasculine bi-sexual. I find that you would face a serious possibility of persecution throughout the country.

[25]     For the foregoing reasons I find that you are a Convention refugee and I therefore accept your claim.

— PROCEEDINGS CONCLUDED

Categories
All Countries Colombia

2020 RLLR 163

Citation: 2020 RLLR 163
Tribunal: Refugee Protection Division
Date of Decision: January 4, 2020
Panel: Doug Armstrong
Counsel for the Claimant(s): (no information available)
Country: Colombia
RPD Number: VB9-04639
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000178-000185

— DECISION AND REASONS BY THE MEMBER

PRESIDING MEMBER:

Reasons for decision

Introduction

[1]       I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. A written form of these reasons will be sent to you and your counsel. It will be a transcript of what I am saying now.  The written reasons may be edited for generally readability and references to the applicable case law and the documentary evidence may also be included.

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

[3]       In rendering my decision I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, SOGIE, and also the Gender Guidelines.

Allegations

[4]       You allege that you are a transgender female, where you were born with male sex organs but you identify since 2014 as a woman and you face persecution in Colombia for this reason.

[5]       In 2014, you along with other trans women in Bogota were pressured to smuggle items into prisons and you were beaten when you refused.

[6]       You moved to Tulua and you experienced discrimination there. You were fired from your job in XXXX 2014 when you went to work dressed as a woman.

[7]       In XXXX 2015 you were insulted, beaten and injured in Bogota when you were dressed as a woman and you often experienced verbal abuse.

[8]       You believe there is little effort by the government to protect trans people from discrimination and persecution. You fear persecution if you return to Colombia.

Determination

[9]       I find that you are a Convention refugee as you have established that you face a serious possibility of persecution for reason of your being a transgender woman.

Analysis

Identity

[10]     I find that your identity as a national of Colombia is established by your testimony and the supporting documentation filed, including certified copies of your passport and identity card in Exhibit 1.

[11]     You testified that you prefer to be known as XXXX although you have no identity documents in that name.

Credibility

[12]     I find you to be a credible witness and therefore believe what you alleged in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[13]     When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness and the reference there is to Maldonado.

[14]     I find that you have established on a balance of probabilities that you are a transgender woman.

Objective basis of future risk

[15]     Based on your credible allegations in testimony and the documentary evidence set out below, as well as the country condition evidence, I find that you have established that you face a serious possibility of persecution by reason of your being transgender if you were to return to Colombia by both state and non-state actors.

[16]     You testified that you have always been attracted to women and you started feeling like a woman yourself in 2013 or 2014. You felt like and lived as a woman from 2014 until you left to come to Canada in 2018, except that the last six months you lived as a man in Colombia in order to be able to work and make money. You saved the money to come to Canada.

[17]     You explained that you prefer to live as a woman and you plan to make a physical transition from male to female, although you have not started that physical transition yet.

[18]     You’ve explained that it was complicated to live as a trans woman in Colombia. You lived for about a year with a group of seven other trans woman in Bogota who operated a XXXX XXXX but they also smuggled items into the prisons and they pressured you to do the same. You refused to do that and they beat you up.

[19]     You got a job in your profession of XXXX XXXX in XXXX 2014 and in XXXX 2014 you began going to work dressed as a woman. You testified that your boss began to treat you strangely and make new demands that he would not normally require. You were fired from the job within a month of starting to dress as a woman. You believe that you were fired from this job because you’re transgender and you attempted to live as a woman openly.

[20]     You moved to Tulua in XXXXorXXXX XXXX 2015 but you were not able to find work in your civil engineering profession. You moved back to Bogota in XXXXor XXXX 2016.

[21]     You also testified that you have experienced verbal aggression, name-calling and you’ve been physically assaulted and injured in Colombia all because you are living as a trans woman.

[22]     You think the safest place to be able to live in Colombia is Bogota but you don’t believe you can live safely even there because of the fear of aggression, assault and not being able to work as a woman.

[23]     You testified that Colombia has a closed culture in terms of opinion and sexual orientation.

[24]     Your fears relating to the risks you face if you live openly as a transgender woman in Colombia are corroborated by documents in the NDP, that’s the National Documentation Package for Colombia, the March 29th, 2019 version.

[25]     I’ve considered the documentary evidence on the treatment of sexual minorities in Colombia. The legal framework for the protection of rights of sexual minorities is relatively progressive; however, in practice SOGIE individuals face significant discrimination in many facets of life and violence from society at large.

[26]     The legal protections that exist for sexual minorities are outlined in a Response to Information Request, or RIR, on the treatment of sexual minorities, which is NDP item 6.3.

[27]     NDP item 2.1 from the US Department of State says in part:

“Transgender individuals cited barriers to public services when health care providers or police officers refused to accept their government-issued identification. Some transgender individuals stated it was difficult to change the gender designation on national identity documents —

INTERPRETER: Sorry, can you repeat again after what you said about health service providers?

PRESIDING MEMBER: Or police officers.

INTERPRETER: Pardon me. Thank: you.

PRESIDING MEMBER: Okay.

“Some transgender individuals stated it was difficult to change the gender designation on national identity documents and that transgender individuals whose identity cards listed them as male were still required to show proof they had performed mandatory military service or obtained the necessary waivers from that service.”

[28]     NGOs or non-governmental organizations claimed discrimination and violence in prisons against persons due to their sexual orientation and gender identity remained a problem.

[29]     Despite government measures to increase the rights and protections of lesbian, gay, bisexual, transgender and intersex, or LGBTI persons, there were reports of societal abuse and discrimination as well as sexual assault. NGOs claimed transgender individuals, particularly transgender men, were often sexually assaulted in so-called corrective rape.

[30]     The constitutional court pronounced in 2016 that transgender persons faced discrimination and social rejection within the LGBTI community and recommended measures to increase respect for transgender identities in the classrooms. That report also says that NGOs reported several cases of threats against LGBTI human rights defenders as well as a high level of impunity for crimes against LGBTI persons. Such organizations partially attributed impunity levels to the failure of the Attorney General’s Office to distinguish and effectively pursue crimes against LGBTI persons.

[31]     NDP item 1.7, the UNHCR Eligibility Guidelines also refers to some serious levels of discrimination against SOGIE individuals:

“Individuals of diverse sexual orientations and/or gender identities, SOGIE, are victims of discrimination. Social movements demanding the recognition of the rights of gay men and lesbians have progressively made important though insufficient progress, including the recognition of the inheritance rights of same-sex couples, same-sex marriage and adoption by couples of the same sex.

Paradoxically, simultaneously with the advancement in terms of recognition of the rights of these individuals, violent incidents seem to have increased. Persons of diverse sexual orientations  and/or gender identities  have reportedly been exposed to torture in detention and to police violence. Furthermore, authorities often do not initiate investigations into cases of homicide and sexual violence against persons of diverse sexual orientations and/or gender identities.

A SOGIE rights organization in Colombia, Colombia Diversa, has recorded and verified 550 cases of homicide related to sexual orientation and/or gender identity in the period 2009 to 2014, including among the victims at least 86 transgender women and at least 18 SOGIE rights defenders.”

[32]     That report also says that particularly with respect to armed groups:

“NGOs have said that armed groups have imposed on persons of diverse SOGIE widely accepted gender roles by threatening to use violence as a punishment for not conforming. Some NGOs have also reported that the punishments perpetrated by guerilla groups, members of paramilitary groups including inter alia threats, assassinations, forced disappearances, grave physical and psychological harm and, above all, forced displacement of lesbian, gay and transgender persons.”

[33]     The Colombia LGBTI Report at NDP item 6.4 states at page nine that:

“Violence against LGBTI Colombians is pernicious and widespread. While there is no official government data that captures it, activists and individual accounts suggest a reality in which violence against LGBTI people permeates every sector of society: schools and universities, public places and city streets, families and communities.”

Nexus and nature of the harm

[34]     I find that your fear of persecution has a nexus to the Convention ground as a member of a particular social group as a transgender person.

[35]     The harm that you fear is serious.  The documentary evidence as well as your testimony indicates that violence against SOGIE persons in particular and transgender people is quite widespread and conducted with impunity.

[36]     As well, the level of discrimination by society at large is severe, particularly with respect to people who are transgender.

[37]     I find based on all of the evidence before me that you face a serious possibility of persecution for reason of being a transgender woman if you return to Colombia.

State protection

[38]     I have also considered whether state protection is available to you in Colombia. I find that adequate state protection would not be reasonably forthcoming in this particular case. You testified that you did not seek help from the police after the assaults and aggression that you experienced because you’ve been told that many trans women are mistreated by the police. You have not been mistreated by the police yourself but you know of other trans women who have been mistreated.

[39]     I find that the documentary evidence on the treatment of sexual minorities indicates that crimes against SOGIE people is done with impunity. The US Department of State Report, item 2.1 in the NDP says that:

“As of September 18th, the Attorney General’s office was investigating at least two alleged homicides of LGBTI individuals. Investigations into crimes committed by the security forces did not appear in the Attorney General’s office system. NGO Colombia Diversa reported six cases involving eight victims of police abuse of persons due to their sexual orientation or gender identity with the majority of complaints coming from transgender individuals.”

[40]     So, there is evidence that the authorities themselves are responsible for the abuse of persons for their sexual orientation or gender identity.

[41]     The UNHCR Guidelines at item 1.7 in the NDP states that state authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientation and gender identity. This document also notes at page 51:

State authorities, especially the police, are reported to participate in violent acts against persons of diverse sexual orientations and/or gender identities. In its report for the Committee Against Torture, Colombia Diversa recorded 212 incidents of police violence in the period 2008 to 2014. Moreover, police reportedly often failed to acknowledge the existence of prejudice as the primary cause of violent incidents against person of diverse sexual orientations and/or gender identities. In some cases such incidents are reportedly classified as personal violence having been caused by the behaivour of the victim. Individuals of diverse SOGIE are not included among the profiles identified by the government as specifically at risk of violence or harm and therefore are not eligible for special protection.”

[42]     I find that the level of protection provided by the state in Colombia falls far short of being adequate given the impunity with which crimes against SOGIE individuals are treated and as well as recurring reports of police being involved in the abuse of these groups.

Internal flight alternative

[43]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Colombia. I find that as a Colombian national who is transgender there is nowhere you could reasonably live safely in Colombia. The discrimination against someone like you would be severe and you face a serious possibility of persecution throughout the country.

Conclusion

[44]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

[45]     Thank you for attending today and I wish you good luck.

—PROCEEDINGS CONCLUDED