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All Countries Pakistan

2020 RLLR 117

Citation: 2020 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Megan Kammerer
Counsel for the Claimant(s): N/A
Country: Pakistan
RPD Number: VB9-05568
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000213-000227

REASONS FOR DECISION

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

[2]       In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution[2], which offers guidance in recognizing women as members of a particular social group and also with respect to other gender specific issues present in this claim.

ALLEGATIONS

[3]       The claimant is a former permanent resident of Canada who alleges that she has been emotionally and physically abused by her ex-husband in Pakistan. She states that this abuse began in 2014, was related to the claimant’s failure to sponsor her ex-husband to come to Canada, and continued until the claimant left Pakistan in 2016.

DETERMINATION

[4]       I find that the principal claimant has a well-founded fear of persecution on the basis of her gender and is therefore a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5]       I find that the claimant’s identity as a national of Pakistan has been established through her testimony and the supporting documentation filed, including her passport.[3]

Credibility

[6]       When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, there were some significant concerns with credibility. During testimony, the claimant made some inconsistent statements with respect to the abuse that occurred in Pakistan and was unable to adequately explain her delay in submitting her refugee claim. However, I do not find that these problems are significant enough to overcome the presumption of truthfulness.

Statements regarding the abuse

[7]       The claimant testified that she decided to leave her abusive ex-husband in 2016 and fled from Pakistan to Sri Lanka so that she could obtain travel documents from the Canadian High Commission for herself and her children. During an interview at the High Commission in Sri Lanka on [XXX] 2016, the claimant was asked about whether her ex-husband had hurt her “in any way” and whether he had abused her physically or verbally. The claimant replied that her ex-husband had hurt her verbally but not physically. When asked whether she was still in a relationship with him, the claimant replied that her ex-husband “is just not listening to me right now that we would be better off in Canada. His family does not like the way we got married. It is a love marriage.” When asked whether the claimant would continue to attempt to sponsor her husband, the claimant replied “Yes, he says he does not want to go now but he will agree with me and I will sponsor him.”[4]

[8]       During her hearing before me, the claimant testified that her ex-husband had abused her physically on many occasions between [XXX] 2014 and [XXX] 2015 as well as between [XXX] 2015 and [XXX] 2016. She testified that when she left Pakistan in [XXX] 2016 her intention was to leave and divorce her husband.

[9]       When asked about the discrepancy between her testimony and the statements she made to representatives at the Canadian High Commission in Sri Lanka, the claimant explained that she did not understand the question and so that is why she said that her husband only abused her verbally. She explained that when she was at the High Commission she was so upset that she had “no thoughts of my own” and “no idea what I am doing” and had misspoke. She also indicated at that point that she still hoped her ex-husband might change and they might reconcile.

[10]     I accept the claimant’ s explanation with respect to these inconsistencies. I note that trauma can have an impact on memory and understand that a victim fleeing abuse might not have yet full reconciled or decided whether or how to end her relationship. I also note that these statements were made at a time when the claimant was in turmoil, shortly after fleeing from Pakistan and learning that her permanent residency status in Canada might no longer be valid.

[11]     I also note that there are numerous statements in the GCMS notes disclosed by the Minister which are consistent with the claimant’s version of events recounted during testimony and that these statements pre-date her refugee claim, thus strengthening her credibility. For example, during that same interview which took place at the High Commission on [XXX] 2016, the claimant told officials that her husband and his family forced her to stay in Pakistan and that she had to leave the country without them knowing, that her husband first tried to prohibit her from leaving Pakistan in 2014, and that she was only able to obtain his permission to leave Pakistan to travel to Canada for one month in 2015 to go work on his permanent residency application. The official conducting the interview and drafting the note characterized this as “forcible confinement.”[5]

[12]     Likewise, in an interview conducted on [XXX] 2016, the claimant again told officials that “her husband and his family forced her to stay in Pakistan” which caused her to lose her PR status.[6] Similarly, on [XXX] 2016 the GCMS notes read: “Wife seeking to return to Canada in order to divorce and gain full custody of the children. Subject also the intention of pulling her sponsorship. Wife states that she fears the subject as he may try to get to Canada to kidnap the children.”[7]

[13]     These statements are consistent with the allegations of abuse that the claimant has made against her ex-husband and his family, which includes the allegation that her ex-husband and his family would not let her leave the family home.

[14]     Given the claimant’s explanation, as well as the additional statements about the abuse in the GCMS notes that pre-date the claimant’s refugee claim, I do not find that the inconsistent statements made about the nature of the abuse are sufficient to undermine the presumption of truthfulness.

Delay in submitting a refugee claim

[15]     The claimant arrived in Canada on [XXX] 2016 and was provided with a hearing date to appeal the decision that she had not met the residency requirements necessary to retain her permanent residency status. Her hearing before the Immigration Appeal Division took place on November 23, 2017, the claimant did not appear, and her appeal was thus held to be abandoned by way of decision dated December 11, 2017.[8] Despite this, the claimant did not submit a refugee application until [XXX] 2019.

[16]     The claimant testified that she was confused about the time of the hearing before the Immigration Appeal Division, as she had recently moved from Toronto to Calgary, and did not realize the hearing had been set for Eastern Standard Time rather than Mountain Standard Time. She explained that she missed the hearing and that when she received the decision notifying her that the appeal had been abandoned she retained counsel to help her explain why she had missed the hearing and appeal the abandonment decision. She further explained that she last spoke with her lawyer approximately one week ago and that he continues to be in contact with the Immigration and Refugee Board and that he has not yet received a response regarding her missed hearing. She states that she did not submit a refugee claim earlier because she was waiting to receive a response about the missed hearing from the IAD.

[17]     I asked the claimant if she had any corroborating documents from her lawyer regarding the appeal he is allegedly conducting on her behalf. She explained that she had asked her lawyer for a written statement but that he did not provide one. When asked why the claimant did proceed to file the refugee claim given that her lawyer continued to make inquiries with respect to her claim before the IAD, she explained that she needed legal status in order to remain in Canada and to obtain employment.

[18]     I do not accept the claimant’s explanation regarding her delay in submitting a claim for refugee status. I do not find it believable that her lawyer continues to make inquiries with respect to her abandoned IAD claim nearly three years after that claim was held to be abandoned and that she does not possess any documentation which corroborates this.

[19]     The claimant has not provided a reasonable explanation for why she did not submit a refugee claim until [XXX] 2019. However, I am not prepared to find that this delay undermines her credibility with respect to risk and subjective fear to such an extent that her claim must fail. There could be many reasons why a woman in the claimant’s position would not submit a refugee claim promptly.

Conclusion on Credibility

[20]     The claimant was not a compelling witness. She had to be prompted on several occasions to provide detail and at times she was notable to provide a reliable and cohesive account of her actions. Moreover, there were some inconsistencies between the way in which she described the abuse to different officials. However, as is set out in more detail below, her narrative about the abuse that she endured at the hands of her ex-husband and his family is believable and is supported in many different ways by the objective country evidence about Pakistan. Accordingly, I find that the claimant is a credible witness with respect to the allegations of abuse and her assessment of the risks that she would face if she were to return to Pakistan.

Nexus

[21]     The claimant alleges that she has been abused by her spouse. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group, namely female victims of domestic violence.

Potential Exclusion

[22]     The claimant gave birth to her daughter in Canada, but did not have her ex-husband’s permission to travel to Canada with their two sons, who are Canadian citizens. However, as is explained in the reasons that follow, the claimant has a defence pursuant to s. 285 of the Criminal Code[9], given that she has traveled to Canada to protect herself and her children from danger of imminent harm.

[23]     I also note that the claimant obtained a court order from a Canadian court on [XXX] 2018 providing her with sole custody of her three children. The claimant’s ex-husband was served and there is no indication that he responded. The claimant has provided a copy of this court order to me.[10]

[24]     I thus do not find that the claimant could be excluded under Article 1(F)(b) of the Act.

Well-Founded Fear of Persecution and Risk of Harm

[25]     The claimant is a former permanent resident of Canada who alleges that she fears her ex- husband will kill her if she returns to Pakistan.

[26]     The claimant received permanent residency status in Canada in [XXX] 2007, having been sponsored by her brother who lives in Canada. Between 2007 and 2016, she spent time living in both Canada and Pakistan.

[27]     The claimant testified that she met her ex-husband in 2007 in Pakistan and that they got married in Pakistan on [XXX] 2010. The claimant submitted an application to sponsor her ex-husband to become a permanent resident of Canada in [XXX] 2011. The sponsorship application was denied and the claimant initiated an appeal.

[28]     The claimant lived in Canada for various periods of time between her wedding and [XXX] 2014. She testified that when she returned to Pakistan on [XXX] 2014 her ex-husband had changed and he had suddenly become violent. She attributes this change to the fact that she had been unsuccessful at sponsoring him and that the application and subsequent appeal were taking a long time to process.

[29]     The claimant testified that she stayed in Pakistan with her ex-husband between [XXX] 2014 and [XXX] 2015. During this time, she lived with her ex-husband and his family. She testified that during this time he was emotionally and physically violent towards her on many occasions.

[30]     The claimant explained that she lived with her ex-husband and his parents. The claimant testified that his parents did not intervene to assist her. In fact, she says they were also frequently abusive. As explained in more detail below, this allegation is consistent with the objective evidence about domestic violence in Pakistan.

[31]     The claimant testified that during this period her husband refused to allow her to leave the family home. She testified that she attempted to contact the Canadian consulate in Islamabad and they told her they could not intervene because it was a family matter. In order to try to get help, she contacted a friend who called the police. The police visited the family home in approximately [XXX] 2014. When they arrived, the claimant’s ex-husband did not give the claimant permission to speak with them. He told the police that they had had a small misunderstanding at home and there was no need for their assistance. The claimant testified that the police did not try further to assist her and that after they left her ex-husband abused her physically. She says that after this incident she felt more scared to call the police. Again, the claimant’s description of this incident is consistent with the objective evidence on state protection in Pakistan, described more fully below.

[32]     The claimant testified that her ex-husband also abused their children.

[33]     The claimant returned to Canada in [XXX] 2015. She explained that she was able to negotiate with her ex-husband to allow her to leave the country because she told him she needed to make inquiries about the appeal of his permanent residence application. The claimant’s ex­ husband allowed her to travel to Canada for one month but told her she would not be allowed to bring their children with her to Canada.

[34]     The claimant stayed in Canada between [XXX] 2015 and [XXX] 2015. The claimant explained that she did not consider staying in Canada and leaving her husband during this period because her children were still in Pakistan.

[35]     The claimant testified that when she returned to Pakistan in [XXX] 2015 things were fine for about two days. After that, the physical and verbal abuse started again. The claimant estimates that the abuse occurred every other day. The claimant says that she contacted the Canadian consulate and once again they told her to contact the police and the courts in Pakistan to help her resolve this issue.

[36]     At one point the claimant left her husband to go stay with one of her friends. The claimant’s friend came and picked her up when her husband was out and the claimant was home alone. The claimant stayed with her friend for approximately 15-20 days, but says that ultimately her husband found her. She believes that he was able to trace her location using her cell phone because he has a friend who works for a mobile company.

[37]     The claimant returned home with her ex-husband and she testified that for a month or two the relationship was fine but then ultimately the abuse escalated once again. This is consistent with the dynamics of abuse.

[38]     Rather than ask the claimant to specifically describe the abuse that she endured at the hands of her ex-husband and his family, as such questions can often be retraumatizing and are unnecessary, I asked her to describe the impact that the abuse had on her. She explained that it caused her to feel stressed out, was mentally exhausting, and that all that she could think about was how she could escape the situation.

[39]     The claimant learnt she was pregnant again in 2016 and that the baby was a girl. She says that her ex-husband and his family began pressuring her to have an abortion because they wanted another boy. She says that she decided at that point she needed to leave her ex-husband.

[40]     The claimant left Pakistan with her children on [XXX] 2016. She traveled to Sri Lanka so that she could apply for Canadian passports for her children, who had been born in Canada, as well as obtain a valid permanent residency card as hers had expired in [XXX] 2016. She arrived in Canada on [XXX] 2016 and submitted a refugee claim on [XXX] 2019.

[41]     The claimant testified that she is worried that her ex-husband will kill her if she returns to Pakistan. She explained that in her culture “men do not leave things like this” because it “relates to honour.”

[42]     The claimant’s allegations are supported by the objective evidence. In Pakistan, women face direct, cultural, and structural violence through a deeply entrenched system of patriarchy in all aspects of public and private life.[11] The Women, Peace and Security Index 2019/20 places Pakistan at 164 out of 167 countries regarding women’s peace and security in the world. Other sources similarly indicate that Pakistan has been ranked the sixth most dangerous country in the world for women and that rates of violence against women, including domestic violence, are increasing in the country.[12]

[43]     The U.S. Department of State Report addresses domestic violence as one of the significant human rights issues in Pakistan. The report says that no specific law prohibits domestic violence and that domestic violence is widespread. Forms of physical violence including beating, physical disfigurement, shaving of women’s eyebrows and hair, and homicide. Family related disputes can result in death or disfigurement by burning or acid. Women who try to report abuse face serious challenges. Police and judges are sometimes reluctant to take action in domestic violence cases, viewing them as family problems. Authorities routinely return abused women to their abusive family members.[13]

[44]     Studies of domestic violence in Pakistan attribute it to deep-rooted patriarchal norms around femininity and masculinity. Such studies have found that if a wife makes a mistake, disobeys her husband, or is wrong, then the husband is viewed as having the justification to beat her.[14] The evidence also overwhelmingly indicates that in Pakistan women’s freedom of movement is restricted. In most households, women are expected to stay at home when they reach puberty and not allowed to have a job, go outside, or meet anyone. This is exacerbated in situations of domestic violence.[15]

[45]     Studies have found that while physical violence is often the most visible form of violence, subtle forms of psychological violence are probably more common. These include verbally abusive language, criticism, and threats, including threatening to “burn them” or “throw acid” on them.[16] In a study conducted in 2008, researchers found that 100% of women had reported having experienced psychological violence.[17]

[46]     The objective evidence indicates that women often not only face violence from their male partners, but also from their in-laws at home, given the tradition of extended families living together in Pakistan. Domestic violence in Pakistan encompasses broader family violence and includes violence perpetrated by members of the marital family, which has been shown to be extremely common. In fact, co-residence with in-laws has been found to be a driving factor for violence.[18]

[47]     Although the claimant has been living in Canada since 2016, and has not been in contact with her ex-husband during that time, she testified that she is still at risk and that he will punish her because she decided to leave him. She explained that this relates to honour and would be treated as a serious breach. I accept that the claimant’s ex-husband and his family adhere to deeply patriarchal values about the role of women and will punish women who defy this norm. In leaving her husband and taking their children to Canada, the claimant has defied her ex-husband’s assumed authority.

[48]     I find that the claimant faces a significant forward-looking risk of serious harm from her ex-husband should she return to Pakistan. I make this finding based on all the evidence before me, including the claimant’s credible testimony about the ways in which her ex-husband physically and psychologically abused her, as well as objective evidence which indicates that domestic violence is tied to deeply rooted patriarchal norms and that women who are perceived to transgress or challenge those norms are particularly at risk.

State Protection

[49]     In all refugee claims, the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. In this case, the claimant testified that she asked a friend to call the police on her behalf, and that while the police visited her home she did not receive any meaningful assistance. Her ex-husband refused to allow her to speak to the police and told them that they had had a minor family related dispute. The police did not pursue the matter further.

[50]     The claimant’s experiences with state authorities in seeking protection from domestic violence are supported by the objective documentary evidence in the National Documentation Package. The country condition documents indicate that domestic violence crimes are mostly unreported in Pakistan as it is still seen as a private matter and a matter of shame or dishonour. Pakistan has no comprehensive federal law to tackle violence against women. Although some states have passed legislation on domestic violence, these laws are not operationally effective protection mechanisms for victims.

[51]     Sources indicate that the challenges around implementing legislation on domestic violence in Pakistan are “enormous” and that police and judges are reluctant to take action in domestic violence cases as they view these as “family problems.” Sources also indicate that members of the police service are often verbally abusive when reports of domestic violence are made, and that the police are more likely to question the character of the woman than to help her. Rather than taking action to eradicate violence against women, police appear to enforce social norms to ensure that women do not oppose patriarchal rules. Women similarly have problems accessing the judicial system to obtain protection.[19]

[52]     In view of this evidence, I find that state protection for female victims of domestic violence in Pakistan is inadequate. While the authorities have made efforts to address domestic violence through legislation, these efforts have not been effective on the operational level. In this case, the claimant did make an attempt to obtain protection from the police, who did not even take the step of speaking directly with the claimant. The objective country information evidence demonstrates, however, that state protection is rarely available from authorities in Pakistan. I therefore find that the presumption of state protection has been rebutted in the case of the claimant.

Internal Flight Alternative

[53]     The final issue is whether the claimant has a viable internal flight alternative (IFA) in Pakistan. In order to determine whether an IFA exists, I must assess whether there is any location in Pakistan in which the claimant would not face a serious possibility of persecution and whether it would be reasonable to expect her to move there.[20]

[54]     At the outset of the hearing, I proposed Karachi and Islamabad as potential IFA locations for the claimant. The claimant testified that most of her family lives in Canada rather than Pakistan, and that she has no family at all living in Karachi or Islamabad. The claimant has remarried but her current husband lives in Canada and there is no indication that he would return to Pakistan with her. The claimant explained that it would not be easy as a single woman to live alone in one of those cities and that due to lack of support she would not be able to survive.

[55]     I accept the claimant’s testimony on this point and find that it would be objectively unreasonable, in the context of Pakistan, to require the claimant to relocate and live independently as a single woman. The OECD Report on Social Institutions and Gender Index describes how difficult it is for a woman to live alone in Pakistan. Both laws and customs limit the extent to which women can access property and financial resources. Women are discouraged from working outside the home and are often unable to access formal bank accounts because doing so requires two male guarantors. Only 36% of women own phones, compared with 80% of Pakistani men, and there are reports that women have been killed simply for owning phones, due to the social stigma around interaction with unrelated males.[21]

[56]     The claimant would be separated, single, and without family support in an IFA location. Given the objective evidence, the claimant would be at risk and would struggle to be able to support herself and open a bank account. In such circumstances, I do not find that relocation to an IFA location is a reasonable option.

CONCLUSION

[57]     For these reasons, I find that the claimant is a Convention refugee and I accept her claim.

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

[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996

[3] Exhibit 1.

[4] Exhibit 5, p. 10.

[5] Exhibit 5, p. 10.

[6] Exhibit 5, p. 8.

[7] Exhibit 5, p. 5.

[8] Exhibit 5, pp. 19-21.

[9] R.S.C., 1985, c. C-46.

[10] Exhibit 4.

[11] Exhibit 3, National Documentation Package (NDP), Pakistan, March 31, 2020, Item 5.21.

[12] Exhibit 3, NDP, Item 5.5 Response to Information Request (RIR) PAK106392.E.

[13] Exhibit 3, NDP, Item 2.1.

[14] Exhibit 3, NDP, Item 5.19.

[15] Exhibit 3, NDP, Item 5.19.

[16] Exhibit 3, NDP, Item 5.19.

[17] Exhibit 3, NDP, Item 5.19.

[18] Exhibit 3, NDP, Item 5.19.

[19] Exhibit 3, NDP, Item 5.5 RIR PAK106392.E.

[20] 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.).

[21] Exhibit 3, NDP, Item 5.9.

Categories
All Countries Turkey

2020 RLLR 116

Citation: 2020 RLLR 116
Tribunal: Refugee Protection Division
Date of Decision: March 9, 2020
Panel: Janko Predovic
Counsel for the Claimant(s):
Country: Turkey
RPD Number: VB9-05301
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000208-000212

— DECISION

[1]       PRESIDING MEMBER: This is the decision of the Refugee Protection, RPD, in the claim of [XXX] a citizen of Turkey who seeks refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act or IRPA.

[2]       Sir, you allege that you have been involved with the Gulen or Hizmet movement for several years and since that time you have resided in Hizmet dormitories, learned at Hizmet educational institutions, banked at Hizmet affiliated financial institutions, consumed Hizmet media and attended Hizmet community gatherings and events.

[3]       After the 2016 coup attempt in Turkey, the Hizmet movement was blamed and a crackdown occurred. You heard of Hizmet colleagues having been detained by Turkish government authorities and you have been informed that police have attended your former home numerous times in search of you personally commencing in 2017.

[4]       In 2014, you moved to Cyprus on a student permit and you resided there until 2018. At that point, you travelled to the United States and you met with the leader of the Hizmet movement Mr. Fethullah Gulen himself.

[5]       You fear that if you return to Turkey you will be persecuted on account of your Hizmet affiliation.

[6]       My determination, sir, is that you are a Convention refugee pursuant to s. 96 of the IRPA and your claim is, therefore, accepted.

[7]       The reasons for that determination follow now:

[8]       Your identity and your status as a national of Turkey have been established by the copy of your Turkish passport on file and I am satisfied on a balance of probabilities that you are a citizen of Turkey and no other country.

[9]       Though you did spend some time in Cyprus, I’m satisfied on a balance of probabilities that you were there on temporary permits only with no citizen like status. First, as a student and then as a teacher. This is sufficiently corroborated in my view by the copy of your student permit which is found at Exhibit number 5.

[10]     Your fear of persecution in Turkey is by reason of affiliation with the Gulen or Hizmet movement which started decades ago as a religious movement in Turkey. Today, it’s a little bit wider than that it bridges gaps between religion, politics and charitable work. The movement operates a network of schools, businesses, media outlets, charities, private hospitals and health clinics and so on. And Turkish President Erdogan has closed schools and media outlets in Turkey associated with the movement and he has categized it as a terrorist organization.

[11]     Based on the nature of the Hizmet movement as it straddles these political and religious lines, I conclude that there is a nexus between your allegations of persecution and the Convention grounds of religion as well as political opinion. Accordingly, I will assess your claim for protection under s. 96 of the IRPA.

[12]     I’ll touch briefly on your credibility now. In refugee determination cases there is a presumption that claimants and their allegations are truthful and I have identified no material inconsistencies or contradictions between your basis of claim and the other evidence before me, and your narrative does correspond to the objective evidence about conditions in Turkey for those belonging to or being associated with the Gulen movement.

[13]     You have also provided a copy of a summons corroborating the fact that police in Turkey have sought you out, and you have provided a photo of yourself with Mr. Gulen himself taken when you visited him in the United States where he resides in exile.

[14]     Ultimately, I have no reason to doubt the central element of your claim for protection, namely that you belong to the Hizmet Movement. Having accepted this, I also accept that you subjectively fear persecution in Turkey.

[15]     And I’ll note that I take no negative inference from your failure to claim protection in the United States, as you’ve indicated that was in part due to the present administrations animus to refugee claimants, and I find that to be a reasonable explanation. I turn now to the objective evidence regarding the treatment of Gulen followers in Turkey, and I’ll rely largely on Item 4.6 of the most recent national documentation package for that country. This is an IRB research and information report dated January 6, 2020, so it’s actually quite recent.

[16]     Now, as I’ve already referenced the Gulen movement is active around the world it operates schools, businesses, media outlets and charities. And Gulen followers have been continually targeted by the Turkish government following the 2016 failed coup attempt. Though the government has labelled that movement as a terrorist organization effectively declaring war on it. Many businesses have since closed due to their links with the Gulen movement and those suspected of being Gulen followers have been directly targeted resulting in many many serious violations of human rights on a systemic basis.

[17]     I’ll quote two prominent leaders in the Turkish government to give you an idea. Turkish President Erdogan is reported to have said in 2018 and I quote:

We’re purging every Gulenist in the army in the police and in state institutions, and we will continue cleansing these organizations of them because we will eradicate this cancer from the body of this country and the state. They will not enjoy the right to life. Our fight against them will continue until the end. We won’t leave them merely wounded.

[18]     The Turkish Economy Minister said something along the same lines in 2016 and I quote:

We will put those responsible for the coup, referring of course to the Gulen Movement members, into such holes for punishment that they won’t even — that they won’t even be able to see the sun of God as long as they breathe. They will not see the light of day. They will not hear a human voice. They will beg for death saying just kills us.

[19]     Authorities have taken these comments to heart and have vigorously acted on them. According to one report, a purge of Hizmet members within the state apparatus has resulted in the dismissal, detainment and arrest of tens of thousands. One source sites a 150,000 individuals dismissed, 500,000 investigated, 100,000 arrested, 6,000 academics discharged, 4,500 judges and prosecutors dismissed and 300 journalists arrested. Dismissals also include the cancellation of passports preventing people from leaving the country and escaping persecution.

[20]     The government has, through 2019, continued to detain and arrest even merely suspected Hizmet sympathizers. The Guardian newspaper reports that in February 2019 the government-issued arrest warrants for a further 1,100 people with suspected connections to the Gulenist movement.

[21]     Similarly, Reuters indicates that the ordering of the arrest of 1,100 people is one of the government’s largest operations against alleged supporters of the Gulen Movement.

[22]     Al Jazeera has stated that more than 760 people were detained in operations all across Turkey. Although 122 of those were later freed under judicial supervision.

[23]     Another source indicates that evidence is not necessary to keep someone in prison for months or years when they are suspected Gulenists, and another says the parallel is compounded a compromised justice system in which judges do not release suspects for being — for fear of being labelled Gulenists themselves.

[24]     It’s further reported that Hizmet detainees have faced different forms of torture and ill-treatment by the police and other government forces. Human Rights Watch indicates that cases of abductions which likely amount to enforced disappearances are — are, pardon me let me rephrase that. Human Rights Watch reports that there are cases of abductions which likely amount to enforced disappearances by state authorities. Abductions or kidnappings reportedly serve as part of the persecution launched by the Turkish president and his government primarily against participants of the Gulen movement.

[25]     Further, it is reported that the Turkish government targets people using guilt by association. The office of the UN High Commissioner for Human Rights has observed such a pattern of application of punitive measures targeting not just primary “suspects” such as civil servants or human rights activists, but also people associated with them particularly family members including children, siblings, parents and other relatives as well as friends, neighbours, work associates or even social media contacts that they do not necessarily know. This, of course, violates principles of individual responsibility, fairness and legal certainty.

[26]     Based on the foregoing objective evidence and my finding that, sir, you are indeed a Hizmet or Gulen follower, I find that you have established with sufficient credible and reliable evidence that you face a serious possibility of persecution in Turkey.

[27]     I’ve considered whether state protection or an internal flight alternative is available to you, however, as the state is the agent of persecution it would not be reasonable for you to seek state protection in Turkey nor would it be forthcoming if you were to do so. More likely you would be handing yourself over for persecution.

[28]     For similar reasons an internal flight alternative is not available. The persecution of Gulen followers occurs uniformly throughout Turkey and the government has declared that the movement is a terrorist organization. As Gulen followers, suspected followers and even family members of followers are targeted uniformly throughout the country there is nowhere you could go in the country where you would be free from a serious possibility of persecution.

[29]     Ultimately my conclusion, sir, is that you are a Convention refugee and I accept your claim under s. 96 of the IRPA.

— DECISION CONCLUDED

Categories
All Countries Egypt

2020 RLLR 115

Citation: 2020 RLLR 115
Tribunal: Refugee Protection Division
Date of Decision: October 1, 2020
Panel: Heidi Worsfold
Counsel for the Claimant(s): N/A
Country: Egypt
RPD Number: VB8-07448
Associated RPD Number(s): VB8-07460
ATIP Number: A-2021-00945
ATIP Pages: 000203-000207

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim of [XXX] and [XXX] as citizens of Egypt pursuant to Sections 96 and 97.(1) of the Immigration and Refugee Protection Act.

[2]       The specifics of your case are stated in your Basis of Claim form.  In short you state that you left Egypt because you fear persecution because of you religion, that being a Coptic Christian.  You feel there is nowhere you could live safely in Egypt. In doing this decision, I reviewed the Chairperson’s Guidelines for victims of gender-based persecution given that there is a gender component of religious persecution that you fear in Egypt.  You provided a detailed narrative in your Basis of Claim.  In short, you come from Christian parents and have been practicing as a Coptic Christian your whole life in Minya and then in Cairo.

[3]       Once you left primary school and moved into secondary education that was government run, you felt for the first time the religious discrimination as a religious minority.  Through the period of 2007-2009, you witnessed and increase in anti-Christian violence perpetrated by Muslim extremists.  This environment existed and would flare up at points so that sometimes you had to stay home from work at the [XXX] in Cairo because it was too dangerous for you to be out alone as a Christian woman.

[4]       You were having difficulties in your marriage as your husband was having relationships outside of the marriage so you decided that a period of separation would be best. You had planned to visit your sister in Canada and applied for a travel visa for you and your son. However, while you were at your father’s [XXX] (sic), 2018, you were approached by a man named [XXX] (sic), who knew of your circumstances and said he was interested in marrying you ad converting you to Islam.

[5]       On the evening of [XXX] 2018, as you and your son were returning from a weekly church service meeting, you were stopped by this [XXX] and another person while you were parking your car. He tried to drag you out of your car and the other man attacked the windshield with a large stick.  You tried to drive away to escape and you hit the other car.  In the process of this incident you were assaulted with a sharp object.

[6]       You were able to get away and called your father who took pictures of the car for insurance and also went to the police to report the incident.  When he arrived at the police station he found that the [XXX] was there with his followers claiming that you had hit them and that you were the criminal.  The police offered a solution of reconciliation in order to give some ⁠– and your father accepted this in order to give him some time to try to protect you.

[7]       When he came back home he decided that you should go to another house belonging to the church that was not known to the [XXX] and his followers. Subsequently you were threatened over the phone with the final offer of agreeing to marry the [XXX] and convert to Islam with your son or you would both be slain in the street.  You fear there is nowhere safe for you or your son to live as a single Christian woman anywhere in Egypt.

[8]       I find that you are Convention refugees according to Section 96 of the Act for the following reasons.

[9]       With respect to the issue of your personal identities as nationals of Egypt, it’s been established by your Egyptian it’s been established by your Egyptian passports and Canadian visas, copies which (sic) were submitted to the Board.  You testified in a straightforward and consistent manner today and I find that you were a credible witness.  You did not embellish your claim and there were no material inconsistencies or contradictions within your evidence and there ⁠– that were not reasonably explained or that undermined your credibility in respect to the central allegations.

[10]     You testified about the ongoing discrimination that you and other Christians face everyday living in Egypt and how this discrimination has intensified over the years and become persecutory especially since the revolution in 2011 where more Islamic extremists act with greater impunity.

[11]     You stated that as a Christian woman you were a much easier target and further, that Islamic fundamentalist like the [XXX] look to target Christian especially since conversions to Islam was seen as a victory or triumph.  You also provided significant corroborative documents with respect to your religion and the persecution you suffered from the [XXX].  You’ve provided photos of the damage clone to your car, a medical report outlining the injuries you suffered from that attack, a statement from your ex­-mother-in-law regarding the attack you suffered and threats form the [XXX] and he’s well known to be a dangerous and extremist Islamic individual in Minya.

[12]     As well, she submitted some information around the suspicious circumstances of her son’s death and you have attacked the death certificate, all at Exhibit 5.  Also you have attacked your baptism certificates indicating your Christian faith and this can also be found at Exhibit 5.  So based on the totality of evidence before me, I find that you’ve established a nexus to a Convention ground namely religion.  Further, based on the totality of the objective evidence, which I’ll highlight in a moment, I find that you have established that you would face a serious possibility of persecution on the basis of religion in Egypt as a Coptic Christian.

[13]     I find that the objective evidence provides a basis for your well-founded fear of persecution in Egypt on the basis of your religious beliefs and practice as a Coptic Christian and accordingly I find you’ve established your claim.  The NDP, or National Documentation Package, establishes that Egypt is presently an unsafe place to openly express a Christian identity.

[14]     According to Freedom house Report in the National Documentation Package, Egypt is a country where religious minorities and atheists face religious persecution and violence with Coptic’s in particular suffering numerous cases of forced displacement, physical assaults, bomb and arson attacks, and blocking of church construction in recent years.

[15]     According to the US Department of State in 2019, Coptic Christians suffered sectarian violence.  There were incidents of mob violence and vigilantism. World Watch Monitor, a website that reports the story of Christians around the world under pressure for their faith reports that on June 17th, 2016, more than 5,000 people mobbed homes of cops in their settlement near Alexandria and looted ten homes after reports that a Coptic man was turning his home into a church.  According to one newspaper source, since the 19702 Islamists and Egypt have used attacks on Christians as a tactic in their struggle against the state, further stating that in each period of violence with the state, Coptic’s serve as a target to Islamists who then home to revoke a disproportionate state repression and rally the large Muslim population to their cause.

[16]     It is reported that terrorists groups target churches in order to break whatever national unity may exist between the Muslims and Coptic’s of Egypt.  According to material collated in 2018 by the Board’s own research unit, President Al Sese (ph) is keen on improving the situation for Coptic Christians and the country recently saw its appointment of its first female Coptic governor.

[17]     However, the Board’s report also notes that numerous churches have been closed due to risk of attack, World Church construction is prevented, churches are picketed by slogan-chanting protestors, and attacked by brick-throwing mobs.  Muslim men have kidnapped minor Christian girls with impunity and criminal investigations against extremists have been thwarted by weak measures and implementation.

[18]     Ultimately I conclude that your fear of persecution in Egypt on account of your religious identity is objectively well-founded and that you face a serious possibility of persecution.  There is a presumption that a state, if it’s in control of its territory, will make serious efforts to protect its citizens.  Failure to seek protection from authorities can be fatal to a claim unless it can be established that the protection would not be forthcoming.  It is up to claimants to rebut the presumption of state protection with clear and convincing evidence that the state cannot or will not protect them.

[19]     While the evidence does not establish that the entire Egyptian population is hostile to Christians and while there are some examples of the state attempting to curb Islamists zealotry, these are few and far between.  For example, sources report that the government continues to use customary reconciliation when violent incidents occur in place of criminal investigations and prosecutions.  Amnesty International states that regarding the use of “customary reconciliation” impunity has contributed to a significant increase in violent acts against Christians.

[20]     According to Human Rights Group, reconciliation sessions put Christians at a disadvantage and result in some cases in Christian families being forced to leave their villages and sell their property.

[21]     In your particular circumstances, and individual, the [XXX], singled you out as a target of his interest in marrying you and converting you to Islam and appears to have had some support of the local authorities and been able to act with impunity.  In fact, your father was asked to use this customary reconciliation in place of putting a complaint forward.

[22]     Therefore I conclude that the Egyptian government has shown little ability to restrain the attacks and intimidation efforts of anti-Christian extremists.  Ultimately the presumption of state protection is rebutted because the objective evidence cited above confirms that the state is unwilling or unable to adequately protect you.

[23]     For an Internal Flight Alternative to be viable with respect to a Section 96 claim, there must be no serious possibility of the claimants being persecuted in the suggested IFA.  Further, conditions in the suggested IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claimants in question, for he claimants to seek refuge there.  I’ve considered whether an IFA exists in Egypt for you, however, the situation for Christians is largely uniform throughout the whole of Egypt and as such I find there is no place within the country where you could go where you would not face a serious possibility of persecution.

[24]     Accordingly, there is no IFA available.

[25]     So for the forgoing reasons, I determine that you are Convention refugees under Section 96 of the Act and I therefore accept your claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Turkey

2020 RLLR 114

Citation: 2020 RLLR 114
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Christine Medycky
Counsel for the Claimant(s): Aleksandar Jeremic
Country: Turkey
RPD Number: TB9-35318
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000192-000202

REASONS FOR DECISION

INTRODUCTION

[1]       [XXX], a citizen of Turkey, is claiming refugee protection pursuant to sections 96(1) and 97(1) of the Immigration and Refugee Protection Action.[1]

[2]       As this claim is based on sexual orientation, I have taken into consideration at the hearing and in rendering my decision, the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.[2]

[3]       The purpose of the Guideline is to help decision-makers better understand cases involving sexual orientation, gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms. It addresses a number of issues, including the unique challenges individuals with diverse SOGIE face in establishing their SOGIE, and in presenting their refugee claims, the danger of stereotyping and inappropriate assumptions, as well as, what to consider when assessing credibility and evidence.

DETERMINATION

[4]       Having considered the totality of the evidence, I find that the claimant is a Convention refugee for the following reasons.

ALLEGATIONS

[5]       The details of the allegations are fully set out in the claimant’s Basis of Claim Form (BOC).[3] To summarize, the claimant alleges a fear of persecution at the hands of his family, society at large and the state authorities in Turkey, due to his sexual orientation as a gay person.

ANALYSIS

Identity

[6]       The claimant’s personal and national identities were established, on a balance of probabilities, by his Turkish passport, certified true copy of which was provided by the Minister.[4]

Nexus

[7]       I find that there is a connection between the persecution that the claimant fears and the Convention ground of membership in a particular social group, namely that of gay men in Turkey.

[8]       I find the claimant to be a credible witness. His testimony was straight-forward, detailed and frank. The claimant did not embellish. There were no discrepancies, contradictions, or omissions in the claimant’s oral and documentary evidence, that went to the core of the claim. Therefore, on a balance of probabilities, I accept that the claimant has established he is a gay man.

Background and self-identification

[9]       The claimant recounted that he comes from a family that is middle class and religious. His father is the head of the family, his mother is a housewife. The claimant has two older sisters whose marriages were arranged. The claimant self-identifies as a gay man. When asked what this term means to him, he stated that the meaning is different in Canada than in Turkey. In Turkey, he said it is synonymous to being “in prison” because there you cannot express your homosexuality openly, you must hide it and live your life “behind the scene” because it is unsafe to do so in public.

[10]     He testified that he started to feel different around the age of 9 or 10 but did not understand why at the time. When he asked his mother what the homosexual meant, a word he had heard on the television, she replied that he did not need to know and not to ask her such things. In his community, people were warned to keep their children away from homosexuals because they have no morals, are ill, and spread disease.

First experiences

[11]     The claimant was able to describe his first romantic encounters with the same sex. He was particularly affected by his experience with a high school student from another city. He provided details on how they met, what attracted him to the student, and where their ‘encounter’ took place. He was also able to express his emotions when the student’s cousin walked in on them, and describe the injuries he suffered as a result of the ensuing scuffle and how it explained them to his parents when he arrived back home. The claimant stated that after this incident he closed his Facebook account and changed his SIM card for his mobile to prevent from his friend’s cousin from finding him.

[12]     I asked the claimant if he had ever disclosed to anyone in Turkey that he was gay, and he replied that he confided his secret to a close high school friend, but only after she had divulged to him that she was a lesbian. This was confirmed in a letter from the said friend. Otherwise, he concealed his sexual orientation. I questioned him why he had not opened up to his more liberal aunt who lived in a different city than his parents, and he replied that although she was more liberal, she was still homophobic. He did not trust her to keep his secret and feared the potential repercussions he would suffer at the hands of his family, especially his father, if she told them he was gay.

[13]     The claimant testified that he some sexual relations with men during his university days, however he said they were not serious or long-term relationships.

Incident of abuse

[14]     The claimant stated that on two occasions he was verbally and/or physically assaulted due to his sexual orientation. The first occurred at an eatery in Istanbul where he and his lesbian friend were accosted by men shouting, “People should be burned alive. Your women look like men and your men look like women. Because of you people the world is going to end soon.” Other patrons joined in. The owner sensing trouble asked them to leave. Angered by what happened, his friend called the police. The police came, but did nothing, they just told them to go to another café. A few months later his lesbian friend was violently attacked in Istanbul and required hospitalization. The friend confirmed what happened at the eatery and the attack on her in a letter submitted into evidence.[5]

Long-term relationship

[15]     The claimant engaged in a long-term relationship with a man in Istanbul. The claimant moved to Canada with this man to pursue English language studies. After the relationship broke down, the man threatened to reveal the claimant’s sexual orientation to his family.

Confrontation with father

[16]     The claimant testified that his father called him on [XXX] 2019. He wanted to know where his son was. When the claimant told him he was in Canada, the father became angry and said, “you go to Canada and sleep with men?” He had heard about his sones “bad habits” from his friend and had seen photos. The claimant’s father told him the that he would purchase a ticket for him to return to Turkey and that once he was back in the village “we will solve your problems there”.

[17]     The claimant testified that his father said he would bury him alive and once he knew his son had disappeared, he would kill himself because his son had dishonoured him, and he could not face people. The claimant said that his father was screaming and swearing at him on the telephone and that he hung up on him and has not spoken to him since. He changed his telephone number so his father could not reach him. He does however communicate with his eldest sister, with whom he is the closest, once a month to get updates on the situation at home, but that she deletes his number after each call. The claimant filed a claim in Canada for refugee protection on [XXX] 2019.[6]

[18]     As to his involvement in the LGBT community in Canada, the claimant said he had registered with an LGBT NGO for a training but did completed it due to the COVID pandemic.

[19]     I accept on a balance of probabilities that the claimant has a subjective fear of persecution.

Objective Basis

[20]     Furthermore, I find on a balance of probabilities, that the claimant’s subjective fear has an objective basis.

Worsening situation

[21]     According to the National Documentation Package and country conditions documentation submitted by counsel, homosexuality has been decriminalized in Turkey since 1858 and for many years the LGBTI community enjoyed much freedom. However, the situation has worsened since the 70s when a succession of conservative governments came into power and systemically targeted the LGBTI community with repressive measures.[7]

[22]     Today, the situation of sexual minorities lags behind the standards of the European Union and the United Nations. Consequently, LGBT people in Turkey face discrimination, violence – both physical and emotional, stigmatization and marginalization.[8]

Freedom of assembly

[23]     Following an attempted coup on 15 July 2016, the Turkish Government declared a state of emergency. During this period, human rights and fundamental freedoms were severely restricted or suspended. A ban was imposed on public assemblies and activities of various civil society organizations.

[24]     In November 2017, Ankara’s governor imposed an indefinite ban on events organized by LGBTI associations because they risked “inciting hatred and enmity” and therefore the ban was needed to “prevent crimes being committed”, “protect public health and morality” and “protect other people’s rights and freedoms.” Pride events are also banned in Istanbul, Izmir, Antalya and Mersin. The NGOs Kos GL and Pink Life unsuccessfully challenged the ban in local administrative courts. Appeals to regional administrative court and to the Constitutional Court are pending. The ban violates Turkey’s national and International obligations to respect and protect rights to equality before the law and freedom of peaceful expression and association.

[25]     The impact of the ban is that it stigmatizes and marginalizes LGBTI people and makes them very vulnerable to attacks. LGBTI people are cast as immoral and criminals. As a result of this, many experienced LGBTI activists have sought asylum abroad.[9]

Perception and Attitude of Turkish Society

[26]     Although founded as a secular state, traditional Islamic values are deep-rooted in Turkey’s government and society. Turkish society is patriarchal and gender roles are clearly defined. While homosexuality is not banned in Turkey, it is largely viewed as immoral and unnatural behaviour. A global study conducted by Pew Research Center in 2013 reports that acceptance of homosexuality in Turkey remains at a mere 9 percent.

[27]     The conservative AKP government considers the family to be the primary social institution and sees its values and traditions as essential to nation building and maintaining peace. Modem values are thus perceived as a threat to the disintegration of traditional social values. A majority of politicians do not support the LGBTI cause because this does not align with the values and morals of Turkish society. The Minister for Women and Family Affairs has publicly referred to homosexuality as “a biological disturbance” or ”disease and biological disorder in need of treatment”.[10]

[28]     Furthermore, articles submitted by the claimant report that President Erdogan is tapping into strong nationalist and religious groups to bolster the sagging popularity of the AKP. In June 2019, Ali Erbas, who leads the Religious Affairs Directorate in Turkey, preached in a televised sermon on the coronavirus outbreak condemning homosexuality because it brings illness and decay. The head of the Turkish Red Crescent made a homophobic tweet in July of this year, which was sharply rebuked by the International Federation of Red Cross and Red Crescent Societies.[11]

Honour Killings

[29]     So adverse is Turkish society to sexual minorities that many LGBTI individuals are killed by members of their own family for having ‘brought shame ‘to the family. Two well publicized cases of “honour killing” are that of 18-year old Ahmet Yildiz killed by his father in 2008, and 17-year old Rosen Cicek murdered in 2012 by his father and two uncles. LGBT advocacy groups closely followed the two trials and sought to become intervening parties in the proceedings. The courts rejected their requests. Honour killings are hard to document in Turkey because they are often covered up by families and police avoid investigating them.[12]

Discrimination

[30]     Turkey does not have an anti-discrimination law perse, but anti-discrimination clauses are found in the Turkish constitution as well as various criminal, administrative and civil laws. The protected grounds explicitly enumerated differ from each other and are non-exhaustive.

[31]     Sexual orientation and gender identity are not listed among the protected grounds in the Turkish Constitution or other laws for example (the Penal Code, Labour Law, Basic Law on National Education, Law on Civil Servants, Civil Code, Law on Social Services, Regulation on Minimum Wages). Therefore, LGBTI persons’ rights are neither guaranteed, nor specifically protected under Turkish law. This critical gap in the law, which allows the courts to make rulings to the disadvantage of LGBTI persons.

[32]     The Human Rights and Equality Institution of Turkey (HREIT) is mandated to investigate, ex-officio or upon applications made, all allegations of discrimination and to render decisions on such cases. Both the European Commission and the UN Human Rights Committee have expressed concerns about the independence of the HREIT.

[33]     In 2019, the HREIT rejected complaints by trans persons of discrimination in accessing accommodations and services. A study by Mustafa Ozturk found that most LGBTI hide their sexual orientation in the workplace for fear of discrimination and those who do ‘come out’ experience severe discrimination or are terminated.

[34]     The European Commission has reported cases where police officers, teachers, bank personnel, and city workers that have lost their jobs due to their sexual orientation.[13]

Hate Crimes

[35]     Hates crimes target people for who they are or are perceived to be. Although Turkey does have a law against hate crimes (Article 22 of the Turkish Penal Code), it does not include sexual orientation and gender identity as one of the protected grounds.

[36]     The OSCE Office of Democratic Institutions and Human Rights (ODIHR) reported that Turkey’s law enforcement agencies do not record the bias motivations of hate crimes and that violations of human rights of LGBTI persons, gender-based violence, hate speech and crimes remain a matter of serious concern. Furthermore, the mainstream media under reports such crimes.

[37]     The lack of explicit legal protection for LGBTI persons and persistent discrimination against them amounts to a tacit endorsement of discrimination and violence against LGBTI persons. The documentary evidence shows that between 2010 and 2014, 41 murders of LGBTI personas were motivated by hate. Hate-crimes are not thoroughly and promptly investigated and often under punished in Turkey.[14]

[38]     Courts frequently reduce sentences for hate crimes against LGBTI persons by applying Article 29 of the Turkish Penal Code (“Any person who commits an offence in a state of anger or severe distress caused by an unjust act shall be sentenced to a penalty of imprisonment for a term of eighteen to twenty four years where the offence committed requires a penalty of aggravated life imprisonment and to a penalty of imprisonment for a term of twelve to eighteen years where the offence committed requires a penalty of life imprisonment.) The Penal Code does not define what an unjust act is.[15]

[39]     Having considered all of the evidence, I find on a balance of probabilities, that the claimant’s fear of persecution is well-founded. He would not be able to live openly as a homosexual in Turkey where he faces a serious possibility of persecution, and it is unreasonable to expect him to conceal his sexual identity or expression, in order to live free of persecution.

State Protection

[40]     As one of the agents of persecution is the Turkish state, adequate state protection is not available to the claimant.

Internal Flight Alternative

[41]     Neither does the claimant have a viable internal flight alternative. Turkey is in control of all of its territories and consequently there is no place he can go in the country that is safe.

[42]     Considering the totality of the evidence before me, I find that the claimant, [XXX], faces a serious possibility of persecution at the hands of his family, society at large and the state authorities, due to his sexual orientation as a gay person, if he returned to Turkey.

CONCLUSION

[43]     To conclude, I find that the claimant is a Convention refugee and therefore his claim for asylum is accepted.

[1] Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1)

[2] Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017

[3] Exhibit 2

[4] Exhibit 1

[5] Exhibit 4

[6] Exhibit 2

[7] Exhibit 3, s.6.2; Exhibit 5

[8] Exhibit 3, s..6.1; Exhibit 5

[9] Exhibit 3, s..6.1-4; Exhibit 5 

[10] Exhibit 3, s..6.3; Exhibit 5

[11] Exhibit 5

[12] Exhibit 3, s.6.3

[13] Exhibit 3, s.6.3; Exhibit 5

[14] Exhibit 3, s.1.14, 2.1, 6.2

[15] Ibid

Categories
All Countries Iran

2020 RLLR 113

Citation: 2020 RLLR 113
Tribunal: Refugee Protection Division
Date of Decision: September 16, 2020
Panel: Liyusew Kidane
Counsel for the Claimant(s): Bahman Azimi
Country: Iran
RPD Number: TB9-31677
Associated RPD Number(s): TB9-31742
ATIP Number: A-2021-00945
ATIP Pages: 000188-000191

DECISION

[1]       MEMBER: This is a decision for [XXX], file number TB9-31677, and [XXX] file number TB9-31742. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally.

[2]       The principal claimant, [XXX], and the minor claimant, [XXX], claims to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and 97 sub – Subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       INTERPRETER: Sorry, can you keep the sentences short please so I can? I got this one but still.

[4]       MEMBER: I – I was wondering, is it possible for you to translate simultaneously so that I can read the decision for the record and the claimant will also receive the decision in writing. Do you know how?

[5]       INTERPRETER: It’s going to be a little hard. No. I can’t do that.

[6]       MEMBER: Okay, umm. Okay, I’ll read it in parts then.

[7]       INTERPRETER: Thank you, sir.

[8]       MEMBER: The principal claimant, [XXX], and the minor claimant, [XXX], claims to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and Subsection 97(1) of Immigration and Refugee Protection Act. The principal claimant was appointed as the designated representative of the minor claimant. In considering this matter, I have considered Chairperson’s Guideline on women refugee claimants and child refugee claimants.

[9]       INTERPRETER: I didn’t get that, sorry. Can you please speak a little louder?

[10]     MEMBER: Okay, umm. Counsel, this decision will be sent in writing. Would you ⁠– is it possible for you to translate to them when in your office when you receive it? Or, they…

[11]     COUNSEL: Yes. Is it the (inaudible)? As long—I mean at the end of the day I think they want to know whether the decision is positive, I think today.

[12]     MEMBER: It is positive.

[13]     COUNSEL: It’s positive?

[14]     MEMBER: Yes.

[15]     COUNSEL: Okay.

[16]     MEMBER: Okay.

[17]     CLAIMANT: Thank you. Thank you.

[18]     COUNSEL: . Okay, so I will read it to them in (inaudible) because of the mask and all these little logistics, it’s difficult to hear you (inaudible).

[19]     MEMBER: Yes. I appreciate that. I appreciate that, counsel.

[20]     CLAIMANT: Thank you so much.

[21]     MEMBER: Determination.

[22]     CLAIMANT: Thank you.

[23]     MEMBER:

Determination

[24]     I find you are both refugee Conventions for – Convention refugees for the following reasons:

[25]     I find that the claimants have established a serious possibility of persecution on the grounds of their membership to a particular social group, namely women facing gender-based violence due to their position to discrimination of women in Iran. Particularly, Iran’s dressing code. In light of this finding, the Panel has not assessed whether the claimants were victims of domestic abuse in Iran.

[26]     The allegations of the claims are found in the Basis of Claim form. In summary, the principal claimant allege that she fears harm in Iran at the hands of her husband. And you alleged you are your husb ⁠– you ⁠– you allege that your husband was abusive, and you fear this abuse will continue if you were to return to Iran. The minor claimant also fears abuse at the hands of her father.

[27]     The principal claimant testified that the claimants do oppose the Iran ⁠– Iran’s laws that compel women to wear hijab.

Identity

[28]     Your identities as citizens of Iran have been established on a balance of probabilities through your testimony and the certified true copy of your passport found in Exhibit 1.

Credibility

[29]     Overall, I found you, the principal claimant, to be a credible witness on a balance of probabilities. Your testimony was straightforward and spontaneous. There was no material inconsistency in your testimony. Also, I note that you did not embellish your testimony.

[30]     You have testified that women in Iran do not generally have a place. That means they don’t have equal status or treatment in society. It is defined woman has no right to divorce and are forced to marry. You testified that your marriage was arranged through your family and you really didn’t have a choice to refuse. You were pressured into marrying your husband. You also testified that the minor claimant was harassed and bullied in school due to her preference to cut her hair short, wear boy’s jacket and t-shirts. You testified that women are not given value, their freedom of speech is limited, and they don’t have freedom of choice.

[31]     In contrast, you testified that you and the minor claimant have no ⁠– have not been wearing hijabs since you came to Canada. You testified that you are more comfortable without hijab. I note that the claimants appear before the Panel without hijab. Therefore, I find that on balance of probabilities the claimants oppose the Iran’s dressing code that restricts women’s freedom of choice. I therefore find that you are credible and I acc ⁠– I accept your allegations as credible in that you have established your – your and the minor claimant’s subjective fear.

Objective Basis

[32]     I find that your subjective fear has an objective basis based on the objective evidence before me. In the National Documentation Package for Iran, which is attached to Exhibit 3, Item 2.1 indicates that the law provides that a woman who appears in public without appropriate attire, such as the cloth scarf veil over head and a long jacket, or a large full-length cloth covering legs cloth covering, may be sentenced to flogging and fined.

[33]     Item 5.4, in the NDP, states that there’s no legal definition of what constitutes appropriate hijab. Generally, girls as young as seven years old are required to wear proper hijab. This document further states the policing of women bodies is not confined to the State. Iran veiling laws have enabled thugs and vigilantes who feel they have the duty and the right to enforce Islamic Republic values to harass and assault women in public. As a result, on a daily basis, women and girls face random encounters with strangers who beat and pepper-­spray them, call them whores and make them pull their headscarves down to completely cover their hair.

[34]     The Panel therefore finds an objective and subjective basis to the claimants’ fear regarding the compulsory hijab on the balance of probability.

State Protection

[35]     State protection would not be reasonably forthcoming as authorities themselves are the agents of persecution.

Internal Flight Alternative

[36]     Given that the State is the agent of persecution, there is no internal flight alternative in the claimants’ circumstances.

CONCLUSION

[37]     Based on a totality of evidence, I find the claimants are Convention refugees. I therefore accept their claims.

[38]     Thank you and good luck.

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2020 RLLR 112

Citation: 2020 RLLR 112
Tribunal: Refugee Protection Division
Date of Decision: November 10, 2020
Panel: Mary Truemner
Counsel for the Claimant(s): Deryck Ramcharitar
Country: Kenya
RPD Number: TB9-29346
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000185-000187

DECISION

[1]       MEMBER: These are my reasons for my decision granting the applicant’s — sorry, the claimant’s claim for refugee status in file number TB9-29346, the claim of [XXX].

[2]       The claimant is a citizen of Kenya on claim that he is bisexual. He is seeking refugee protection in Canada pursuant to s. 96 of the Immigration and Refugee Protection Act.

[3]       The allegations of the claim are found in the Basis of Claim form.  In summary, the claimant fears persecution by homophobic family members and other homophobic people in the future in Kenya.  He claims that he cannot live openly as a bisexual man in Kenya because homophobia is widespread. Even if he were to live in secret having relationships with men, he fears being discovered. Kenya has laws against sexual relationships between men.

[4]       I find that the claimant has satisfied his burden of establishing a serious possibility of persecution on a Convention ground upon return to Kenya.

[5]       The identity of the claimant is established on a balance of probabilities through the certified true copy of his passport currently held by the Canadian Border Service Agency, CBSA.

[6]       Regarding credibility, when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truth. The claimant testified about his marriage to a woman in Kenya with whom he had three children, but also about his bisexual relationships in the United Arab Emirates and later with a Kenyan lover where he took a holiday in Tanzania and with whom he had romantic relations in Kenyan before he fled to Canada with a visa. His testimony was consistent with the narrative in his BOC — or, substantially consistent.

[7]       In 2004, the claimant had his first sexual relationship with a man, a work colleague in the United Arab Emirates, which put the claimant in peril there so that he stopped working in the UAE and returned to Kenya. Back in Kenya in 2016, he began an affair with another man, again a colleague, and was again put in peril because of it when vacationing with his lover in Tanzania. His family in Kenya found out about his lover and threatened his life for — and threatened the claimant’s life for bringing shame to the family. The claimant’s testimony was materially consistent with the Basis of Claim.

[8]       He also produced at the hearing an email to an agency here in Toronto which supports his testimony about his identity as a bisexual man. Also, he had testify a witness, his uncle, to whom he fled in Canada. The uncle substantiated his circumstances as a married man in Kenya and talked about what support he gave to the claimant here in Toronto.

[9]       While there were some inconsistencies in the claimant’s testimony, the Basis of Claim, and the claimant’s witness’ testimony, they were not material to the issue of whether he is bisexual, and the claimant’s explanations for the inconsistencies have satisfied me that he is telling the truth regarding his sexual orientation. I find that the claimant is generally credible and that on a balance of probabilities he is bisexual.

[10]     The overall objective evidence supports the claim. The claimant’s testimony was consistent with descriptions in the NDP, Exhibit 3, of widespread discrimination against men in Kenya who have same-sex relations, while the most recent item on the issue, item 6.6 from the UK’s Home Office, April 2020, reports that discrimination is lessening, it is still taboo in many families and communities in which violence will flare up.  I find that in the documentary evidence there is an objective basis for the claimant’s fear of persecution and his fear is well founded.

[11]     As well, the criminal law prohibits same-sex sexual relations between men with a maximum penalty of 21 years in prison. Therefore, with regard to state protection, I find on a balance of probabilities that rather than being protected from assaults by homophobic attackers, it is more likely that the claimant reporting to authorities that he is gay would be at risk of prosecution and would unlikely be protected.  Given that the laws of the state have criminalized sexual relations between men, I find that it would be objectively reasonable for the claimant to seek protection of the state in his circumstances.

[12]     Regarding an internal flight alternative, I find there is nowhere for the claimant to live safely in Kenya given that the criminalization of sexual relationships between men affects the entire country.  I find that there is a serious possibility of persecution throughout Kenya given the pervasive discrimination against gay couples and I find that there is no possibility of adequate state protection in any part of the country. Therefore, a viable IFA does not exist for the claimant who, although bisexual, has testified that he is essentially bisexual and is — and will behave as a bisexual man.

[13]     Having considered all of the evidence, I find on a balance of probabilities that the claimant is bisexual and given his profile, there is a serious possibility that he would face persecution with inadequate protection if he were to return to Kenya.

——————–REASONS CONCLUDED ——————–

Categories
All Countries Colombia

2020 RLLR 111

Citation: 2020 RLLR 111
Tribunal: Refugee Protection Division
Date of Decision: December 11, 2020
Panel: Erin Doucette
Counsel for the Claimant(s): Sherif R. Ashmalla
Country: Colombia
RPD Number: TB9-25353
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000179-000184

DECISION

[1]       MEMBER: So, I’m ready to render my oral decision, and before I read everything through I’ll just let you know that I am accepting your claim for refugee protection. Okay.

[2]       So, this a decision for the following claimants, [XXX] and [XXX].

[3]       Interpreter, just to confirm, are we going to do simultaneous for the … for the decision?

[4]       COUNSEL: We can’t do simultaneous because, like you said earlier, everything else … it will cover everything you’re saying.

[5]       INTERPRETER: Do you want … if you want…

[6]       COUNSEL: Do you want to just listen in English? Are you … do you understand any of … same when I spoke you understood everything pretty much.

[7]       CLAIMANT: Perfect, yeah.

[8]       MEMBER: Is that okay? Sorry, I … I’m also cognizant of the time. So, okay.

[9]       INTERPRETER: Okay.

[10]     MEMBER: Okay. So, you’re claiming to be citizens of Columbia and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[11]     I’ve considered your oral testimony and the other evidence in the case and Section … offering my decision now.

The Determination:

[12]     I find that you are Convention refugees on the grounds of your political opinion as animal rights activists who spoke out against government corruption facing a government run shelter and as a result, you face a serious possibility of persecution, and this is for the following reasons.

Your Allegations:

[13]     So, you’ve alleged the following. You are citizens of Columbia. You allege that you are animal rights activists who ran a [XXX] providing support to street animals and assisted with adoptions.

[14]     Your work involved volunteer work at a government funded shelter in [XXX]. While volunteering at the shelter and facilitating adoptions, you discovered that malpractice and misallocation of funds had occurred.

[15]     You raised your concerns several times to the municipality through the mayor’s office, as well as escalating your complaints to the ombudsperson’s office and the Attorney General. After raising these concerns you allege you began to receive threatening phone calls and text messages ultimately escalating to experiencing an in person threat outside your home in Bogota.

[16]     You allege that complaints to the police were ineffective.

[17]     You had planned a vacation to the USA and Canada in [XXX] and [XXX] of 2019. You alleged you hoped the problems at home would settle and that you had planned to return to Columbia.

[18]     You alleged that while in Toronto in [XXX] 2019, you received a distressing call from the female claimant’s mother advising that a threatening letter had been left by the Black Eagles, as well as a dead dog on the doorstep. The letter threatened both of your lives due to your animal rights activism.

[19]     You alleged you felt you could not at that point return to Columbia and immediately initiated a refugee claim without … without delay.

[20]     You allege if you return you will be physically harmed, killed, and you also would not be able to continue your animal rights activism.

[21]     You allege that there is no State protection for you or an internal flight alternative.

[22]     With regards to identity, your personal identity as citizens of Columbia has been established by your testimony and the supporting documents, namely those in Exhibit 1 the … the Columbian passports, your USA and Canadian visas, and I find, on a balance of probability, that identity and country of reference have been established.

[23]     With regards to nexus, I find that there is a link between what you fear and one of the five grounds, namely political opinion, opposition to government corruption, and as animal rights activists. Therefore, I’ve assessed this claim under Section 96.

Credibility:

[24]     In terms of your general credibility, I found you to be credible … both credible witnesses and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim Form.

[25]     Specifically, your testimony was provided in a spontaneous and genuine way without any inconsistencies or contradictions with the numerous documents that you’ve disclosed.

[26]     Your … your testimony about your animal rights activism was … was detailed and genuine, and without hesitation or preparation, you permitted me to view your social media pages for the … for your foundation, which … which provided consistent evidence about your adoption, process, animal welfare work, your animal activism, and your interaction with your … with your community.

[27]     Your knowledge and history provided about your motivation to become animal rights activists was detailed, genuine, and very personal, specifically, as it relates to the issue regarding street animals, which you explained is, you know, quite problematic in Columbia, and that was your main focus.

[28]     Your testimony about your reasons for speaking out and about the issues you incur at the government animal shelter were not only consistent with your very detailed and genuine documents, but also with your testimony about your convictions and your beliefs. You simply could not stay silent or not speak out. In doing so you drew unwanted and dangerous attention.

[29]     I find your testimony and supporting evidence in this regard to be credible and uncontested.

[30]     The copies of the threatening text messages that relate to the threats to your complaints about the concerns at the shelter and the corruption you uncovered, the transcript of the call received from a former shelter worker who had also been threatened, the numerous and extremely detailed right of request letter sent to the mayor’s office and the municipal Unit of Agriculture and Technical Assistance or UMATA for short.

[31]     I find your evidence credible about not claiming in the USA or Canada, given you had filed police reports and that it wasn’t until the threats escalated further with the … with the female claimant’s mother receiving the threatening letter from the Black Eagles as well as the dead dog on the door, and you determined at that point essentially your fear was quite crystalized and you have alleged you were no longer safe in Columbia and you initiated a refugee claim without delay.

[32]     Additionally, the other documents support your claim. The … the registration for the [XXX], the registration for your businesses, the Facebook and Instagram pages, the copies of numerous texts between clients who had adopted animals from the shelter only to find out that they were sick and had not been properly cared for there. And, of course, that’s what led you to initiate your investigation.

[33]     And the threats were directly related to your activism and your investigation and complaints of government corruption, and that’s also what brought about obviously the … the persecution.

[34]     So, I find that your subjective fear is established by your credible testimony and I believe what you have alleged, on a balance of probabilities. There’s also an objective basis for your fear.

[35]     So, with regards with the Black Eagles, I’m referring to NDP Item 7.10 and Item 7.11, specifically about the Black Eagles that notes that they have a known political agenda. They are involved in social and political extermination of social and political activists, as well as disappearances, homicides, and extortion.

[36]     And the country condition documents that your counsel provided in Exhibit 6 also confirm as well that the means of their communicating their threat was in keeping with essentially their style or their … their sort of modus operandi if you will, threatening letters left under the door as well as the letter had an insignia match, the letter that you provided.

[37]     With regards to … so, there is a well-founded fear. Your subjective fear has an objective basis and I find you have a well-founded fear of persecution.

[38]     With regards to the issue of State protection, the presumption of … there is a presumption that a State can protect its citizens unless the State is in a complete breakdown or there’s past personal experience where the State was not forthcoming, or we look to similarly situated persons. Okay. And to rebut the presumption there must be clear and convincing evidence.

[39]     I found that both of you are credible and that there is clear and convincing evidence to rebut the presumption of State protection.

[40]     You made efforts at many levels to get assistance with your concerns. When the threats were escalated you went to the police who advised you and you took them at their word, that they couldn’t do much other than, you know, call us every now and then for a … for a patrol. They referred you to the fiscalia. I find that you’re credible in stating that you went to the fiscalia. The fiscalia was not able to help you. But at that point too, you know, you were … you were in the process of doing everything that you could.

[41]     You took a vacation and that again, is where things shifted. There … it’s almost like a bit of sur place claim. The situation happened where your mother received the threatening letter and the dead dog, and at that point you realized that, you know, your lives were truly in danger and that if you had waited and stayed, you know, maybe things wouldn’t have turned out as they had.

[42]     There was an objective basis for you not feeling that protection was forthcoming. And the evidence throughout the NDP, specifically, in 2.1 the DOS report, 2.17 speaks about social leaders.

[43]     9.2 and 9.5 confirm that despite efforts to put protection in place, activists, social leaders, and those that expose and speak out on government corruption are the most vulnerable and that protection is often delayed, ineffective, and essentially not adequate at an operational level, this was what you were experiencing. So, your experience is … is manifest in the objective evidence.

[44]     The claimants … you made efforts that were reasonable, but I find that your reason for not pursuing further protection is also to be reasonable, given your personal circumstances, as well as the objective country documentation, and I do find that you have rebutted the presumption of State protection.

[45]     State protection would not be reasonably available to you in your particular circumstances, especially considering the level of corruption within the government, and that you were specifically speaking out about government corruption. As such, the State is somewhat of an agent of persecution and as such, it’s not reasonable to expect adequate protection from the State.

[46]     Flowing from that, we consider IFA, internal flight alternative. And yes, I did flag Barranquilla and Cartagena, but I find that … again, this is a two prong test. The first prong is about safety. Would you be safe from persecution in the IFA? I find that you would not. Therefore, there is no IFA. A … a suitable IFA does not exist.

[47]     You cannot be expected to stop your activism. It’s been very clear from your testimony that that is core to your beliefs and … and it’s just the same as, you know, a SOGIE claim. We couldn’t ask someone to stop being gay. We cannot ask someone to stop their activism. This is something that’s true to your … to the core of your beliefs.

[48]     You also were located in Bogota, which is a major metropolitan.

[49]     The Black Eagles do have connections throughout Columbia.  They often fill in the gaps left by other paramilitary and narco-military groups when they disband. As well there’s the corruption connection with the government corruption.

[50]     The first prong, as I said, is not met. You would not be safe and I do find that there is a serious possibility of persecution throughout the country.

[51]     Therefore, in conclusion, based on the totality of the evidence and your counsel’s submissions, I find that the claimants [XXX]and[XXX] to be Convention refugees and I accept your claim.

[52]     CLAIMANT: Thank you.

[53]     COUNSEL: Very good. Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Sudan

2020 RLLR 110

Citation: 2020 RLLR 110
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: Carol-Ann Gibbs
Counsel for the Claimant(s): Mohamed Mahdi
Country: Sudan
RPD Number: TB9-22298
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000176-000178

DECISION

[1]       MEMBER: This is a decision in the claim of refugee protection made by [XXX]. The claimant is a citizen of Sudan and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act based on a political opinion. I find that you are a Convention refugee for the following reasons.

[2]       Regarding the allegations, these are noted in your Basis of Claim form, the following is just a very short summary. You are a young man from Khartoum having studied and worked as a [XXX]. You have recently­, last summer been involved-, been interviewed by the BBC and critically spoke of the government, the Sudanese Government. At the time you were temporarily living in Cairo, you heard from your family member shortly after that interview that the authorities were aware of your comment and you were then afraid to return back to your country. You traveled to the US and then shortly after that you came to Canada and made a refugee claim. You’ve provided many more details in your file, that’s just a short summary for the purpose of the reasons.

[3]       Regarding your identity. Your identity as a national of Sudan was established by your testimony and the supporting documents filed such as your passport. Your identity as a [XXX] was established by documents provided such as [XXX] that you were involved in and some [XXX] of that [XXX] on the [XXX] that you did in [XXX]. Your identity as political opponent was established by your testimony, you clearly detailed your position regarding the Sudanese Government in various recent events in the country. As well your interview transcript, I think you provided and some of your social media postings also reflects that opposition to the government.

[4]       Regarding credibility, I found you to be a credible witness. The only concern I had was your failure to claim in the US. You know, your brothers there, your safe in the US, they do have a functioning asylum system, not that speedy but still its there. But that’s not enough to fail your claim. Okay, it’s the only concern that I had. As well as I’ve mentioned you provided proof of your activities as a journalist and your position is clear regarding the government. And your fear of returning to Sudan is supported in the documentary evidence, this is the objective reports that I have on the human rights situation in Sudan today. I note from the documentary evidence and this is at Exhibit 3, Item 2.1 that the Sudanese government re-

[5]       MEMBER: Can you understand my English? Do we still need the interpreter or do you want him?

[6]       CLAIMANT: No, I understand you.

[7]       INTERPRETER: Okay.

[8]       MEMBER: Okay. Mr. Interpreter you can take off if you want? Do you want to go and have your break now?

[9]       INTERPRETER: That’s fine, I can go.

[10]     MEMBER: Okay, okay. It’s up to you.

[11]     INTERPRETER: If you want to remain just in case of something.

[12]     MEMBER: Sure, sure. We are almost finished anyway but you don’t need to interpret. I knew that his English was-, was pretty good.

[13]     Okay, so along as you can understand me, I’m just going to let you know and you already know this anyway that Sudanese Government restricts political participation, uses lethal force against demonstrators and detainees. Security force has detained and physically abused political opponents without charge. Recent reports in our NDP package at Exhibit 3 talks about the Sudanese authorities monitoring-, this is at 4.18, authorities monitor online political activity. I also have many, many reports from Amnesty International, Human Rights Watch that talk about Jack of freedom for [XXX] and that [XXX] who were speaking out are harassed, are arrested, are detained without charge, are taken to unknown locations and really treated quite harshly if they are speaking out publicly regarding the government. So, your fear of returning to Sudan given the person that you are and are known to be is supported in the objective evidence.

[14]     Regarding state protection, I find that you have rebutted the presumption of state protection. In your case, the agent of persecution is the State. And we know from the documentary evidence that the Sudanese Government ranks very, very poorly internationally under freedoms and they certainly haven’t been able to deal with abuses committed by their authorities. So even if you were to complain about how the security forces were treating you, it doesn’t seem that there’s any recourse available for you that’s adequate in Sudan today.

[15]     Regarding an internal flight alternative, again I don’t find that there’s anywhere safe or reasonable that you could locate in Sudan where you would be safe from the State. Again, the agent the persecution in the State.

[16]     In conclusion, having considered all of the evidence, I find you have established a serious risk of persecution. I find that you are a Convention refugee and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Iran

2020 RLLR 109

Citation: 2020 RLLR 109
Tribunal: Refugee Protection Division
Date of Decision: January 15, 2020
Panel: Daniel Mckeown
Counsel for the Claimant(s): Nasser Hashemi
Country: Iran
RPD Number: TB9-20704
Associated RPD Number(s): TB9-20750
ATIP Number: A-2021-00945
ATIP Pages: 000173-000175

DECISION

[1]       MEMBER: I’ve considered the testimony and other evidence in this claim and I am now prepared to render a decision. The claimants are [XXX] and [XXX], they seek refugee protection against Iran pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. For the following reasons the Panel finds that the claimants are Convention refugees and this claim is accepted.

[2]       For ease of reference, where this decision makes reference to the claimant, that means the male claimant although these reasons apply equally to both claimants.

[3]       This claim was based on the following allegations. The claimant became interested in Christianity when he visited an uncle in Romania. The claimant and his wife came to Canada in [XXX] 2018 for the claimant’s education. In [XXX] 2019 the claimant’s wife returned to Iran with their new born son. When she returned she encountered problems with authorities at the Iranian airport because her son was wearing a Christian cross. The son’s Canadian passport was confiscated and the claimant’s wife struggled for 4 months to have it returned. The claimant’s wife returned to Canada on [XXX] 2019. They immediately made their refugee claims, signing their Basis of Claims on [XXX] 2019.

[4]       The identities of the claimants were established on the basis of their Iranian passports. The originals of which were ceased by the Minister.

[5]       The Panel had two concerns about the credibility of this claim. First was that the claimant delayed seeking protection in Canada until [XXX] 2019, despite being here in Canada as a Christian convert since [XXX] 2018. Second the Panel was also concerned that the claimant’s wife returned to Iran with a Christian cross on her son, knowing that it could have caused problems. Regarding the delay to seek protection, the claimant explained that his wife was pregnant at the time they arrived and turning his mind to making a refugee claim was difficult with his wife’s pregnancy. Regarding the return to Iran, the claimants explained how the cross was covered under their son’s clothing and they simply did not think this would cause problems for them.

[6]       While the Panel does have concerns, the Panel finds these explanations do somewhat mitigate the Panel’s concerns. The Panel does not find that these concerns ultimately undermine the credibility of this claim in its entirety or the presumption that the claimants have been truthful. In all of the respects the Panel did find that this claim is credible. The claimant spoke about his religious conversion to Christianity, he spoke about why he became interested in it, about why he continued to develop his faith and about how the faith has impacted his life. He spoke about the church he attended here in Canada, and the steps he has been taking to become baptized. The Panel found this evidence and testimony was compelling.

[7]       Other than noted above, there were no inconsistencies in the evidence. The claimant was straight-forward, spontaneous, and elaborated with significant detail upon the allegations. Where the Panel did have concerns, they were either reasonably explained, or otherwise did not outweigh the evidence supporting this claim. The Panel has access to the National Documentation Package for Iran, incredible sources such as the US DOS report and UK Home Office reports for example. These sources make clear that apostacy in Iran is illegal and punishable by death even though the female claimant herself may not be Christian, these are the country conditions evidence. The Panel was also satisfied that the female claimant herself would potentially face significant risk given her husband’s conversion, and given the difficulties she has already encountered in Iran.

[8]       Given that the Panel finds the claimant’s conversion is genuine, the claimants fit the profile of persons at high risk of persecution.

[9]       Whereas the State is the agent of persecution, the claimants have rebutted the presumption that state protection would not be adequate and forthcoming. Excuse me. The claimants have rebutted the presumption that state protection would be adequate and forthcoming. Likewise, there is no location in Iran the claimants could go where they would not face a serious possibility of persecution.

[10]     For all these reasons, the Panel finds that this claim is credible. The claimants fear is well-founded. The claimants face a serious possibility of persecution in Iran on a count of religion. The claimants are Convention refugees and this claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2020 RLLR 108

Citation: 2020 RLLR 108
Tribunal: Refugee Protection Division
Date of Decision: February 21, 2020
Panel: Z. Perhan
Counsel for the Claimant(s): Benjamin Allison
Country: Nigeria
RPD Number: TB9-16707
Associated RPD Number(s): TB9-16771
ATIP Number: A-2021-00945
ATIP Pages: 000168-000172

DECISION

[1]       MEMBER:    So, this is the decision for [XXX] file number TB9-16771 the principal claimant and her son [XXX] the minor claimant.

[2]       I’ve had an opportunity to consider your testimony, examined the evidence before me and I’m ready to render my decision orally. You will receive an edited … unedited transcript of the decision in the mail. Your counsel will also get a copy so if you have any questions you’re welcome to ask him.

[3]       You claim to be citizens of Nigeria claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       I find that both of you are Convention refugees for the following reasons.

[5]       The allegations of your claim can be found in the Basis of Claim Form in Exhibit 2. The details were elaborated today in your testimony. In summary, you the principal claimant, fear persecution in Nigeria due to your sexual orientation as a member of a particular social group, namely because you are bisexual. You also fear persecution at the hands of your first husband whose abusive relationship you escaped when you fled Nigeria for the United States.

[6]       Your son the minor claimant fears persecution as a child of a bisexual women who will be ostracized by the community members and might face spiritual cleansing to rid him of his mother’s sins.

[7]       Based on the type of claim I’ve carefully considered Chairperson’s guidelines 9, 4, and 3. So, sexual orientation and gender identity, women refugee claimants, and child refugee claimants.

[8]       I find your identities as nationals of Nigeria have been established, on a balance of probabilities, through your testimony, through your valid Nigerian passports which were presented when you made your claim in Exhibit 1. I find no reasons to doubt the authenticity of those documents.

[9]       In terms of your general credibility I find you to be a credible witness. Principal claimant, you have testified in a straightforward manner. There were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. I also find that were no embellishments made within your testimony. Therefore, I accept what you have alleged in support of your claim including the following.

[10]     Central issue of your claim is sexual orientation so I put a lot of weight into your testimony and documents relating to your past and current same sex partners in Nigeria and in the United States.

[11]     You testified about your first relationship and your longest relationship in Nigeria which you had to end as you fled the country in 2016. You did not escape because your sexuality was revealed, but because you had been in an abusive relationship until [XXX] 2016 with a man who physical and verbally tormented you, after the divorce you still could not escape his threats and left in [XXX] 2016 on a visitor’s visa to the United States.

[12]     There you met your second husband who started the sponsorship process so you could stay in the US permanently. However, because you were also in a same sex relationship and your husband found out he stopped the process of sponsorship in [XXX] 2017. Told your family and relatives in Nigeria about your sexuality and his unwillingness to have a bisexual wife.

[13]     After consulting with the church members in the United States you understood that you would not be able to obtain the status there. Returning to Nigeria would mean being persecuted by the community and the State for being a bisexual. So, you were advised to go to Canada and claim refugee protection here.

[14]     I did not … you did not present any supporting letters from your previous same sex partners. You lost contact with your Nigerian partner in 2016 because she was upset with you leaving her and going to the US.

[15]     Your US partner did not support your after you split from your second husband and did not want anyone in the Nigerian community in the United States to know about you two. You yourself were ashamed and still feel ashamed of who you are and not ready to share your feelings with anyone.

[16]     Your family members in Nigeria known you’re a bisexual and you also received telephone threats from your second husband’s family who told you not to come back to Nigeria. In addition, your son, if returned to Nigeria would have to probably undergo the spiritual cleansing to rid him of the mother’s sins and homosexuality.

[17]     While in Canada you have been an active church member though in Windsor participating in services regularly and volunteering in the local community centre. But even now it is hard for you to share your feelings and have a relationship with anyone. You’re still depressed about your past relationship and the consequences they had for you.

[18]     In general, I find your testimony today was credible and, on balance of probabilities, you, the principal claimant, are a bisexual woman.

[19]     As to the minor claimant I asked whether he would face any harm if he’s returned to Nigeria. You said he would not face any serious harm but would … would be separated from his mother.

[20]     During the counsel’s questioning you said that if your son gets … you also added if your son gets into the hands of the elders who know you’re bisexuality he will have to go through dangerous ritual cleansing. In addition, he will be discriminated against and ostracized as a family member of the bisexual. The harassment, as counsel indicated in his submissions, could amount to persecution and risk to boy’s life.

[21]     I find there is a link between what you fear and one of the give Convention grounds. As noted earlier the Convention ground for your claim is a particular social group. So, on a balance of probabilities, I accept that you are a bisexual woman and the minor claimant your son is a family member of the bisexual. Your claim is analyzed pursuant to Section 96 of the Immigration and Refugee Protection Act.

[22]     The overall objective evidence supports your claim for Convention refugee protection based on the membership in a particular social group, namely sexual orientation as a bisexual.

[23]     National Documentation Package for Nigeria in Exhibit 3 Items 6.1, 2.1, and 6.7 indicate that same sex relationships are criminalized in Nigeria. In particular, according to the Same Sex Marriage (Prohibition) Act all forms of LGBTQ activity, supporting and promoting it are illegal in Nigeria. Anyone convicted of entering into a same sex marriage or civil union may be sentenced to 14 years in prison. Anybody aiding or assisting homosexual activities faces a punishment of up to 10 years in prison.

[24]     Any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.

[25]     The documentary evidence further indicates that family members of LGBTQ persons face treatment amounting to persecution and it’s found in Tab 6.11, 10.1 in the National Documentation Package. So, family members of sexual minorities including spouses, parents, children, and siblings face ostracism, stigmatization, embarrassment from community members, other extended family members. Family members of sexual minorities can be cut off from their community, can be insulted and assaulted by community members.

[26]     In addition and as pointed by the counsel, Nigerian police force have arrested and detained relatives of wanted person. You as a bisexual is a wanted person in Nigeria. This act is often undertaken by the police with the intent of drawing a wanted person from hiding and forcing their surrender to law enforcement authorities.

[27]     So, counsel was right. Tab 10.1 actually points out that fact that family members of wanted persons will be and can be detained with no particular reason.

[28]     The minor … according to counsel’s submissions in addition the minor claimant could be… also face a great possibility for his persecution, increased danger that could lead to chi Id abduction, him being pressured into spiritual cleansing rituals that elders would perform on him.

[29]     Overall, the objective country condition evidence supports conclusion that both of you, you and your son, have an objective basis for your claim. You as a bisexual person and the minor claimant your son as a family member of the bisexual person.

[30]     You also fear police, authorities, and Nigerian community in general as same sex relationship is criminalized across Nigeria. I find it would be objectively unreasonable for you to seek protection of the authorities in Nigeria. Adequate State protection would not be available to you as you fear the State.

[31]     With regards to possible viable internal flight alternative in Nigeria, given the laws, the Federal laws of Nigeria criminalizing same sex relationship, I find there is a serious possibility of persecution for you throughout Nigeria. Therefore, a viable internal flight alternative does not exist for you in Nigeria.

[32]     As per your son the minor claimant, I also considered IFA for him, but again in his particular circumstances it is unreasonable to relocate anywhere in Nigeria without adults. It’s simply not safe.

[33]     So, having considered all of the evidence I find there is a serious possibility that you would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act.

[34]     I conclude that you are both Convention refugees based on your membership in a particular social group, principal claimant as a bisexual and the minor claimant as a family member of a bisexual. I therefore accept both your claims. Thank you.

———- REASONS CONCLUDED ———-