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2020 RLLR 97

Citation: 2020 RLLR 97
Tribunal: Refugee Protection Division
Date of Decision: February 27, 2020
Panel: S. Seevaratnam
Counsel for the Claimant(s): Constance Nakatsu
Country: Tibet
RPD Number: TB7-24959
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000071-000082

REASONS FOR DECISION

[1]       The claimant, [XXX], claims to be a national of Tibet, who is claiming protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

ISSUES

[2]       The relevant issues at the hearing were exclusion pursuant to Article 1E of the Convention,[2] identity, nationality, credibility, well-founded fear of persecution, state protection, and internal flight alternative.

[3]       Matters relating to the applicability of Article 1E are referred to herein as “exclusion issues.” Matters relating to whether or not the claimant has a well-founded fear of persecution within the meaning of the Convention refugee definition are referred to herein as “inclusion” issues.

EXCLUSION PURSUANT TO ARTICLE 1E

[4]       Article 1E of the Convention, which has been appended as a schedule to the IRPA, reads as follow:[3]

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

[5]       In Shamlou, the Federal Court identified four criteria that this Division should look to in considering Article 1E: the right to return; the right to work; the right to study; and full access to social services.[4]

India

[6]       The documentary evidence regarding the residency status afforded to Tibetans born in India is as follows from the Board’s Response to Information Request (RIR):[5]

Under Indian law, anyone born between January 26, 1950 and July 1, 1987 on Indian soil or at least should be, according to the letter of the law, … and as affirmed by the High Court of Delhi, automatically an Indian citizen. This was proved to include Tibetans by a Delhi High Court decision on 22 December 2010. However, there is a large gap between this right, and a person being able to have that right recognized, and to then be able to access the related rights and privileges. Rather than there being a series of simple steps to follow in order to attain citizenship, our research findings show that in practice, Tibetans in India who were born within the correct time period in India are still unable to have their status as citizens officially recognized.

[7]       The RIR further indicates that, in practice, it is very difficult for Tibetans to be able to access Indian citizenship for two reasons:[6]

1. The Indian authorities continue to treat Tibetans as foreigners, and

2. There is an unwritten policy of the Central Tibetan Administration to not release No Objection Certificates (NOC).

[8]       The claimant’s birthdate removes him from this law since he was born outside of the eligible birthdates and there is no evidence to suggest either of his parents were citizens of India at the time of his birth. Thus, it is not within his control to acquire the citizenship of India.[7]

[9]       In addition, the claimant does not have a birth certificate, a matriculation record since he only completed six school grades, or a driver’s licence – all of which are documents which may be utilized to obtain Indian nationality. This evidence is corroborated by the documentary evidence.[8]

[10]     A media report from the Tibet Sun corroborates the non-issuance of the NOC. The article states that “[i]n violation of the exile Tibetan charter, the Kashag (Secretariat of the Central Tibetan Administration) has ordered all the Departments under it to stop issuing NOC (no objection certificate) or any letter of support to Tibetans applying for Indian passport.”[9]

[11]     Furthermore, the media report finds the following:[10]

Tibetans applying for Indian passport continue to face various forms of discrimination and harassment, and are left with no choice other than appealing in the courts for relief.

The discriminatory practices in processing the applications include imposition of arbitrary rules and ignoring government orders by the Regional Passport Offices (RPOs), and unsubstantiated adverse police verification reports by the local police officers.

[12]     Based on the claimant’s evidence and the documentary evidence, there appear to be “significant impediments”[11] to Tibetans obtaining Indian nationality. The Federal Court in paragraph 23 of its decision in Pasang stated that factors such as the level of education, employment, and residence within a Tibetan refugee settlement, must be taken into account.[12]

[13]     A Business Standard report from 2018 confirms that “people born between January 26, 1950, and July 1, 1987, need to produce any of the 19 documents, including birth certificate … matriculation certification… “[13] The article concludes that “[e]ven people in the highest echelons of society and the bureaucracy have not proved their citizenship to the right authority.”[14]

[14]     In Choezom,[15] the Federal Court judge found as follows:

I find it difficult to accept this conclusion. It is self evident that the Applicant (with respect to the fundamental right of return and the nature of the residence in India) does have the same rights as an Indian citizen. The need for annual RC’s [Registration Certificates], IC’s [Identity Certificates], visas, NORI’s [No Objection for Return to India] and the prohibition to visit certain locations within India are all antithetical to the ‘basic rights of status as nationals’. All of these rights are not permanent and their renewal is at the discretion of the Indian government. It may be changed at any time for political, geopolitical (i.e. the need for good relations with China) or security reasons. The fact that there is no evidence that the Indian government has so far refused to issue RC’s, IC’s, visas or NORI’s does not mean it has given up the right to do so. The Tibetans’ existence in India is thus at the sufferance of the Indian government. As right to stay at sufferance does not amount to ‘the same basic rights of status as nationals’ of India enjoy. In my view the Board erred in concluding that the Applicant falls within the exclusion set out in Article 1(E) of the Refugee Convention.

[15]     Having carefully considered the rights afforded to Tibetans in India, the panel finds that the claimant does not fit the criteria established in Shamlou.[16] Therefore, the claimant is not excluded pursuant to Article 1E.[17]

INCLUSION

IDENTITY

[16]     The claimant presented a letter from the Samyeling Tibetan Settlement Office (CTA) to establish that he is “a bonafide Tibetan,”[18] who resided at a house within the Samyelling Tibetan Colony in Delhi.[19]

[17]     In addition, the claimant provided a letter from the Regional Tibetan Freedom Movement providing his correct date of birth and his Green Book number.[20] A Green Book is issued by the Central Tibetan Administration (the Tibetan government in exile).

[18]     The panel noted a discrepancy in the date of birth provided by the claimant at the port of entry,[21] his BOC,[22] and by the Tibetan authority. This discrepancy was put to the claimant and he was provided a reasonable opportunity to explain. He testified that when he was asked by an immigration officer for his date of birth he knew he was born in the year [XXX], however, he was not certain of the month and date. He explained that he never celebrated his birthday. The panel is cognizant of the claimant’s level of education and his loss of contact with his biological mother from a young age and his upbringing by his uncle and his wife. The panel accepts the claimant’s explanation. Furthermore, counsel in her submissions indicated that the Tibetan authority at times keeps more accurate records than the Tibetan families.

[19]     The claimant has also provided an affidavit from [XXX], who was his neighbour when they lived within the confines of the Tibetan colony in India.[23] [XXX] was accepted as a Convention refugee and he is a Canadian citizen.[24]

[20]     At the hearing, the claimant provided the original letters issued by the Tibetan authority.

[21]     Throughout the hearing, the claimant testified fluently in the Tibetan language. The claimant spoke of the unique culture and religion practiced by the people from Tibet. He appeared to have a genuine faith in his religious leader, His Holiness the Dalai Lama.

[22]     Accordingly, the panel accepts the claimant’s personal and ethnic identity as a Tibetan.

NATIONALITY

[23]     The claimant was born in India to parents of Tibetan ethnicity. As discussed under the exclusion section, the claimant has not acquired Indian nationality.

[24]     The claimant testified that he was born in Delhi, India on [XXX],[25] to parents who he believes are Tibetans but he was not certain of their nationality. The claimant testified that he has never met his biological father and he was taken from his biological mother, [XXX],[26] and raised by his uncle, [XXX], since the age of four.[27] He indicated that his uncle did not acquire Indian nationality. He added that his uncle told him that his mother also did not acquire Indian nationality and thus, she remains a Chinese national. The claimant stated that he resided in India throughout his life, until his departure in 2017. The claimant testified that he received education until the sixth grade, where he was taught in the Tibetan and English languages. He believes the school was financed by the Tibetan government in exile. He further stated that he was never a national of India since he was never issued an Indian Resident card or an Indian

Identity certificate. The claimant considers himself to be Tibetan. He believes that given the Chinese occupation of Tibet, his life would be at risk and he fears persecution on religious and racial grounds as a Tibetan who worships his Holiness the Dalai Lama.

[25]     According to an official at the Chinese Embassy in Ottawa:[28]

Tibetans who have left Tibet since 1959 and who have not obtained the citizenship of a foreign country are considered to be Chinese citizens. Because China does not recognize dual citizenship, those Tibetans who have acquired a second citizenship are not considered to be Chinese citizens.

In general, children acquire the citizenship of their parents. Like their parents, if the foreign-born children of the above-described Tibetans have not obtained the citizenship of a foreign country, they are considered to be Chinese citizens.

According to a representative of Asia Watch in New York, both the PRC [People’s Republic of China] and the international community consider Tibet to be part of China; therefore, Tibetans are considered to be Chinese citizens… [footnotes omitted]

[26]     Accordingly, on a balance of probabilities, based on the information available on his birth and his parents’ nationality, the panel finds that the claimant is a citizen of China. Thus, this is the only country of reference in this claim.

CREDIBILITY

[27]     The claimant was a credible and trustworthy witness. His responses were consistent with his level of education. The oral evidence provided by the claimant was consistent with his BOC[29] and is supported by the documentary evidence. The plight of the claimant as a Tibetan is supported by the documentary evidence, which is current and reliable. In addition, the documentary evidence emanates from reputable sources which do not have a vested interest in the merits of this claim.

WELL-FOUNDED FEAR OF PERSECUTION IN CHINA

[28]     The claimant regards himself as a Tibetan with a different language and culture from the Chinese. The claimant has never been to China and does not speak the languages. He regards his race and nationality as being Tibetan. He sees himself as a member of a social group, namely Tibetans.

Historical Context

[29]     There is overwhelming evidence regarding the 1959 Chinese invasion of Tibet and the Tibetan genocide that followed. The documentary evidence has established that human rights have been violated.[30]

Religions Persecution

[30]     The claimant believes in His Holiness the Dalai Lama as his political leader and religious leader. He fears persecution by the government of China due to his religious beliefs.

[31]     According to the 2019 United States Commission on International Religious Freedom (USCIRF) Report for China:[31]

…[T]he Chinese government continued to persecute all faiths in an effort to “sinicize” religious belief, a campaign that attempts not only to diminish and erase the independent practice of religion, but also the cultural and linguistic heritage of religious and ethnic communities, particularly Tibetan Buddhists and Uighur Muslims…

[32]     The 2019 annual report indicates that “[t]he Chinese government continued to use advanced surveillance technology and other measures to repress Tibetan Buddhists.”[32]

[33]     Further, the USCIRF report states that “[i]n 2018, the Chinese government continued to pursue a strategy of forced assimilation and suppression of Tibetan Buddhists throughout Tibet.”[33] The Chinese government restricts and regulates religious practices in Tibet. Monasteries have been destroyed, monks and nuns have been forced to express their opposition to the Dalai Lama, Tibetans found in possession of banned religious books or prayers have been imprisoned. The report further states that “[t]he Chinese government continued to accuse the Dalai Lama of blasphemy and ‘splittism,’ and cracked down on anyone suspected of so-called ‘separatists’ activities.”[34]

[34]     Therefore, the panel finds that freedom of religion is denied to the claimant, as a Tibetan, should he be returned to China.

STATE PROTECTION

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

[36]     The claimant testified that his agent of persecution is the government of China.

[37]     According to a November 2016 report by the International Campaign for Tibet and the International Federation for Human Rights (FIDH): “On 1 January 2016, China’s new counter­ terrorism law came into effect, despite serious concerns voiced by human rights groups regarding the potential for this law to be used to repress religious and ethnic groups.”[36]

[38]     This report further states the following:[37]

These laws and other measures are essential components of a comprehensive security architecture being established by the Chinese authorities, encompassing military, political and Party propaganda objectives as well as heightened surveillance and media censorship. The dramatic expansion of the powers of military and police in the People’s Republic of China (PRC) – backed by grass roots propaganda work and electronic surveillance – comes under the general rubric of ‘stability work’, which is political language for the elimination of dissent and enforcement of compliance to Chinese Communist Party policies. Under the leadership of the Chinese Party Secretary and President Xi Jinping, the Chinese government is enforcing a comprehensive legal framework which represents an attempt to legitimize through legislation existing repressive measures designed to intensify control by the CCP [Chinese Community Party] and suppress dissent.

[39]     Moreover, “China’s new counter-terrorism law allows for the conflation of domestic protest, dissent or religious activity with international terrorism thus reducing the pressure for governments to resolve both Tibetans’ and Uyghurs’ genuine grievances.”[38]

[40]     The Tibetan Center for Human Rights and Democracy’s 2018 annual report states the following:[39]

The arbitrary arrest and detention of peaceful Tibetan protesters and other human rights activists continued unabated. In particular, extended criminal detention preceding arrest has increased, providing more latitude to law enforcement officers to engage in violent interrogation and torture methods to obtain forced confessions. Other forms of illegal detention such as confinement in ‘legal education centers’ have increased after the abolition of Re-education Through Labour camps and the acceleration of political re-education campaigns in many parts of Tibet. Tibetans suspected of criminal offences, particularly those pertaining to political matters, are almost always denied the right to fair trial or a hearing. Very few Tibetans, if any, manage to exercise any rights to a fair trial.

Restrictions on the freedom of peaceful assembly remained severe as Chinese police and paramilitary troops engaged in violent suppression of peaceful protesters calling for the return of the Tibetans’ spiritual leader, His Holiness the Dalai Lama, freedom and human rights.

[41]     The same report notes:[40]

Similarly, the right to freedom of religion and belief was subjected to heightened levels of control and restriction, through the enforcement of the revised regulations on religious affairs, the implementation of the campaign against ‘organised crime’ particularly targeting religious institutions and practitioners, and the issuance of local directives to ban Tibetan schoolchildren from participating in religious activities. The policies known as ‘adapting religion to socialism with Chinese characteristics’ and ‘sinicising Tibetan Buddhism’ have led to an increase in compulsory political reeducation campaigns and an erosion of flexibility at the local level to control the religious education of minors, and limitations on informal places of worship.

[42]     The NDP[41] and the documentary evidence submitted by the counsel to the claimant[42] makes clear that the state is complicit in the violence committed against members of the Tibetan community. Accordingly, in these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant.

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

INTERNAL FLIGHT ALTERNATIVE (IFA)

[44]     The Federal Court of Appeal established a two-part test for assessing an IFA in

Rasaratnam and Thirunavukkarasu:

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”[43] and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claimant, for him to seek refuge there.[44]

[45]     The claimant bears the burden of proof to demonstrate that he would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of China.

[46]     The claimant provided credible and consistent sworn viva voce evidence that the agent of persecution is the government of China. The claimant testified that he fears persecution throughout China due to his Tibetan ethnicity.

[47]     The documentary evidence indicates that there are obstacles to the freedom of movement for members of the Tibetan community. The Tibetan Center for Human Rights and Democracy’s 2018 annual report states as follows:[45]

The right to freedom of movement includes the right of a person to enter his or her own country. Whether Tibetans are living in other countries as refugees or as citizens of other countries, they have the right to visit or return to Tibet because of the “special ties to or claims” in relation to their homeland. But in some areas of Tibet, Chinese authorities were seen implementing an undeclared policy that barred Tibetan refugees from returning to their hometowns. Although temporary permits to visit family and relatives are still issued selectively to some Tibetan refugees living in India, they are not allowed to move back permanently. A visiting Tibetan refugee from India was told by Chinese authorities in Dowa Township in Rebkong County, Malho (Ch: Huangnan) TAP that a new policy enforced since January 2018 no longer allows returning Tibetans to live permanently in their hometowns. There is no known evidence, either in written or oral form, of such policy promulgated by Chinese authorities. It appears to be one of the numerous ad-hoc measures imposed by local authorities as part of the ‘stability maintenance’ policy. [footnotes omitted]

[48]     Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout China. Thus, in the particular circumstances of the claimant, who is of Tibetan, a viable internal flight alternative is unavailable.

CONCLUSION

[49]     Having considered the totality of the evidence, the relevant statutory provisions, and jurisprudence, the panel finds that the claimant has demonstrated that there is a reasonable chance he would be persecuted on grounds of race, nationality, and religion, should he be returned to China today. Accordingly, the claimant has a well-founded fear of persecution.

[50]     For the above-mentioned reasons, the panel finds the claimant to be a Convention refugee.

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

[2] Ibid., Schedule (Subsection 2(1)), Sections E And F Of Article 1 Of The United Nations Convention Relating To The Status Of Refugees, Article 1E.

[3] Ibid.

[4] Shamlou, Pasha v. M.C.I. (F.C.T.D., no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.), at para 35.

[5] Exhibit 7, Country Condition Documents, p.19, received October 17, 2018.

[6] Ibid.

[7] Williams, Manzi v. M.C.I. (F.C.A., A-241-04), Decary, Letourneau, Nadon, April 12, 2005. Reported: Williams v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 429 (F.C.A.).

[8] Exhibit 7, Country Condition Documents, received October 17, 2018.

[9] Ibid., p.22.

[10] Ibid., p.28.

[11] Tretsetsang, Chime v. M.C.I. (F.C.A., no. A-260-15), Ryer, Webb, Rennie, June 9, 2016, 2016 FCA 175; Yalotsang, Perna v. M.C.I. (F.C., no. IMM-4191-18), Mactavish, May 3, 2019, 2019 FC 563, at para 9.

[12] Exhibit 8, Federal Court Jurisprudence, received February 3, 2020 — which includes: Pasang, Thinley v. M.C.I. (F.C., no. IMM-6585-18), Fothergill, July 10, 2019, 2019 FC 907, at para 23

[13] Exhibit 7, Country Condition Documents, p.33, received October 17, 2018. 

[14] Ibid.

[15] Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004, 2004 FC 1329, at para 14.

[16] Shamlou, supra, footnote 4.

[17] IRPA, supra, footnote 1, Schedule (Subsection 2(1)), Sections E And F Of Article 1 Of The United Nations Convention Relating To The Status Of Refugees, Article 1E.

[18] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.2, received [XXX], 2018.

[19] Ibid.

[20] Ibid., p.3.

[21] Exhibit 1, Package of information from the referring CBSA/CIC, received [XXX], 2017.

[22] Exhibit 2, BOC, response to q.1(c), received [XXX] 2017.

[23] Exhibit 9, Affidavit of [XXX], received [XXX], 2020.

[24] Ibid., para 3.

[25] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.3, received [XXX], 2018.

[26] Exhibit 2, Basis of Claim Form (BOC), response to q.5, received [XXX], 2017.

[27] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.1, received [XXX], 2018.

[28] Exhibit 7, Country Condition Documents, p.38, received [XXX], 2018.

[29] Exhibit 2, BOC, received [XXX], 2017.

[30] Exhibit 3, National Documentation Package (NDP) for China (December 20, 2019).

[31] Ibid., item 12.2, Key Findings

[32] Ibid.

[33] Ibid., Tibetan Buddhists.

[34] Ibid.

[35] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

[36] Exhibit 3, NDP for China (December 20, 2019), item 13.4, p.3.

[37] Ibid., p.9.

[38] Ibid.

[39] Ibid., item 13.9, Executive Summary.

[40] Ibid.

[41] Exhibit 3, NDP for China (December 20, 2019).

[42] Exhibit 7, Country Condition Documents, received October 17, 2018.

[43] Rasaratnam, Sivaganthan v. M.E.I (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

[44] Thirunavukkarasu, Sathiyanathan v. M.E.I (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

[45] Exhibit 3, NDP for China (December 20, 2019), item 13.9, Freedom of Movement.

Categories
All Countries Sri Lanka

2020 RLLR 95

Citation: 2020 RLLR 95
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2020
Panel: Diane L. Tinker
Counsel for the Claimant(s): Ian D. Hamilton
Country: Sri Lanka
RPD Number: TB7-08356
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000048-000052

REASONS FOR DECISION

[1]       The claimant, [XXX] is a citizen of Sri Lanka. The claimant claims to have well-founded fear of persecution at the hands of the Sri Lankan police, army as well as paramilitary groups due to his ethnicity as a young Tamil male from the north under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).[1]

ALLEGATIONS

[2]       The claimant alleges that he [XXX] that was televised throughout Sri Lanka and, as a result, came to the attention of the EPDP (Eelan People’s Democratic Party) who wanted him to sing for them at their parties and campaign. The claimant declined but continued to be harassed by the EPDP to the extent of being kidnapped in [XXX] 2013. The claimant agreed to sing for the EPDP and was released and went to Columbo. Due to harassment of his family by the EPDP, the claimant returned home and again was kidnapped and this time beaten by the EPDP members in [XXX] 2013. The claimant stated that he was able to escape during the night and through his family, left Sri Lanka and went to Thailand.

[3]       The claimant claimed for refugee protection through the UNHCR, however, never received an answer. In [XXX] 2015, a new president was elected in Sri Lanka who promised that it was safe for people to return. The claimant returned to Sri Lanka in [XXX] 2015.

[4]       The claimant indicated that the CID (the Criminal Investigation Department) questioned him extensively in [XXX] of 2016 concerning his stay in Thailand and his ties to the Tamil Tigers (the LTTE) as he had two uncles in that organization: one, a Major who was killed and another living in the United Kingdom, who was active on social media concerning the Tigers.

[5]       The claimant and his family again feared for his safety and made arrangements for him to leave the country. The claimant left Sri Lanka in [XXX] 2016 and went to Dubai but was sent back. The claimant, through an agent hid in Sri Lanka until he was able to leave and arrived in Canada on [XXX] 2017 and claimed for refugee protection shortly thereafter.

DETERMINATION

[6]       I find that the claimant is a Convention refugee for the following reasons.

ANALYSIS

Identity

[7]       The claimant’s oral testimony and supporting documents filed[2] establish his identity as a citizen of Sri Lanka.

Credibility

[8]       I find the claimant to be credible and therefore accept what he alleged in his oral testimony and his Basis of Claim form.[3] This case was very well documented: the claimant provided corroborating documents showing the results of his beating by the EPDP, photos of his uncles with the leader of the Tamil Tigers and proof of winning the singing contest in Sri Lanka.[4]

Nexus

[9]       I find that there is a link between what the claimant fears and one of the five Convention grounds, specifically, ethnicity as a young Tamil male from the northern part of Sri Lanka and therefore, the claim is assessed under section 96.

Persecution

[10]     The claimant fears that if he were to return to Sri Lanka today, the police, including the CID as well as the EPDP would harm him due to his leaving the country for a considerable amount of time, first to Thailand for two years and then to Canada for three years. The claimant fears that the EPDP may kidnap and harm him again.

[11]     In arriving at my decision, it is necessary to consider the most recent country documentation which makes it clear the nature of the claimant’s jeopardy if he were to return to Sri Lanka today.

[12]     I have reviewed the country documentation, both that was disclosed by counsel[5] as well as information in the most recent National Documentation Package.[6]

[13]     Although the civil war ended in 2009 and there was hope for the Tamils in Sri Lanka with the election of Maithripala Sirisena in January 2015, but all hopes were dashed with the election of Gotabaya Rajapaksa in November 2019. This government’s current objective is “to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilize the unitary Sri Lankan state.”[7] Furthermore, as counsel pointed out in his submissions, the current government is using the Prevention of Terrorism Act to persecute any criticism of the government as an act of terrorism.[8] Freedom House has also indicated that the human rights situation has deteriorated significantly, especially in Tamil areas since the election of November 2019.[9] This Response to Information Request also states that there are abusive practices by the police and security forces including extrajudicial executions, forced disappearances, rape and torture against the Tamils.

[14]     As a returning young Tamil male, the claimant would also be harassed by the CID due to his family’s prominent connections with the LTTE and the current and continuing presence of his uncle on social media in the United Kingdom. As counsel in his submissions indicated, due to the claimant’s family connection with the LTTE, the Prevention of Terrorism Act could be used against the claimant under this current government and thus, could be subject to torture.

[15]     In summary, I find that due to the current government’s treatment of Tamils in Sri Lanka, there is more than a mere possibility that the claimant would be persecuted if he were to return to Sri Lanka.

CONCLUSION

[16]     I therefore determine that the claimant is a Convention refugee. The Refugee Protection Division therefore accepts his claim.

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

[2] Exhibit 1, Package of information from the referring CBSA/IRCC; Exhibit 5, Photocopies of birth certificate, National Identity Card.

[3] Exhibit 2, Basis of Claim (BOC) form, TB7-08356.

[4] Exhibit 6, Claimant’s Supporting Documents – Photos of torture, singing contest and uncles, received [XXX], 2017.

[5] Exhibit 4, Country Conditions documentation.

[6] Exhibit 3, National Documentation Package (NDP) for Sri Lanka (September 1, 2020).

[7] Ibid., item 4.11.

[8] Ibid., item 2.6.

[9] Ibid., item 13.1.

Categories
All Countries Yemen

2020 RLLR 94

Citation: 2020 RLLR 94
Tribunal: Refugee Protection Division
Date of Decision: February 25, 2020
Panel:
Counsel for the Claimant(s):
Country: Yemen
RPD Number: MB9-22272
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000039-000047

I have considered your testimony and the other evidence in this case and I am ready to render my decision orally. These are the reasons for the decision in the claim of [XXX] who has declared to be a citizen of Yemen and is claiming refugee protection pursuant to Sections 96 and Subsection 97.1 of the Immigration and Refugee Protection Act.

[2]       I should tell you before we proceed any further that this is a positive decision for you.

[3]       You allege the following. You were born in Saudi Arabia. Your parents are Yemini and do not have citizenship in Saudi Arabia. You were living in Saudi Arabia pursuant to your father’s residency permit which was tied to his work as a doctor in Saudi Arabia. You left Saudi Arabia with your family when you were nine years old to live in Yemen where you lived until 2015 and then returned the following year to continue your studies.

[4]       You do not have citizenship in Saudi Arabia and have no right of residency there. You allege that you are at risk of death and detention and serious harm because you oppose the Houthi militias and the Houthi takeover of power in Yemen. You also fear that the Houthi militias will force you to fight for them. You further allege that your family is from Taizz and the Houthis perceive people from that region as being opposed in interest to them.

[5]       Moreover, you allege that the Houthis know that you have spent time in Saudi Arabia and they see you as aligned with Saudi interests. You allege that you were mistreated by the Houthi militia several times because you oppose them and refuse to join them and attend their gatherings. You allege that on [XXX] 2015 you left Yemen for Saudi Arabia with your family. You returned to Yemen after approximately one year because you wanted to continue your university studies after which you intended to return to Saudi Arabia.

[6]       You allege that on [XXX] 2018 you were home alone when approximately twelve armed Houthi militia members arrived in two armored cars and accused you of being aligned with the cause of Saudi Arabia and accused you of having explosives in your car. They broke in, detained you, took your phone, wallet and keys and everything of value in your home. They blindfolded you, called you a traitor, beat you and threatened to kill you.

[7]       They took you to an unknown location and accused you of being a Saudi agent. You were released after three days and left for Saudi Arabia several days later. You only returned to Yemen briefly to renew your Saudi Arabian residency. You left Saudi Arabia for the United States on [XXX] 2019 and came to Canada several days later. And your claim was referred to the Refugee Protection Division shortly thereafter.

Determination

[8]       I find that you are a “Convention Refugee” as you have established a serious possibility of persecution on account of your real or imputed political opinion against the Houthi militias and the Houthi takeover in Yemen. And your imputed political opinion in favor of the Saudi Arabian coalition forces. As such I find that you have established a nexus to Section 96 of the Refugee Convention.

Analysis

Identity

[9]       I find that your identity as a national of Yemen is established on a balance of probabilities by your testimony and the supporting documentation filed including your Yemeni passport.

[10]     Before I proceed any further with the analysis of your claim I would like to deal with the issues of your status in Saudi Arabia. While you were born in Saudi Arabia and lived there until you were nine your status has always been temporary and dependent on the sponsorship of a family member, your father who is employed there.

[11]     According to the objective documentary evidence Saudi Arabia does not grant citizenship to people in your circumstances and does not offer permanent residency status for foreigners. Given your written statements and the documents on file I am satisfied that you had only temporary status there and it cannot be concluded that you have had or could have rights and obligations akin to the possession of nationality in Saudi Arabia.

[12]     I am therefore satisfied that you have no permanent status either residency or citizenship in any other country aside from Yemen at this time. I make this conclusion in reliance on your testimony and the country condition documents found at tabs. 3.1, 3.4, 3.5 and 3.7 of the National Documentation Package for Saudi Arabia, March 29, 2019 version.

Credibility

[13]     I find you be a creditable witness and therefore I believe what you have alleged in support of your claims. You testified in a straightforward manner although you were nervous. There were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me which has not been satisfactorily explained.

[14]     In particular, you testified creditably as to your opposition to the Houthis militias and their take over of Yemen. You testified creditably as to your refusal to advocate for their cause and the mistreatment you suffered at the hands of the Houthi militia because of their perception that you are on the side of the Saudi regime.

[15]     I questioned you on your return to Yemen several times after the Houthis started visiting your home and your return to Yemen after you were detained by the Houthis in [XXX] 2018. Particularly your return to Yemen in [XXX] 2019.

[16]     You explained that you returned in 2016 only to complete your university studies and you did not intend to remain and that you tried to stay out of their way. And that before the [XXX] 2018 incident they had only verbally threatened you. You further explained that you returned in [XXX] 2019 only to renew your residency status in Saudi Arabia so that you could continue to live there for the time being.

[17]     I find your explanations in this regard to be reasonable in the circumstances and in consideration of the whole of the evidence including your personal profile and the country conditions evidence as to the current situation in Yemen I do not find that your behavior in that regard impugns your credibility generally or to be a determining factor in this case.

[18]     In addition, I questioned you on your failure to claim asylum in the United States despite having arrived in the United States before coming to Canada. You explained that you did not claim asylum there because of the current Trump administration’s stance on immigration. Considering the current climate around immigration in the United States I find your explanation to be reasonable and I find that your failure to claim in the United States does not impugn your credibility generally.

[19]     I have also considered the documents that you submitted into evidence namely your confirmation of admission to university in Yemen at Exhibit E2, a copy of your father’ s Yemeni passport demonstrating his birth place of Taizz at Exhibit E3, a copy of your birth certificate demonstrating your birth in Saudi Arabia and your parents Yemeni nationalities at Exhibit E4 and your Saudi Arabian residency card at Exhibit E5. You have also submitted several articles on the recent actions of the Houthi movement and militia.

[20]     After reviewing the documents, I have no reason to doubt their authenticity and coupled with my findings as to your creditable testimony I find that these documents corroborate your allegations. In consideration of the above I find that you have established your key allegations on a balance of probabilities and that you have a subjective fear of return to Yemen.

Prospective Risk of Return to Yemen

[21]     A Claimant must demonstrate that they would face a serious possibility of persecution on a Convention ground if they were to return to their country or that on a balance of probabilities return to their country would subject them personally to a danger of torture or a risk to their life or a risk of cruel and unusual treatment or punishment. You have indicated that if you return to Yemen your life would be at risk. You would be considered an enemy by the Houthis because of your refusal to join them and advocate for them and because of your background as having lived in Saudi Arabia and your family ties there as well as your family’s background in Taizz.

[22]     In considering your prospective risk of return to Egypt I have taken into consideration your personal profiles and your particular situation at the present time. I note that in your case you are a twenty-five-year-old single man. Your parents are from Taizz. You were born in Saudi and spent much of your childhood there. Your parents and most siblings have returned to Saudi Arabia and continue to live there. I have also taken into consideration the objective

[23]     I have taken into consideration the objective documentary evidence as to the current situation in Yemen particularly for those who are perceived as anti-Houthi or anti-militia and those who may be perceived as being in favor of the Saudi led coalition against the Houthi rebel groups.

[24]     The objective evidence clearly demonstrates that Yemen is the sight of an armed conflict that has lasted for several years and continues to this day involving the Houthis Sele rebels primarily from the northern region and forces loyal to the internationally recognized government based in the southern region.

[25]     The civil war began around 2015 when foreign powers led by Saudi Arabia intervened to support the government of President Hadi against the Houthi rebel movement and forces linked to the former president Sele. The conflict involves numerous armed groups or militias and all parties to the conflict have been reported to have committed serious violations of human rights including arbitrary executions, acts of torture, arbitrary detentions and use of weaponry against the civilian population.

[26]     The evidence further indicates that the armed groups engage in forced recruitment including the forced recruitment of child soldiers. The internationally recognized Yemeni government is said to be incapable of securing the whole of the territory. The evidence further indicates that those who are perceived as opponents to the Houthis including those perceived as supportive of the former regime and thus aligned with Saudi Arabia as well as their family members are at risk of violence from the Houthi militias. This includes risks such as death, disappearance, detention and kidnapping for ransom which are clearly persecution.

[27]     In considering this country evidence I refer specifically to Tabs 1.5, 1.7, 2.1, 2.2, 2.3, 2.4, 2.5 and 5.1 of the National Documentation Package for Yemen.

[28]     I have also taken into consideration the profile of your agents of persecution, the pro­ Houthi armed groups operating in Yemen. It is clear that armed groups including the Houthis engage in acts of violence against persons that they view as opponents and that this treatment amounts to persecution particularly for those who are perceived as aligned with Saudi Arabia.

[29]     In consideration of the objective documentary evidence and your creditable allegations I find that you have all established that you face a future risk in Yemen to being subjected to serious harm or violence including disappearance, detention and death and also in consideration of your particular profile I find that you have established that you are also at risk of forced recruitment into those armed groups or militias which you are opposed to.

[30]     As such I find that your subjective fear of returning to Yemen is objectively well-founded and that you face a serious possibility of persecution on a Convention ground, namely that of your real or imputed political opinion if you were to return to Yemen.

State Protection

[31]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of the current circumstances. I have discussed the objective documentary evidence concerning the current situation in Yemen. I have also discussed the setting of the major civil armed conflict that is going on there. The central state has either collapsed or lost control over large segments of the territory.

[32]     Serious crimes against humanity have been committed by internationally recognized government forces and opposition forces with impunity. Disregard for the rule of law is widespread and impunity is persistent and pervasive throughout the country. The evidence further demonstrates that civilians are disproportionately affected by the hostilities to the extent that thousands of people have been displaced.

[33]     In view of this evidence and in consideration of your personal profile I find that you have rebutted the presumption of state protection with clear and convincing evidence that the state or any other force exerting governing authority in Yemen is unable or unwilling to help you.

Internal Flight Alternative

[34]     Given your profile and the country conditions I find that no viable internal flight alternative exists for you in Yemen. The conflict exists throughout the country with notable divisions between the northern and southern regions. As well as pronounced sectarian divisions throughout the country. The Houthis and other armed groups are present throughout the country and the risks faced by you are not limited to any particular region in the country.

[35]     I also recall the absence of state protection for you throughout Yemen. In consideration of the country documents and your particular circumstances I find that you face a serious possibility of persecution throughout Yemen on the basis of your real or imputed political opinion and that there is no viable internal flight alternative available to you there.

Conclusion

[36]     Based on the analysis above I conclude that you a “Convention Refugees” and accordingly I accept your claim.  That concludes our hearing.

Categories
All Countries Cameroon

2020 RLLR 93

Citation: 2020 RLLR 93
Tribunal: Refugee Protection Division
Date of Decision: October 15, 2020
Panel: Torwoli Dzuali
Counsel for the Claimant(s): Laura Setzer
Country: Cameroon
RPD Number: MB8-27684
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000035-000038

DECISION

[1]       MEMBER: So, the claimant, [XXX], is a citizen of Cameroon claiming refugee protection in Canada pursuant to s. 96 and subsection 97(1) of Canada’s Immigration and Refugee Protection Act.  In hearing and deciding your claim, I apply the Chairperson’s Guidelines 4 on women refugee claimants fearing gender-related persecution.

[2]       And the decision I find that you are a Convention refugee under s. 96 of Canada’s Immigration and Refugee Protection Act as you face a possibility of persecution in Cameroon based on your membership in a particular social group, that being the anglophone minority in Cameroon.

[3]       As far as your allegations, in summary, you submit that you are a member of the minority anglophone community which has been marginalized and discriminated against by the francophone majority in Cameroon.

[4]       You allege that your father was a traditional leader in your hometown of [XXX] who was actively involved in speaking out for the rights of the anglophone minority and that he also supported anglophone separatist fighters.

[5]       On [XXX] the [XXX] 2018, you allege that military personnel came to your house in [XXX] looking for your father. And to escape, you ran into the bush and walked for hours to your aunt’s house in a neighbouring town.  You allege that the military returned a few days later and broke into your house.  You further allege that your father is still missing and that some of his close friends were killed by the military.

[6]       You departed Cameroon on [XXX] the [XXX], 2018, and arrived in Canada on [XXX] — sorry, you departed on [XXX] and arrived in Canada [XXX] of 2018.  And you filed for your refugee protection claim on [XXX] the [XXX] of 2018.

[7]       (audio cuts out) that you are afraid to return to Cameroon because of the continued harms (ph) perpetrated against anglophones by the government and also that you fear separatist fighters who might target you because they believe you have funds as a result of you living abroad.

[8]       As far as your identity, this was established by certified copy of your Cameroon passport and your birth certificate.

[9]       Regarding credibility, overall, I found you to be a credible witness and believe the allegations in your claim. You testified in a straightforward manner and there were no inconsistencies in your testimony or contradictions between your testimony, your BOC narrative, and the documentary evidence before me.

[10]     To support your claim, you provided documentary evidence, including sworn statements from your mother and two aunties corroborating the events described in your narrative and testimony.  You also provided articles about the ongoing conflict and the situation of anglophones in Cameroon.

[11]     You established your identity as a member of the minority anglophone community through your credible testimony and the documentary evidence, including your birth certificate which shows that you and your parents were born in anglophone areas of Cameroon, documents from your elementary, secondary, and tertiary schooling in Cameroon at English institutions, and a sworn statement from your mother corroborating your allegations.

[12]     You testified credibly about the events that occurred in Cameroon causing you to flee your home and your concerns about your father who is still missing and your other family members who have been displaced.  You also testified credibly about the ongoing conflict in Cameroon and your fears of the harm that you might face if you were to return.

[13]     Your allegations about the persecution of anglophones in Cameroon were supported by the objective documentary evidence.  Reports in the National Documentation Package at tabs 2, 4, and 13 indicate ongoing conflict in the northwest and southwest anglophone regions of Cameroon.  There are reports of widespread human rights abuses carried out by government security forces against civilian anglophone populations, including extra judicial killings, torture, arbitrary arrest, sexual violence against women, and massive displacements of civilian populations.  The reports also note atrocities being carried out by non-­state separatist fighters.  The documentary evidence highlights the longstanding marginalization of the anglophone population and restrictions on their rights to political expression and freedom of expression with reports of people being arrested and killed for violating these restrictions.

[14]     Overall, considering your testimony and the documentary evidence, I find that you have established on a balance of probabilities that you have a subjective fear of persecution in Cameroon based on your membership in the anglophone minority, which is objectively founded.

[15]     I also considered state protection.  The objective evidence supports your allegations that government security forces are the primary agents of persecution.  And accordingly, I find that it would be unreasonable for you to seek state protection.

[16]     I also considered whether you have a viable internal flight alternative in Cameroon.  Considering that the government is the primary agent of harm here and the objective evidence, which shows that persecution of anglophones across the county, I find that you do not have a viable internal alternative — sorry, internal flight alternative in Cameroon.

[17]     So, to conclude, having considered ail the documentary evidence and your testimony, I find that you, [XXX], face a serious possibility of persecution under s. 96 of the Immigration and Refugee Protection Act due to your membership in a particular social group, the anglophone minority in Cameroon.  Accordingly, I find that you are a Convention refugee and I accept your claim for refugee protection.

[18]     COUNSEL: Thank you.

[19]     CLAIMANT: Thank you.

[20]     MEMBER: So, thank you very much for your participation today.  And congratulations, and I do wish you all the very best.

[21]     CLAIMANT: Thank you.

[22]     COUNSEL: Thanks very much.

[23]     MEMBER: So, this hearing is now concluded.  The time is 10:37 a.m.

[24]     COUNSEL: Thanks.

[25]     MEMBER: Thank you.

[26]     CLAIMANT: Thank you.

[27]     COUNSEL: Okay.

—————–REASONS CONCLUDED —————–

Categories
All Countries Saudi Arabia

2020 RLLR 92

Citation: 2020 RLLR 92
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2020
Panel: Stéphane Hébert
Counsel for the Claimant(s): Jessica Lipes
Country: Saudi Arabia
RPD Number: MB8-20274
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000027-000034

REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

[2]       You allege the following: you have a friend named [XXX].

[3]       You are a [XXX]-year-old male from Jeddah, Kingdom of Saudi Arabia, your parents and siblings are all in Jeddah with the exception of a brother who is living in California, United States of America (USA).

[4]       When you were still seventeen years old, you were invited by your friend [XXX] to gather with a teenage group including boys and girls at his compound in Al Durrah Al Aros Beach, which is a residential area in Jeddah.

[5]       This was a second home for [XXX] family, but that house was not their main residence.

[6]       You alleged having been there in the past to gather with your friends and you never had a problem.

[7]       You stated that your gathering was disrupted by four religious police assisted by two regular policemen who broke the door and handcuffed you, before taking you all in their truck and then to a religious police station.

[8]       Once at the religious police station, the girls’ parents were called, they were released and picked up by their respective family while the boys including you were sent to prison.

[9]       You and [XXX] were sent to Dar Al Moahaza prison and the other boys to Breman prison.

[10]    You alleged that the other boys were released due to their family’s political influence while you and [XXX] remained detained.

[11]     You were forced to study and memorized the Holy Koran and when you failed to properly answer, you were hit or beaten.

[12]     You appeared to a Court along with [XXX] a month after your arrest. Being a minor and without legal representation, you were not allowed to speak, got sentenced one year of prison and were flogged 127 times.

[13]     You benefitted from the Prince forgiveness and were allegedly released after 53 days, but not before you were flogged 127 times.

[14]     Upon your release, you were treated at home by your mother and resume school following an agreement with the school direction, allowing you to finish your high school.

[15]     Your family and yourself decided that it would be better for you to pursue your studies abroad considering this incident and you left the Kingdom of Saudi Arabia for the USA in 2011.

[16]     You obtained a University degree in [XXX], but during your stay in the USA, you returned only twice for one week each time as you did not like being there.

[17]     Upon your return in the Kingdom of Saudi Arabia in 2017 and after you had experienced religious freedom in the USA, you had more and more problems to comply with religious regulations.

[18]     You had difficulties at Panasonic in Jeddah as you had been challenged on your religious belief or practice when it was time for the compulsory prayer.

[19]     You have also been arrested and detained for a day and a half as a result of your nonconformity appearance, considering that wearing an earring in the Kingdom is not very common.

[20]     Based on your previous arrest, detention and torture, while you were still a minor for simply being with teenagers of your age including boys and girls, you developed [XXX] and [XXX] since your return to the Kingdom of Saudi Arabia, as you did not feel secure anymore and considering that you could not easily surrender your freedom of conscience.

[21]     On [XXX] 2018, you met [XXX], a childhood friend whom you have not seen for years.

[22]     Your discussion deviated to the lifestyle in the USA compared to the prevailing in the Kingdom and you expressed criticism toward the religion and the government.

[23]     Later on, you saw the same friend in a police uniform when on your way to the gym as you were driving your brother’s car, you were pulled aside and requested to accompany him to the station for further investigation.

[24]     You immediately and spontaneously started running in order to escape and you went to your apartment where you received a call eventually from your brother saying that the police had already come to the family residence.

[25]     Being already in possession of a valid US visa, you called a travel agency and booked the first flight for the USA the next day at 4:00PM.

[26]     The next day, you rushed to the airport, waited for your flight and entered the USA the same day on [XXX] 2018.

[27]     You testified that you simply wanted to leave your country at that time as you knew that with a previous police file, you would be mistreated due to your opinion toward religion and the Kingdom.

[28]     You came to Canada on [XXX] 2018, after being in the USA for two days during which you had done research on the web and you claimed asylum.

[29]     A warrant of arrest was issued against you on [XXX] 2018, while you were in Canada but was made aware of it on [XXX] 2020.

[30]     You are fearful to go back to the Kingdom of Saudi Arabia as you will be arrested and detained.

DECISION

[31]     I find that you are a refugee, pursuant to section 96 of the IRPA, as there exists a serious possibility of persecution, should you return to Saudi Arabia, on account of your: religion, political opinion.

Identity

[32]     I find that your identity as a national of Saudi Arabia is established by the documents provided, namely your passport which was seized by the Canadian Border Services Agency and accordingly, you have met your burden.

Credibility

[33]     I find you to be a credible witness and therefore believe what you alleged in support of your claim.

[34]     You testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[35]     Initially, the tribunal had to confront you on some interrogations pertaining to your subjective fears (failure to claim asylum in the USA and returns to the Kingdom of Saudi Arabia) and the absence of supporting evidence concerning your conviction in the Kingdom of Saudi Arabia.

[36]     The question of subjective fear was raised as I noted that you did not seek asylum in the USA where you studied from 2011 to 2017, and you returned to the Kingdom of Saudi Arabia upon completing your University degree in the USA. However, the evidence indicates that you were only seventeen years old when you went to the USA and you testified that you had not made yet this decision to leave for ever your country, especially that you were missing your mother. This explanation seems reasonable in your alleged circumstances, especially the age factor and therefore does not raise significant concerns with respect to subjective fear or credibility

[37]     I further note that Refugee Protection Division (RPD) rule 11 requires you to provide acceptable documents establishing elements of your claim, or a reasonable explanation indicating why they were not produced.

[38]     You were indeed asked why you did not produce your court file and you stated that since you were a minor, your father had all the documents but forbid all discussions as they are still in Saudi Arabia and he is afraid of the repercussion of the family members, since it is of public knowledge that the Kingdom does not hesitate to pressure or persecute the remaining family members present in Saudi Arabia, to pressure the individual abroad to come back or comply with their request, and the claimant added that even his brother in California did not want to get involved and for the same reasons, did not issue any statement.

[39]     Ultimately, the claimant declared that without his father’s collaboration, he simply could not provide any document pertaining to his past arrest and detention as he was a minor unrepresented and all the documents were in the hands of his father who did not want to collaborate as he was extremely fearful of the potential consequences over the security of the family present in the Kingdom of Saudi Arabia.

[40]     Moreover, during that period, a diplomatic crisis was opposing Canada and the Kingdom of Saudi Arabia and the Kingdom spying attempts over their nationals in Canada were observed as it more fully appears from the objective documentary evidence.

[41]     I therefore find the explanation to be reasonable and coherent with the objective evidence.

[42]     Finally, the following evidence establishes your allegations as set out above the warrant of arrest issued by the State (Exhibit 4, item E-19). After reviewing the said document, I have no reasons to doubt its authenticity. Consequently, considering the testimonial evidence and this supporting evidence, the tribunal may easily conclude that shall you return to the Kingdom of Saudi Arabia, you will be arrested and detained.

Objective basis

[43]     Given that there are no serious credibility issues with respect to your allegations, coupled with the documentary evidence set out below, I find that you have established a prospective risk of being subjected to the following harm(s): arrest, detention and torture.

[44]     This risk is corroborated by the following documents:

The DOS Report for 2019 (Exhibit 3- item 2.1) mentions:

“The law also penalizes anyone who challenges, either directly or indirect/y, the religion or justice of the king or crown prince(…).”

“Statements that authorities construed as constituting defamation of the king, monarchy, governing system, or Al Saud family resulted in criminal charges for citizens advocating government reform.”

-and-

Significant human rights issues included unlawful killings; executions for nonviolent offences; forced disappearances; torture of prisoners and detainees by government agents; arbitrary arrest and detention; political prisoners; arbitrary interference with privacy; criminalization of libel, censorship, and site blocking; restrictions on freedoms of peaceful assembly, association, and movement; severe restrictions of religious freedom; citizens’ lack of ability and legal means to choose their government through free and fair elections; trafficking in persons; violence and official discrimination against women, although new women’s rights initiatives were implemented; criminalization of consensual same-sex sexual activity; and prohibition of trade unions.”

[45]     The Human Right Watch Report (Exhibit 3, item 2) states that:

“Surveillance is extensive inside Saudi Arabia, and even Saudis living abroad are vulnerable ta spying. In October, the University of Toronto’s citizen Lab found surveillance software on the phone of Omar Abdulaziz, a Saudi dissident living in Canada who was in regular contact with Khashoggi before this assassination”.

[46]     The Saudi Arabia World Report 2020 Events of 2019 from Human Right Watch (Exhibit 3, items 2-5) corroborated similarly situation for minor under the penal justice in Saudi Arabia in the following terms:

“Saudi Arabia applies Sharia (Islamic law) as its national law. There is no formal penal code, but the government has passed some laws and regulations that subject certain broadly defined offences ta criminal penalties. In the absence of a written penal code or narrowly-worded regulations, however, judges and prosecutors can convict people on a wide range of offences under broad, catch-all charges such as “breaking allegiance with the ruler” or “trying to distort the reputation of the kingdom.” Detainees, including children, commonly face systematic violations of due process and fair trial rights, including arbitrary arrest.”

[47]     Finally, the Report from Saudi Arabia: Freedom of the World from Freedom House 2019 (Exhibit 3, items 2-4), is well describing the socio-political reality of the Kingdom of Saudi Arabia:

“Saudi Arabia’s absolute monarchy restricts almost all political rights and civil liberties. No officials at the national level are elected. The regime relies on extensive surveillance, the criminalization of dissent, appeals to sectarianism and ethnicity, and public spending supported by oil revenues to maintain power. Women and religious minorities face extensive discrimination in law and in practice. Working conditions for the large expatriate labor force are often exploitative.”

[48]     The above stated objective evidence is describing the Kingdom of Saudi Arabia as a theocracy which persecute all forms of dissidence.

Nature of the harm

[49]     I have examined your claim under section 96 of the IRPA, as I conclude that the risk you describe constitutes persecution based on at least one of the grounds prescribed in section 96, specifically your religion and political opinion.

CONCLUSION

[50]     In light of the preceding, I conclude that you are a refugee, pursuant to section 96 of the IRPA. Accordingly, I accept your claim.

Categories
All Countries Nigeria

2020 RLLR 91

Citation: 2020 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2020
Panel: Haig Basmajian
Counsel for the Claimant(s): Otto Ibii
Country: Nigeria
RPD Number: MB8-11891
Associated RPD Number(s): MB8-11950, MB8-11951
ATIP Number: A-2021-00945
ATIP Pages: 000020-000026

REASONS FOR DECISION

INTRODUCTION

[1]       [XXX], the principal claimant, as well as her two minor children [XXX] and [XXX] are citizens of Nigeria. They are seeking refugee status pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). The principal claimant is the designated representative of her two minor children.

DETERMINATION

[2]       The Panel finds that the claimants are “Convention Refugees” under subsection 96 of the IRPA for the reasons indicated below.

ANALYSIS

Identity

[3]       The identity and nationality of the claimants have been established to the satisfaction of the Panel by taking into account the photocopy of their Nigerian passports contained in their respective files.[1]

ALLEGATIONS

[4]       The principal claimant’s Basis of Claim form (BOC), particularly her narrative and amendments, describes the details of her fear to return to Nigeria due to the violence she could face at the hands of her husband and his family, in addition to their insistence that their daughter, the claimant [XXX] be forced to a Female Genital Mutilation (FGM) performed on her. Given some of the content of this claim, which includes sensitive matters such as domestic abuse, the Panel took into consideration the Chairperson’s Guideline 4 of the Refugee Protection Division: Women Refugee Claimants Fearing Gender-Related Persecution.[2]

[5]       The principal claimant, accompanied by her counsel, testified via videoconference during the hearing. Given some significant additions and modifications to the narrative, notably that she was the victim of domestic abuse in Nigeria the claimant was asked to explain. The claimant answered that she had provided the modifications and new evidence to her former counsel who did not file these documents to the Refugee Protection Division (RPD).

[6]       In addition, she has recently had considerable personal issues such as a car accident and the recent surgery and hospitalization of her son following a serious cycling accident resulting in a ruptured pancreas, he was hospitalized on [XXX] 2020, and released a few days before the hearing on [XXX] 2020. Given that several documents were not submitted to corroborate these issues as well as the fact that she had just begun the preliminary process to divorce from her agent of persecution, the panel allowed the claimant the opportunity to submit these documents after the hearing. As such, several documents were submitted as evidence and the file was under reserve as of [XXX] 2020.

[7]       This additional evidence provided plausible explanations to explain some of the inconsistencies which were outlined during the hearing.

[8]       Given some of the context of the claim, including the evidence submitted before the hearing as well as Exhibits C-102 to C-106, submitted post-hearing, notably attesting the serious medical issues encountered by the claimants as well as the principles of Guideline 4, despite some contradictions and details regarding some aspects of the claims, the Panel concludes that the claimant’s fears appear to be genuine, on a balance of probabilities, as such the Panel will extend the benefit of the doubt and conclude that it is possible that she has been subject to years of violent domestic abuse as described during her testimony, in addition that her daughter could be subject to a forced FGM procedure.

[9]       Sadly, as the Panel can notice throughout the National Documentation Package (NDP) regarding Nigeria, staggering levels of violence towards women are unfortunately a frequent occurrence in that country. Notably page 30 of tab 2.1 of the NDP shows that “The law criminalizes rape, but it remained widespread. In March, UNICEF released a report noting that about one in four girls and one in ten boys were victims of sexual violence prior to their 18th birthday.”[3]

[10] Furthermore, page 34 from tab 1.4 of the NDP states that “Rape is common and widespread; societal stigma reduces the likelihood of victims reporting it or of perpetrators being prosecuted or punished.”[4]

[11]     The Panel also took into consideration some of the other elements submitted as evidence. Notably, at pages 6 to 34 from the objective country evidence submitted by the claimants in Exhibits C-3 to C-12 regarding the ongoing practise of FGM, which demonstrates that despite some efforts, it is still unfortunately widespread across Nigeria.

State Protection

[12]     Given, the above findings, the Panel must examine state protection. The leading jurisprudence, notably in Ward Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689, teaches us that States are presumed to be capable of protecting their citizens except in situations of a complete breakdown. In addition, the presumption that a state is capable of protecting its citizens underscores the principal that international protection comes into play only when a refugee claimant has no other recourse available. To rebut the presumption of state protection claimants must provide clear and convincing evidence of the State’s inability to protect its citizens.

[13]     In the present case, the claimant tried to obtain State protection. In addition, the claimant fears the repercussions from corrupt police.

[14]     In such cases, the panel is often guided by findings contained in objective evidence in order to ascertain the plausibility of the absence of state protection.

[15]     The claimant did submit some objective evidence in Exhibits C-30 and C-31 detailing the current state of widespread violence and corruption. The Panel also found similar findings in the NDP, particularly related to the state protection apparatus, notably at exhibits 2.1 and 1.4, respectively:

There were several reports that the government or its agents committed arbitrary, unlawful, or extrajudicial killings. The national police, army, and other security services sometimes used lethal and excessive force to disperse protesters and apprehend criminals and suspects.”[5]

Authorities did not always hold police, military, or other security force personnel accountable for the use of excessive or deadly force or for the deaths of persons in custody.”[6]

Police remained susceptible to corruption, committed human rights violations, and operated with widespread impunity in the apprehension, illegal detention, and torture of suspects.”

According to US DoS, the judiciary in Nigeria was affected by understaffing, underfunding, inefficiency, political interference, bribery, lacking equipment and training. As a result, the judiciary could not function adequately. Freedom House drew similar conclusions in its report for 2016.[7]

The Nigerian Police force has been criticized for corruption and human rights abuses by researchers and organizations over the years. In a recent study, the relationship between the police and the public in Nigeria was called perhaps the most troublesome in sub-Saharan Africa. Another source notes that the Nigerian Police Force is widely perceived by the public as the most corrupt violent institution in Nigeria.

In 2010 Human Rights Watch (HRW) concluded that the police was not only extorting money of ordinary civilians, but also that criminal suspects with money could simply bribe the police to find their own way out. HRW also reported that at least 100 000 police officers were hired as personal guards by the wealthy, at the expense of the majority.[8]

[16]     By considering the evidence in its entirety, the Panel finds that on a balance of probabilities, an individual with the profile of the claimant and the specific circumstances of this case has rebutted the presumption of state protection.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[17]     Several cities were suggested. However, by considering the profile of the principal claimant, who was abused by her husband for several years, this abuse was unfortunately not limited to her but to her son as well. In addition, her daughter fears to be forced to undergo an FGM and by taking into account the conclusion regarding state protection, finding a safe IFA is not a viable option per the Panel. Given the family link with the agent of persecution and the claimants it would be very possible that he can retrieve them and continue with his violent ways towards them. Furthermore, by considering some of the objective evidence from the NDP on page 16, from tab 1.4 as well as page 37 from tab 2.1, we see that despite its vast size and population, it is not simple or in many cases feasible to relocate, of course, depending on an individual’s profile:

“Nigeria is a large and complex country, with much internal variation, but the main divide that is brought up by Nigerians and foreign commentators alike, is the divide between the country’s south and north. This divide is based on historical, environmental, economic, cultural, linguistic, religious and political differences between these two parts.”[9]

“The country’s ethnically diverse population consisted of more than 250 groups speaking 395 different languages. Many were concentrated geographically. Three major groups– the Hausa, Igbo, and Yoruba– together constituted approximately one half the population. Members of all ethnic groups practised ethnic discrimination, particularly in the private sector hiring patterns and the segregation of urban neighbourhoods. A long history of tension existed among some ethnic groups.”[10]

[18]     After considering the evidence in its entirety, the Panel finds that on a balance of probabilities, an individual with the profile of the claimant and the specific circumstances of this case could not find a viable IFA in Nigeria.

CONCLUSION

[19]     For all these reasons, the Panel concludes that the claimants [XXX] and [XXX] are “Convention Refugees” and therefore accepts their refugee claims.

[1] Document 1 — Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Copy of passports.

[2] Chairperson’s Guideline 4 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996.

[3] Document 3 — National Documentation Package, Nigeria, 31 July 2020, tab 2.1: Nigeria. Country Reports on Human Rights Practices for 2019, United States, Department of State, 11 March 2020.

[4] Document 3 — NDP, Nigeria, tab 1.4: EASO Country of Origin Information Report: Nigeria, Country Focus, European Union, European Asylum Support Office, June 2017.

[5] Supra, note 3.

[6] Supra, note 4.

[7] Ibid, page 29.

[8] Ibid, page 30.

[9] Supra, note 4.

[10] Supra, note 3.

Categories
All Countries Haiti

2020 RLLR 90

Citation: 2020 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2020
Panel: Reisa Khalifa
Counsel for the Claimant(s): Luciano Mascara
Country: Haiti
RPD Number: MB7-17566
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000009-000019

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claim for refugee protection of [XXX] (the Claimant), citizen of Haiti. He is seeking asylum under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

DECISION

[2]       The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti, on the basis of his membership in a particular social group, namely Haitian men who are HIV-positive.

[3]       The Panel therefore finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.

SUMMARY OF ALLEGATIONS

[4]       The Claimant’s detailed allegations are contained in his Basis of Claim form (BOC).[1]

[5]       In summary, the Claimant fears for his life if he were to return to Haiti, as he is HIV- positive and the legal and socio-cultural environment of Haiti is hostile and even violent towards individuals with HIV, such that they may be attacked or discriminated against, may be denied medicine, food and shelter, and will not receive police protection.

[6]       The Claimant left Haiti around 1999 due to threats against him related to a family dispute and threats from his girlfriend’s brother, and went to the Dominican Republic, where he remained for 12 years under temporary residence visas that he kept renewing.

[7]       He then met an American woman of Haitian origin and they married, before moving to the United States (U.S.) together in [XXX] 2012. The Claimant had the status of a conditional resident of the U.S., which was based on his marriage to a U.S. citizen. This status allowed him to receive a U.S. permanent resident card in [XXX] 2012 that was valid until [XXX] 2014.

[8]       The relationship deteriorated, as the Claimant alleges that he was the victim of abuse by his wife and her adult son. His wife kicked him out of the house, and he found himself homeless.

[9]       In 2014, the Claimant became ill and went to a hospital, where he was diagnosed with HIV.

[10]     The Claimant applied for the renewal of his U.S. conditional resident status on its expiry. He then applied to remove the conditions of his residential status in 2016, by submitting various documentation to the U.S. authorities in an attempt to demonstrate that he had been in a good-faith marriage that had ended due to abuse, including a personal statement to explain his situation, a police report regarding an incident with his wife’s son, a letter from a [XXX], three affidavits in support of his application, and the marriage certificate.

[11]     The Claimant received a notice in [XXX] 2017 from the U.S. authorities that required him to submit additional documentation in support of his application, including proof of children of the marriage, proof that he and his wife had a common residence, a joint bank account statement with his wife and any joint financial planning arrangements. As the Claimant had no children with his wife, had been kicked out of the house, was in fact homeless and did not have a joint bank account with his wife, he had no additional documentation to provide.

[12]     The notice informed the Claimant that he must provide the additional documentation by [XXX] 2017 and that if he failed to do so, his application could be denied. As the Claimant did not believe that he could obtain any further documentation to satisfy the request, fearing deportation, he left for Canada in [XXX] 2017.

[13]     The Claimant claimed asylum here in [XXX] 2017.

ANALYSIS

Identity

[14]     The personal and national identity of the Claimant is established, on a balance of probabilities, by the documentary evidence on file, specifically his Haitian passport[2].

Exclusion 1E: Status in the United States

Intervention by Minister

[15]     The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened in writing and in person at the hearing, regarding a possible exclusion under section 1E of the Convention[3].

[16]     The Minister submitted that the Claimant should be excluded under section 1E due to his conditional resident status in the U.S., which they submit is a status with rights similar to that of nationals in the U.S., because he had left the country before receiving a confirmation as to whether or not that status had been revoked, after having taken appropriate action to remove the conditions associated with his conditional resident status.

[17]     The Minister’s position is that because the Claimant did not wait to receive a conclusive response regarding his status and did not return to the U.S., he should be considered to have voluntarily abandoned his conditional resident status in the U.S.

[18]     The Minister also submitted that the Claimant showed an absence of subjective fear that undermined his credibility, due to his decision to leave the U.S. and not return.

Status of the Claimant in the United States

[19]     The Claimant lived in the U.S. from [XXX] 2012 to [XXX] 2017. He was granted conditional resident status there in [XXX] 2012, which had been set to expire in 2014, but was then renewed and extended in [XXX] 2016 for another year.

[20]     According to the national documentation package for the United States, conditional residents have the right to work without restrictions, to study, to access social services, to leave and return without requiring a visa.[4] This information was also reflected in the exhibits of the Minister relevant to this issue.[5]

[21]     The Panel finds that the Claimant, as a conditional resident in the U.S., had rights that were substantially similar to those of nationals of that country.

Claimant’s Lass of Status in the United States

[22]     The Claimant’s conditional resident status had been extended until [XXX] 2017,[6] prior to him receiving a notice in [XXX] 2017.[7]

[23]     The [XXX] 2017 notice indicated to the Claimant that if he did not provide additional documentation in support of his application to remove the conditional status of his residence, his “case may be denied.”

[24]     The Claimant left the U.S. in [XXX] 2017.

[25]     Conditional residents who travel abroad for an extended period of time may apply for a re- entry permit prior to leaving the United States, which the Claimant did not do.

[26]     Conditional residents who fail to apply for a re-entry permit and who have lived outside the U.S. for more than two years may apply for a returning visa outside the country, but are not guaranteed admission into the U.S.

[27]     Given that the Claimant had left the country in [XXX] 2017 and given that his conditional resident status had only been extended to [XXX] 2017; given that the Claimant had applied to remove the conditions of his status, but had been told to provide further documentation that he then did not provide, failure to do so was advised that his application could be denied; given that the Claimant did not apply for a re-entry permit before leaving the U.S.; given that the Claimant did not apply for a re-entry permit after leaving the U.S., and more than two years have passed; the Panel finds that, on the balance of probabilities, the Claimant had lost his conditional resident status on the day of the hearing.

Zeng Analysis

[28]     The Panel must therefore examine the factors set out in Zeng[8], and consider the reason for the Claimant’s loss of status (voluntary or involuntary) in the United States; whether he could return to the country, the risk that he would face in his home country of Haiti, Canada’s international obligations, and any other relevant facts.

[29]     The Claimant alleges that he left the U.S. after trying to stabilize his status there, by submitting an application and supporting documentation in order to remove the conditions of his residence there.

[30]     The Claimant had submitted the following documents in support of his application: a personal statement; a police report; psychotherapy and counselling letters; three affidavits; a document indicating his residence; a budget letter; medical records; photographs; and his marriage certificate.

[31]     The Panel considers that the efforts put in by the Claimant to regularize his status in the

U.S. by renewing his conditional resident status, then by applying to remove the conditions on his residence, were reasonable. He prepared the necessary paperwork and provided numerous documents in support of his application.

[32]     The Panel considers that the decision of the Claimant to leave the United States, in the face of being advised that his application could be refused for not providing additional documentation, was reasonable due to his inability to provide the additional documentation requested by the authorities: he and his wife did not have children, so he could not provide any documents in that regard; he had been kicked out of the matrimonial home and did not have any documents that indicated his name was associated with the matrimonial home, as he had testified that the home was leased in his wife’s name; the Claimant did not have a joint bank account with the wife; and finally, the Claimant and his estranged wife had not made any joint financial arrangements.

[33]     It is therefore entirely reasonable that the Claimant would consider that he did not have the required documentation in order to finalize his claim for status in the U.S. The Panel finds that his decision to leave was based on his understanding that, on the balance of probabilities, his claim would be denied due to a failure to provide the additional documents. His failure to apply to re­ enter the U.S. is also found to be reasonable when looking at the facts through this spectre.

[34]     The Panel finds that the departure of the Claimant can therefore be deemed involuntary, as he believed that his failure to provide further documentation to the U.S. authorities would lead to his status being denied and his deportation back to Haiti. The Panel finds that in the context that the Claimant believed himself, on the balance of probabilities, to face deportation from the U.S. for the reasons just described, it is reasonable to believe that the Claimant believed that he had no choice but to leave.

[35]     The Panel finds that the Claimant is credible with respect to his allegations of fear of return to Haiti as an individual who is HIV-positive. The Claimant’s testimony regarding his reaction to finding out that he had HIV and his resulting alienation from family members in Haiti, including his sister who stopped talking to him after learning that he was HIV-positive, was credible and consistent with the socio-cultural environment in Haiti for HIV-positive individuals, as indicated in the national documentation package for Haiti.

[36]     When considering Canada’s international obligations, the Panel finds that the Claimant would face the serious possibility of persecution in Haiti based on his HIV status, as discussed more fully below, and that this engenders refugee protection.

[37]     The Panel therefore considers that Canada would be respecting its international obligations under the Convention by granting the Claimant asylum due to his credible allegations regarding his loss of status in the U.S. and his fear of return to Haiti.

Conclusion regarding Exclusion

[38]     The Panel therefore concludes that the Claimant is not excluded under section 1E of the

Convention.

Nexus to the Convention

[39]     The allegations of the Claimant establish a nexus to the Convention. He faces persecution based on his membership in a particular social group, which is HIV-positive Haitian men.

[40]     His claim, therefore, has been analyzed pursuant to section 96 of the IRPA.

Credibility

[41]     The Panel will only discuss the Claimant’s credibility with respect to his allegations regarding his HIV status, as this status is sufficient to meet the requirements of the IRPA. It is therefore not necessary to analyze the other allegations for the purpose of his claim.

[42]     The Panel finds that the Claimant is credible for the following reasons:

[43]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.[9] In this claim, the Panel has no such reason.

[44]     The Claimant provided detailed testimony regarding the circumstances under which he discovered himself to be HIV-positive, as well as producing documentary evidence.[10] He also testified in a straightforward fashion about the impact this status had on his relationship with his family members in Haiti, as well as the treatment that he would expect should he return to Haiti, including violence, due to widespread cultural prejudices against those with HIV.

[45]     The national documentation corroborates the testimony of the Claimant. One source indicates that there are “well-documented cases of people living with HIV/AIDS who experience stigma and discrimination and who are denied services because of their HIV status in the workplace, in education and health care, and even in communities where there are people living with HIV”.[11] Furthermore, the objective documentary evidence indicates that the rights of those with HIV are violated in other areas as well, including with respect to non-discrimination, housing, care, social security, assistance and well-being.[12]

[46]     The country conditions are such that there is no legal protection in Haiti against discrimination based on HIV-positive status.[13]

[47]     Prejudice against people living with HIV is prevalent in Haiti, as indicated by a 2012 survey that indicates 57.7 percent of adults would not buy vegetables from a shopkeeper or vendor if they knew that the person had HIV.[14] 61 percent of women and 55 percent of men reported discriminatory attitudes towards people living with HIV.[15]

[48]     The attitudes and treatment of people in Haiti living with HIV are connected to the overall prejudice in that country against those perceived to be homosexual, which is why those who seek treatment for HIV also face the danger of violence based on that perception of their sexual orientation: “even the mere suspicion of homosexuality may trigger violence”.[16]

[49]     Furthermore, beyond the absence of a law that prohibits discrimination against those with HIV, there is a lack of police protection for those perceived to be engaging in same-sex acts: “Haitian authorities do not generally respond when faced with violent acts against individuals who are sexual minorities.”[17]

[50]     The objective documentary evidence indicates at length that anyone perceived as homosexual faces violence not only by other civilians but by police as well.[18] The country conditions are replete with examples of people who seek police protection in Haiti for acts directed at them because of their perceived sexual orientation and are often ridiculed by police, who may either refuse to file a report or may even further victimize and humiliate them, including with physical assaults.[19]

[51]     The country evidence therefore demonstrates that the Claimant faces a serious possibility of persecution in Haiti, based on his membership in a particular social group, specifically HIV­ positive Haitian men.

[52]     For all of these reasons, the Panel finds that the Claimant’s allegations are credible.

[53]     The Panel, therefore, finds that the Claimant has established, on a balance of probabilities, that he faces the serious possibility of persecution if he returns to Haiti, based on his membership in a particular social group, that of HIV-positive Haitian men. The Panel finds that the Claimant has established, on a balance of probabilities, that he is HIV-positive, which he discovered when he went to a hospital in the U.S. after falling ill in 2014.

[54]     The Panel concludes that the Claimant faces a forward-looking serious possibility of persecution based on the aforementioned findings.

State Protection

[55]     Considering the evidence previously stated that discrimination against people with HIV is not legally prohibited in Haiti, in addition to the objective documentary evidence as discussed regarding the tendency of the police to tum a blind eye to violence against those perceived to be a sexual minority in Haiti, or even sometimes themselves be the perpetrators of violence against those perceived to be a sexual minority in Haiti, the Panel finds that state protection would not be available to the Claimant, if he were to approach the state for protection.

[56]     The Panel concludes that the Claimant has provided clear and convincing evidence that has rebutted the presumption of adequate state protection.

Internal flight alternative

[57]     The Panel finds that the Claimant faces a serious possibility of persecution throughout Haiti.

[58]     The country evidence before the Panel is that violent and hostile attitudes towards HIV­ positive individuals are prevalent throughout the country. The Panel finds that there is nowhere in Haiti the Claimant could relocate that would be safe and reasonable, due to his HIV status.

[59]     There is, therefore, no viable internal flight alternative for the Claimant anywhere in Haiti.

CONCLUSION

[60]     For all of these reasons, the Panel finds that the Claimant has established a subjective fear of return to Haiti that is objectively well-founded.

[61]     The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti in accordance with section 96 of the IRPA.

[62]     The Panel, therefore, finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.

[1] Document 2 — Basis of Claim Form (BOC).

[2] Document 1 — Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Passport.

[3] Document 6 — Minister’s Notice of Intervention and Exhibits M-1 to M-6.

[4] Document 5 — National Documentation Package, United States, 31 January 2020 (NDP USA), tab 3.2: The Immigrant Visa Process, United States, Department of State;

Document 5 — NDP USA, tab 3.4: Report on Citizenship Law: United States of America, European University Institute, European University Democracy Observatory on Citizenship, Peter J. Spiro, July 2015.

[5] Document 6 — Exhibits M-3, M-4 and M-5.

[6] Document 7 — Exhibit D-2.

[7] Ibid.

[8] Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118.

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

[10] Document 8 — Exhibit D-4.

[11] Document 3 — National Documentation Package, Haiti, 30 September 2019 (NDP Haiti), tab 1.12: Response to Information Request, HTI106236.FE, Immigration and Refugee Board of Canada, 4 March 2019.

[12] Supra, note 11.

[13] Document 3 — NDP Haiti, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2018, United States, Department of State, 13 March 2019;
Document 3 — NDP Haiti, tab 2.3: Report of the Independent Expert on the situation of human rights in Haiti, United Nations, Human Rights Council, 8 March 2017.

[14] Supra, note 11.

[15] Ibid.

[16] Document 3 — NDP Haiti, tab 14.1: Response to Information Request, HTI106204.FE, Immigration and Refugee Board of Canada, 29 November 2018.

[17] Ibid.

[18] Document 3 — NDP Haiti, tab 6.1: Response to Information Request, HTl104591.FE, Immigration and Refugee Board of Canada, 27 September 2013;
Document 3 — NDP Haiti, tab 6.2: Fighting for our Lives: Violence and Discrimination against Women and LGBT Persons in Haiti, ANAPFEH et al, October 2014;

Document 3 — NDP Haiti, tab 6.3: Supplementary information on Haiti regarding the treatment of lesbian, bisexual and transgender (LBT) persons and violence against women’s human rights defenders, FACSDIS et al, 12 June 2015;

Document 3 — NDP Haiti, tab 6.4: Haiti : La situation des minorités sexuelles et de genre, France, Office

français de protection des réfugiés et apatrides, 10 May 2016.

[19] Ibid.

Categories
Afghanistan All Countries

2020 RLLR 89

Citation: 2020 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2020
Panel: Chad Prowse
Counsel for the Claimant(s): Kay Scorer
Country: Afghanistan
RPD Number: VB9-08564
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000001-000008

REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

[2]       The claimant identifies his ethnicity as Hazara and his religion as Shia.

[3]       He worked as an [XXX] and [XXX] in Afghanistan on many [XXX] projects for the [XXX].

[4]       He and/or his relatives were threatened by anti-government elements (AGEs) including members of the Taliban on multiple occasions due to his employment. He was also attacked by the Taliban in [XXX] 2013, in Ghazni Province, and he was shot at in Kabul in [XXX] 2019.

[5]       These threats and assaults all took place in Ghazni province, the claimant’s family’s place of origin in Afghanistan, with the exception of the attack in Kabul in [XXX] 2019.

[6]       The claimant knows persons in his situation and/or with his profile who have been killed by the Taliban. He identifies them in his narrative.

[7]       The claimant left Afghanistan and traveled to Canada on a visitor visa in [XXX] 2019.

[8]       The claimant is afraid that he will be killed or harmed by AGEs because of his employment and profession.

DETERMINATION

[9] I find that the claimant is a Convention refugee as he has established a serious possibility of persecution on account of his race, religion and political opinion for the following reasons.

ANALYSIS

[10]     The determinative issue in this case is credibility.

Identity

[11]     I find that the claimant’s identity as a national of Afghanistan is established by the documents provided: passport; national identity card.[2]

Credibility

[12]     The claimant testified in a straightforward manner and there were no material contradictions, inconsistencies, or omissions in his testimony. He provided detailed and spontaneous testimony about his employment history as a [XXX] for [XXX].

[13]     Based on the documents in the file, I have noted no serious credibility issues. In particular, the following evidence helps to establish the allegations as set out above: employment agreements and contracts; copies of employment identification cards; education documents. After reviewing the documents, I have no reason to doubt their authenticity.

[14]     I do not draw any significant negative inference from the fact that the claimant failed to claim asylum in [XXX] or Canada in 2018, or [XXX] in 2019, and the fact that he did not leave Afghanistan until [XXX] 2019 notwithstanding his valid Canadian visitor visa. Firstly, I accept the claimant’s testimony that he believed that he was relatively safe in Kabul from the threats in his home province, providing he took basic precautions, which I accept that he did. He realized that this assumption was erroneous when he was attacked in Kabul in 2019. He did not delay in leaving Afghanistan after this incident. Secondly, the claimant was motivated to return to Afghanistan despite some level of risk, after completing his Master’s degree in [XXX] which he believed would increase his capacity to help his country. Thirdly, his trip to [XXX] took place before the attack in Kabul, and its purpose was to seek medical treatment for family members. Overall, I find that these considerations do not undermine the claimant’s credibility or his subjective fear of persecution in Afghanistan.

Well-founded fear of persecution

[15]     The available country evidence in the National Documentation Package (NDP)[3] establishes that there is an objective basis for the claimant’s fear, and that he falls under numerous intersecting risk profiles, contributing to his overall situation of risk.

[16]     According to the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Afghanistan,

[17]     AGEs [anti-government elements] are reported to systematically target civilians who are associated with, or who are perceived to be supporting the Afghan Government, pro­-Government armed groups, Afghan civil society and the international community in Afghanistan, including the international military forces and international humanitarian and development actors. The (perceived) association with any of these actors may arise for example through current or former employment or family ties. Civilians who have been targeted include district and provincial governors, judicial and prosecution staff, former and off-duty police officers, tribal elders, religious scholars and leaders, women in the public sphere, teachers and other civilian government workers, civilians perceived to oppose AGE values, human rights activists, and humanitarian and development aid workers. Between 1 January and 31 December 2017, UNAMA attributed 570 targeted killings to AGEs, which caused 1,032 civilian casualties (650 deaths and 382 injured) and accounted for 10 percent of all civilian casualties during the year. The number of such incidents perpetrated by AGEs increased from 483 in 2016 to 570 in 2017, and the number of civilians killed in such incidents increased by 13 per cent.[4]

[18]     According to the EASO report on “Afghanistan Individuals targeted by armed actors in the conflict”.

[19]     In 2016, UNAMA recorded 481 incidents targeting government officials, including judges, prosecutors and judicial staff but not including ANSF, resulting in 521 casualties. For example, in 2016 in Kandahar City, there was a continued spree of execution style killings of civilians working for or perceived as having connections with, the local authorities… [However] [t]argeting by the Taliban is not limited to those who are government employees, but also to those who are accused of being a supporter of the government. In 2013, UNAMA documented 246 attacks against civilians who had no official affiliation to government, NGOs or recognised civilian institutions (i.e. medical, education, elections, development programming). These attacks against civilians resulted in 532 civilian casualties… Through their parallel judicial system, the Taliban also punished those they accused of being a spy, and passing on information on the Taliban to the government. According to Giustozzi, spying for the government is considered a crime per se, without the possibility to repent.[5]

The UNHCR also reports that,

There are reports of individuals who returned from Western countries having been threatened, tortured or killed by AGEs on the grounds that they were perceived to have adopted values associated with these countries, or they had become “foreigners” or that they were spies for or supported a Western country. Returnees are reportedly often treated with suspicion by the local community as well as by State officials, leading to discrimination and isolation. Individuals who fall under other profiles, such as profile 1.e (humanitarian workers and development workers) and profile 1.e (women in the public sphere) may similarly be accused by AGEs for having adopted values and/or appearances associated with Western countries, and may be targeted for that reason.[6]

[20]     The claimant is also a member of a minority ethnic or religious group in Afghanistan, having self-identified his ethnicity as Hazara. According to the United Nations High Commissioner for Refugees (UNHCR) Guidelines, ethnicity and religion in Afghanistan are inextricably linked, especially in the case of Hazaras.[7] The objective evidence shows that Hazaras suffer discrimination and are victims of violent attacks by AGEs. A Response to Information Request (RIR) from the Immigration and Refugee Board (IRB) states that “the position of Hazaras as an overwhelmingly Shiite non-Pushtun minority makes them an easy target for the overwhelmingly-Pushtun Taliban seeking to rebuild support from Sunni Pushtun groups…”[8]

[21]     On a balance of probabilities, I accept that the claimant worked as a [XXX] for [XXX] in Afghanistan; that this information came to the attention of the Taliban, initially in Ghazni province; and that he is a member of a minority ethnic or religious group in Afghanistan, that is targeted by AGEs merely on the basis of race or religion. The country evidence establishes that the claimant faces a well-founded fear of persecution.

State Protection

[22]     While states are presumed to be capable of protecting their nationals, it was open to the claimant, according to the law, to rebut the presumption of protection with “clear and convincing” evidence.[9]

[23]     The evidence in the National Documentation Package shows that while state authorities in Kabul and other cities controlled by the government may be willing to offer protection, in general that protection is unlikely to be effective or adequate.

[24]     Additionally, according to the U.S. Department of State, corruption in the police and justice system is pervasive.

[25]     I find, on the evidence, that the claimant has rebutted the presumption of state protection.

Internal Flight Alternative

[26]     I have considered whether a viable internal flight alternative exists for the claimant. On the evidence before me, I find that there is a serious possibility of persecution throughout Afghanistan.

[27]     The available country information establishes that with respect to state protection, the central government is generally strongest in Kabul and possibly a few other big cities such as

Herat and Mazar-i-Sharif.[10]

[28]     However, the preceding analysis has shown that even in Kabul and Mazar-i-Sharif, state protection is ineffective and inadequate for persons in the claimants’ situation.

[29]     Additionally, there is evidence that the Taliban are able to find a person who relocates to a different area, particularly when targeting their “well known or well positioned opponents.”

[ 30]    Also, the Taliban generally has the capability to track individuals, through the use of “formal and informal communication” networks to obtain information about a person’s whereabouts. While it is more difficult to track people who have moved into urban environments, even there the Taliban have spies and members who can gather considerable

information.[11]

CONCLUSION

[31]     Based on the analysis above, I conclude that the claimant is a Convention refugee. Accordingly, I accept his claim.

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

[2] Exhibit 1.

[3] Exhibit 3.

[4] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. United Nations High Commissioner for Refugees. 30 August 2018.

[5] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.18: EASO Country of Origin Information Report. Afghanistan: Individuals targeted by armed actors in the conflict. European Union. European Asylum Support Office. December 2017.

[6] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. United Nations High Commissioner for Refugees. 30 August 2018.

[7] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.5: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. United Nations High Commissioner for Refugees. 30 August 2018.

[8] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 13.2: DFAT Thematic Report: Hazaras In Afghanistan. Australia. Department of Foreign Affairs and Trade. 18 September 2017.

[9] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 1.21: ? Afghanistan. The precarious struggle for stability. Canada. Canadian Security Intelligence Service. May 2019.

[10] Exhibit National Documentation Package, Afghanistan, 31 March 2020, tab 1.6: Country Policy and Information Note. Afghanistan: Afghans perceived as “Westernised”. Version 1.0. United Kingdom. Home Office. January 2018.

[11] Exhibit 3, National Documentation Package, Afghanistan, 31 March 2020, tab 14.1: Whether the Taliban has the capacity to pursue individuals after they relocate to another region; their capacity to track individuals over the long term; Taliban capacity to carry out targeted killings (2012-January 2016). Immigration and Refugee Board of Canada. 15 February 2016. AFG105412.E.

Categories
All Countries Kenya

2020 RLLR 88

Citation: 2020 RLLR 88
Tribunal: Refugee Protection Division
Date of Decision: August 28, 2020
Panel: Kerry Cundal
Counsel for the Claimant(s): Bashir A. Khan
Country: Kenya
RPD Number: VB9-09240
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000186-000191

DECISION

[1]       MEMBER:   Okay, welcome back, we’re now on the record again.  Okay, good news, I am going to accept your claim, okay?  And I’m going to give you my decision and reasons for doing so today, okay?

[2]       All right, so it’s the beginning of the next chapter, I’ll give you the decision and reasons now.

[3]       This is the decision of the Refugee Protection Division in the claim of [XXX], a citizen of Kenya, who is claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act. Your identity has been established on a balance of probabilities by a copy of your Kenyan passport found at Exhibit 2.

ALLEGATIONS:

[4]       You fear return to Kenya because you fear persecution, including death threats and imprisonment because of your sexual orientation as a gay man.  You left in [XXX] of 2019 and travelled directly to Canada.  You provided significant details in your Basis of Claim form. Your passport is at Exhibit 1, and your Basis of Claim form is at Exhibit 2. I will highlight some of your details of your narrative and testimony today in this decision. I have also reviewed and applied the Chairperson’s Guideline Nine, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. And in particular I am mindful of the socio-cultural context of a sexual minority who has lived in a country where same sex activities are criminalized, and societal violence continues today against sexual minorities in Kenya.

DETERMINATION:

[5]       I find that you have established that you are a Convention refugee pursuant to Section 96 of the Act for the reasons that follow.

ANALYSIS:

Credibility

[6]       You testified in a straightforward and consistent manner today, and I find that you are a credible witness.

Well-founded Fear of Persecution and Nexus

[7]       As I’ve indicated, you’ve testified in a straightforward manner today. You provided details with respect to your sexual orientation in particular. You gave details about your relationship with [XXX], which was a long-term relationship of approximately 11 years. You testified that you met [XXX] while you were both working for [XXX].  You testified that you and [XXX] kept this relationship secret because it’s illegal to be in an open gay relationship in Kenya. You testified that you would do weekend trips together, go watch rugby games together.  You testified that your wife, [XXX], did not know about this.  You testified that you married [XXX] in 2018, but you had known her and been with her since 2007, and your son with [XXX] was born in [XXX]. You testified that your understanding is that [XXX] did not, although she had suspicions, she did not fully know that you were gay until after you had already arrived in Canada when she understood why you had left Kenya.

[8]       You testified that your career was going well and that you had a good life in Kenya. But as a result of threats, extortion, blackmail, from your former boyfriend, [XXX], that the threats became so significant up until before you left in 2019, that you feared for your life.

[9]       You also testified that one of the threats that you returned by text was a photo of your son and an indication that the texter (ph) knew that – where your son went to school. And at that point you testified you understood that these threats were very serious.  And you testified that the relationship ended with [XXX] in 2011, and subsequent to that [XXX] would ask you for money, as you testified he considered that you should look after him, paying rent, buying things for him, or he would threaten to out you or tell others that you were gay.  And so out of fear you continued to financially support [XXX] over the years.

[10]     You testified that you later learned that [XXX] was part of a larger group that was involved in extortion and threats against sexual minorities in terms of outing them if they did not pay rent according to the demand.

[11]     You also provided genuine testimony today regarding your life experience as a gay man in Kenya, and the fears that you had in terms of making sure that no one ever knew about your sexual orientation. You testified about the struggles that you had in coming to Canada. You testified that you were homeless and had nothing when you first arrived in Canada and it was through the Mennonite Church and the Sunshine House where you felt welcome as a gay man and you were able to get on your feet and get a home.

[12]     You testified that you’ve been able to open up about things that have happened to you and about your sexual orientation for the first time in your life here in Canada where you’ve been free. You’ve testified that you have issues because of the trauma because of this relationship with [XXX], and so you’ve testified that you have trust issues and you’re not ready for another relationship.  You also testified that you spoke to your wife about a month ago and you testified that you have no idea where that relationship is at or whether she has any interest in the relationship with you. You testified that she was in disbelief and shock and not a positive response to coming to grips with the fact that you are a gay man, from your wife’s perspective, as you testified.

[13]     Based on the totality of the evidence before me, I find that you have established a nexus to a Convention ground, membership in a particular social group due to your sexual orientation as a gay man.  You also provided corroborative documents at Exhibit 4, including the letter from the Sunshine House with respect to your sexual orientation. As well as some of your employment documents, education documents, as well as identity documents including your marriage certificate to [XXX]. And this is found at Exhibit 4.

[14]     The objective evidence supports your fear of return to Kenya as a gay man, and at the National Documentation Package, item 2.1, which is a U.S. Department of State Report it indicates that there is criminalization of homosexuality in Kenya. The National Documentation Package, item 6.1, which is a report from an international association supporting sexual minorities, and it specifically outlines section 162 of the Penal Code which criminalizes same-sex activities. It further gives more details regarding the persecution of sexual minorities in Kenya, including by the police officers. It indicates that police officers will do forced anal examinations with respect to finding proof that an individual is a sexual minority.

[15]     It also indicates that there are reports of mob violence and beatings against sexual minorities throughout Kenya, and the police will then arrest the victim, the person who is a member of a sexual minority after the mob has beaten them. The penalty for same-sex activities in Kenya continues to be 14 years in prison. The National Documentation Package, item 2.2 which is a Human Rights Watch Report, also indicates that the human rights abuses in Kenya are perpetrated by security forces and the police. There continue to be extrajudicial killings and disappearances. And it also indicates that the High Court in Kenya upheld the laws against same-sex activities in Kenya. So, unfortunately, today the situation for sexual minorities in Kenya is very dire indeed.

[16]     With respect to State protection and internal flight alternative. Given the objective evidence that the State is an agent of harm against sexual minorities, such as yourself as a gay man, I find that there is no State protection available to you as they are the perpetrator of the human rights abuses that you would face in Kenya.

[17]     Further, given that the laws against sexual minorities cover all of Kenya, I find that it would be neither safe nor objectively reasonable in all of the circumstances, including your particular circumstances as a gay man, to try to relocate anywhere in Kenya to be safe.  Accordingly, I find that there is no Internal Flight Alternative available to you.

CONCLUSION:

[18]     For the foregoing reasons, I determine that you are a Convention refugee pursuant to Section 96 of the Act and the Board, therefore, accepts your claim.

[19]     Okay. Thank you, Counsel, and, sir, I wish you all the best in all of your future endeavours, okay?

———- REASONS CONCLUDED ———-

Categories
All Countries Jordan

2020 RLLR 87

Citation: 2020 RLLR 87
Tribunal: Refugee Protection Division
Date of Decision: March 16, 2020
Panel: Preeti Adhopia
Counsel for the Claimant(s): Anu Kumar
Country: Jordan
RPD Number: VB9-05302
Associated RPD Number(s): VB9-05311, VB9-05316
ATIP Number: A-2021-00800
ATIP Pages: 000175-000185

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claims of [XXX] (the “principal claimant”) and his daughter, [XXX] (the “minor claimant”), as citizens of Jordan, and his wife, [XXX] (the “associated claimant”) as a former habitual resident of the United Arab Emirates (UAE) who are all claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

ALLEGATIONS

[2]       The principal claimant is a [XXX]-year-old Palestinian who was born to Jordanian parents in Kuwait. Since there is no birthright citizenship in Kuwait, he does not have any status there. He and his family moved back to Jordan in 1990. After finishing university in 1999, the principal claimant took a job in the United Arab Emirates and has lived there ever since.

[3]       The associated claimant is a [XXX]-year-old stateless Palestinian who was born in a refugee camp in Syria. Her family moved to the UAE when she was two months old because her father was politically active and faced arrest by the Syrian government. She has lived in the UAE ever since then. In 2004, the associated claimant married the principal claimant.

[4]       In [XXX] 2011, the associated claimant travelled to Syria for a visit. During this visit, the war broke out and she was detained along with other family members because authorities were seeking her uncle. They beat her and questioned her about the political activities of her father

and uncle. After this event, the associated claimant returned home to the UAE.

[5]       In [XXX] 2017, the principal claimant visited Jordan. He had been having a dispute with his cousins concerning inheritance from their grandfather and wanted to resolve it. When it could not be resolved, his cousins resorted to threats to have the principal claimant jailed or killed. The principal claimant’s cousins contrived a plan to harm him by provoking an honour crime. During university, he had a relationship with a woman and proposed marriage to her. The proposal was refused by her family. The principal claimant ran into the woman on this trip to Jordan and so they decided to meet up again. His cousins photographed these encounters and provided the pictures to the woman’s husband. The cousins convinced the woman’s husband that the principal claimant was having an affair with her. The husband and his wife’s family vowed to kill the principal claimant to restore their honour. When the principal claimant complained to the police, they refused to take a report. That same day, he was attacked by three armed men who vowed to kill him. As a result, the principal claimant fled Jordan and returned home to the UAE.

[6]       When the principal claimant lost his job in 2019, it cancelled the claimants’ residency status in the UAE. Not wanting to return to Jordan or Syria, the claimants came to Canada. They fear that if they return to Jordan or Syria, they will face persecution and other risks.

DETERMINATION

[7]       I find that, pursuant to section 97(1) of the Act, the principal claimant is a person in need of protection as he faces a risk to his life or of cruel and unusual treatment or punishment in Jordan, on a balance of probabilities.

[8]       I find that the minor claimant is not a Convention refugee as she does not have a well- founded fear of persecution related to a Convention ground in Jordan. I also find that the associated claimant is not a person in need of protection, in that her removal to Jordan would not subject her personally to a risk to life or to a risk of cruel and unusual treatment or punishment. There are also no substantial grounds to believe that her removal to Jordan would subject her personally to a danger of torture.

[9]       I find that the associated claimant is not a Convention refugee as she does not have a well-founded fear of persecution related to a Convention ground in the UAE. I also find that the associated claimant is not a person in need of protection, in that her removal to the UAE would not subject her personally to a risk to life or to a risk of cruel and unusual treatment or punishment. There are also no substantial grounds to believe that her removal to the UAE would subject her personally to a danger of torture.

ANALYSIS

Identity

[10]     The principal and minor claimants’ identities as nationals of Jordan are established by testimony and their passports in evidence.[2] The associated claimant’s identity is substantiated by her Syrian travel document for Palestinians in evidence.[3] I am satisfied of the claimants’ identities by these documents.

Country of Former Habitual Residence

[11]     I have considered the test for stateless claimants as set out by the Federal Court of Appeal in Thabet:

In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her other countries of former habitual residence.[4]

A country of former habitual residence refers to “a situation where a stateless person was admitted to a given country with a view to continuing residence of some duration, without necessitating a minimum period of residence,” and where there is a “sufficient period of de facto residence.”[5]

[12]     The associated claimant is stateless. She was born in the Yarmouk refugee camp in Syria to stateless parents. Palestinians in Syria, even if they were born there, are not granted Syrian citizenship “in order to preserve their original nationality.”[6] Her travel document is not a passport and does not entitle her to the rights of a citizen, residency, or even a right of entry to Syria.[7] Although the associated claimant only made allegations against Syria, and it was submitted that Syria is her only country of habitual residence, no explanation for why this is the case was provided. I disagree that Syria is the associated claimant’s country of former habitual residence. She only resided there for the first two months of her life. Her father was the first in the family to leave Syria before the rest of the family joined him shortly after she was born. This indicates that there was likely no view to continuing residence once the associated claimant was born because she and her other family members joined her father after her birth. Also, two months out of the associated claimant’s [XXX] years does not constitute a sufficient period of de facto residence in my view. Although she visited Syria since her birth, she never lived there again.

[13]     It was argued that the UAE is not a country of former habitual residence in the associated claimant’s case, but the only argument presented in support of this is that she has no status there. I note that she does not have status in Syria either, yet it was argued that Syria is a country of former habitual residence. In any case, the fact that a claimant has no status in a country is not relevant to the issue of whether or not it is a country of former habitual residence. The test for determining habitual residence has been stated above. Since the associated claimant resided in the UAE for a significant period of time – [XXX] years – with a view to continuing residency, including going to school and working, I find that the UAE is her only country of former habitual residence.

Credibility

[14]     At the hearing, both claimants gave testimony that was generally clear and direct. The principal claimant provided a number of details to flesh out information in his narrative, which gave weight to his allegations. He also clarified a few issues, including that he does not know if his former girlfriend has been killed; this was speculation on his cousin’s part. There were no material inconsistencies or contradictions within the claimants’ evidence that were not reasonably explained or that undermined their credibility in respect of their central allegations.

[15]     The claimants submitted evidence to corroborate some of their allegations. This includes 11 statements from his family, relatives, neighbors, a friend and a colleague.[8] Together, they substantiate the principal claimant’s past relationship in university, his cousins’ plan to make it look like he was having an affair, his assault, and that people continue to seek his whereabouts. The associated claimant also submitted seven statements from her family members, though they all relate to her risk in Syria, which I have found is not a country of reference. Based on the presumption of truthfulness, the claimants’ consistent testimony and the corroborative evidence, I accept the claimants’ allegations as credible.

Well-Founded Fear of Persecution & Risk of Harm

Principal Claimant – Jordan

[16]     In this case, I do not find that the principal claimant’s allegations form a nexus to the Convention. That is to say, he does not fear his former girlfriend’s family on the basis of his race, religion, nationality, political opinion, or membership in a particular social group. Rather, he fears them because they mistakenly believe he had an affair that violated their honour. As such, this claim must be assessed under section 97(1) of the Act.

[17]     I find that the principal claimant faces a risk to his life or of cruel and unusual treatment or punishment on a balance of probabilities. His cousins led his former girlfriend’s family to believe that he was having an affair with her by showing them pictures of the pair meeting up. In fact, the principal claimant had not seen her in about 20 years when he ran into her and they were simply catching up on each other’s lives. Nonetheless, the principal claimant received information from a cousin he is on good terms with that other cousins had concocted the plan and the woman’s family vowed to kill him. The principal claimant was so fearful of the threat, that he pre-emptively reported that he was a potential victim of an honour crime to police. He was then beaten by three armed men who vowed to kill him to restore their honour, until bystanders intervened. After he left the country, individuals have persistently sought his whereabouts from his family.

[18]     The country condition evidence on Jordan is replete with information about the serious problem of so called “honour” crimes. However, all of the same sources indicate that women are generally the victims of these crimes. Whether it is labelled an honour crime when committed against a man or not, the fact is, the woman’s husband and family are furious; they assaulted him and vowed to kill him. They are also still interested in locating him. Based on the death threats against the principal claimant, his assault, the ongoing interest of the perpetrators, and the fact that Jordan has a culture of honour crime, I find that the principal claimant faces a likely risk of section 97 harm.

Minor Claimant – Jordan

[19]     The principal claimant testified that he fears that if his daughter returns to Jordan, his agents of harm might kill her. I do not find sufficient evidence that this is so. There is no indication that the woman’s family has threatened to harm his family members in order to punish him. Were this the case, his family members who have been approached for the principal claimant’s whereabouts would have accordingly been harmed. But, there is no evidence that this was the case. In addition, there is no evidence to indicate that perpetrators of honour crimes harm family members of the person who dishonoured them. Thus, the evidence is insufficient to demonstrate that the minor claimant faces a serious possibility of persecution or risk of harm on this basis.

[20]     Although the adult claimants did not raise any gender-based fears for their daughter if she returns to Jordan, I have nonetheless considered it in accordance with the Chairperson’s gender guidelines. I find that women in Jordan experience discrimination in a number of areas such as inheritance, divorce, child custody, citizenship, pension, social security benefits, the workplace, and, in certain circumstances, the value of their testimony in Sharia court.[9] While there is discrimination against women in Jordan, even when taken together, I do not find sufficient evidence to demonstrate that it rises to the level of persecution or poses section 97 risks in the minor claimant’s particular case.

[21]     Overall, I find that there is insufficient evidence that the minor claimant would face a serious possibility of persecution or likely risk of harm if she returns to Jordan. As such, there is no need to assess state protection or an Internal Flight Alternative (IFA) in her case.

Associated Claimant – UAE

[22]     I find that the associated claimant does not have a well-founded fear of persecution or a risk of section 97 harm on a balance of probabilities in the UAE. She did not make any allegations against the UAE in her Basis of Claim form. At the hearing, she was asked whether she has any fear of returning to the UAE, notwithstanding the fact that she no longer holds valid residency there. She testified that she has no fear and would still be living there if her husband had not lost his job. His employment was tied to their residency because “work sponsorship is an essential pre-requisite for becoming a legal resident” and the loss of employment would result in a loss of status in the country.[10] She was also asked if she faced any kind of problems in the UAE. Again, she replied that she did not and that she was able to go to school, attend university, and work for 12 years. She had to stop working because employers give preference to citizens over foreign nationals. She was also asked about any obstacles she faced in her life. She only referred to delays in getting passports and residency permits. I do not find that any of this treatment rises to the level of persecution or section 97 risks. A requirement for non-citizens to have sponsored employment to maintain residency is unrelated to a Convention ground.[11] A state is entitled to enact and enforce its own citizenship and residency laws. While I acknowledge that the associated claimant no longer has valid residency in the UAE and would likely be denied entry, the Convention is only applicable to her circumstances if the refusal of entry is based on a Convention ground, and not related to immigration laws of general application,[12] as in the case here.

[23]     Despite the fact that the associated claimant did not make allegations against the UAE on the basis of her gender, I nonetheless considered this in accordance with the Chairperson’s guideline on gender. The evidence reveals that the penal code allows men to use physical violence against female family members; that domestic violence is a serious problem; and that domestic violence laws are not enforced.[13] But, there is no evidence of violence by anyone with whom the associated claimant has had a domestic relationship. The evidence also indicates that there is gender discrimination in the law and practice with, for example, family law.[14] While there is discrimination against women in the UAE, even when taken together, I do not find sufficient evidence to demonstrate that it rises to the level of persecution or poses section 97 risks in the associated claimant’s particular case.

[24]     Overall, the associated claimant has not adequately established that she would face a serious possibility of treatment amounting to persecution based on a Convention ground. Similarly, the evidence is not indicative of a likely risk to life, cruel and unusually treatment or punishment or torture. There is no need to assess state protection or IFA in her case either.

State Protection

Principal Claimant

[25]     In this case, there is insufficient evidence to indicate that the principal claimant is likely to obtain adequate state protection. He attempted to report the threat against him to the police, but they rejected it arguing that as an honour issue, it was a private matter. The officer also questioned the claimant about trying to complain against such a venerable tribe. When asked why he did not report his assault, the principal claimant testified that given the response he

received earlier, he did not believe police would assist him. He also testified that the Bani Hassan tribe is an extremely large tribe – often known as the tribe of a million people – widely known to hold positions in security and government and to be well-connected with each other. As such, he believes the police would not assist him, particularly since he is Palestinian and because the issue relates to honour.

[26]     The Department of Foreign Affairs and Trade (DFAT) notes that Palestinians face some discrimination in Jordan, and relatively few are in the public sector.[15] It states that individuals and groups have disproportionate access to power and influence, which in Jordan and the broader Arab world, is referred to as ‘wasta.’  Wasta can affect business, bureaucratic, political and social dealings. According to DFAT, most Palestinians in Jordan have little wasta when dealing with government bureaucracy. The public service is largely made up of tribes with a great deal of wasta. In DFAT’s assessment, wasta is not evidence in and of itself of official or societal discrimination against Palestinians, but a central component to understanding how Jordanian society operates. It goes on to state that:

Despite being a numerical minority, the majority of the security forces, including the police, are East Bankers. DFAT assesses that there is no official policy for security forces to make life more difficult for Palestinians. However, personality­-driven discrimination by individual officers against Palestinians and others can and does occur. It is unlikely that any complaints made by Palestinians of abuse by law enforcement agencies would result in legal redress. As is the case in much of Jordan, the individual’s wasta would likely determine the quality of redress.

[27]     This evidence confirms the principal claimant’s testimony indicating that because he is Palestinian, he is unlikely to obtain adequate state protection, particularly against a large and powerful tribe that occupies positions in government and police. It should be noted that according to the Department of State, although citizens may complain against police abuse and corruption, it is “rarely investigated” in Jordan.[16] It states that officials engage in corrupt practices with impunity and the use of family, business, and other personal connections to advance personal interests is widespread. Based on the principal claimant’s failed attempt to obtain protection, the profile of the agents of persecution, the low wasta of Palestinians, and widespread corruption with impunity, I find that there is no state protection

Internal Flight Alternative

[28]     I also do not find that the principal claimant could live safely elsewhere in the country. Jordan is an exceptionally small country in size and population. Given the corruption in Jordan and that the claimants’ agents of harm belong to a tribe that is heavily represented in public service, they are likely to have access to government information that would reveal the principal claimant’s whereabouts. For example, they have been able to locate a number of the principal claimant’s family members to demand his whereabouts. Based on these factors, I find that there is no IFA in this case.

CONCLUSION

[29]     Having considered all of the evidence, I find that the principal claimant is a person in need of protection as set out in section 97(1) of the Act. His claim is therefore accepted.

[30]     I find that the minor and associated claimants are neither Convention refugees as set out in section 96, nor persons in need of protection within the meaning of subsection 97(1) of the Act. Their claims are therefore denied.

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

[2] Exhibit 1.

[3] Exhibit 1.

[4] Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 21 (C.A); 48 Imm. L.R. (2d) 195 (F.C.A.).

[5] Maarouf v. Canada (Minister of Employment and Immigration). [1994] 1 F.C. 723 (T.D.), (1993), 23 Imm. L.R. (2d) 163 (F.C.T.D.)

[6] Exhibit 3.2, National Documentation Package (NDP), Syria, September 30, 2019, Item 3.6 Response to Information Request (RIR) SYR104658.E.

[7] Exhibit 3.2, NDP, Item 3.6.

[8] Exhibit 4.

[9] Exhibit 3.1, NDP, Jordan, August 30, 2019, Items 2.1, 2.4 and 5.5.

[10] Exhibit 3.3, NDP, United Arab Emirates, February 28, 2020, Item 14.2 RIR ZZZ106014.E.

[11] Alusta, Khahil v. ME.I. (F.C.T.D., no. A-779-92), Denault, May 16, 1995.

[12] Arafa, Mohammed v. ME.I. (F.C.T.D., no. A-663-92), Gibson, November 3, 1993.

[13] Exhibit 3.3, NDP, Item 2.1.

[14] Exhibit 3.3, NDP Items 2.2, 2.3 and 2.4.

[15] Exhibit 3.1, NDP, Item 13.1.

[16] Exhibit 3.1, NDO, Item 2.1.