Tag: All Case Types

Categories
All Countries Jamaica

2020 RLLR 76

Citation: 2020 RLLR 76
Tribunal: Refugee Protection Division
Date of Decision: January 21, 2020
Panel: L. Bonhomme
Counsel for the Claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-28318
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000105-000109

DECISION

[1]       MEMBER:    Alright good morning we are back on the record after a break. I see that your witness is present would you like her to remain for the duration of the hearing?  Okay.

[2]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. This is the decision for [XXX]. You are claiming to be a citizen of Jamaica and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Given the nature of this claim I have taken into consideration the chair person’s guideline for proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression.

[4]       You will receive an unedited transcript of this oral decision in the mail in approximately three weeks. Your counsel will also receive a copy and can answer any related questions you may have at that time.

DETERMINATION:

[5]       Your claim is accepted. I find that you are a Convention refugee on the grounds of membership in a particular social group namely bisexual woman for the following reasons.

ALLEGATIONS:

[6]       You allege that you are a citizen of Jamaica and that you are a bisexual woman who is believed to be a lesbian by your family and community in St. Catherine’s. You were pressured into entering into relationships with men in Jamaica including a marriage which did not last very long.

[7]       You have been mistreated by family members and subject to threats and abusive language by the community as well as attempts on your life due to your perceived sexual orientation.

[8]       You allege that if you return you will be harmed or killed. You allege that there is no state protection for you or an internal flight alternative.

IDENTITY:

[9]       Your personal identity as a citizen of Jamaica has been established by your testimony and the supporting documents filed in the exhibits, particularly the certified true copy of your Jamaican passport and Canadian visa. I find that on a balance of probabilities you are who you say you are and that the country of reference is Jamaica.

NEXUS:

[10]     I find that there is a link between what you fear and one of the five convention grounds namely membership in a particular social group, bisexual women and therefore I have only assessed the claim under Section 96.

CREDIBILITY:

[11]     In terms of your general credibility I found you to be a credible witness and I therefore believe what you have alleged in your testimony and in your basis of claim form.

[12]     You answered all questions put to in a forthright manner, without hesitation or embellishment. When you did not know the answer to a question you said so. You displayed what appeared to be genuine emotion regarding difficult experiences in your life related to your sexual orientation.

[13]     For the most part your testimony was consistent with the allegations in your basis of claim form. I do find that there were some embellishment in your basis of claim form, for example when you described there to be many attempts on your life yet you were only able to describe two incidents in your testimony.

[14]     Although there were also some inconsistencies between the forms, your basis of claim form and your testimony, I accept your explanation that they were mistakes and likely owing to your emotional state.

[15]     You have provided the following documents to support your claim. Support letters from sister and mother confirming being aware of your sexual orientation and in the case of your mother of your mistreatment in Jamaica due to your perceived sexual orientation, a letter from the 519 centre in Toronto confirming your active involvement with the LGBTQ community in Toronto and the spousal sponsorship application made by your former same sex partner which was requested by the board and immediately forthcoming from you.

[16]     Your current same sex partner [XXX](ph) attended the hearing today and testified as a witness at the request of the panel. For the most part you were both consistent with relevant details of your relationship. Although there were some discrepancies adequate explanations were provided.

[17]     Based on of the above I believe on a balance of probabilities that you are a bisexual woman. believe that you have been in relationships with at least two women in Canada and that you were too fearful to act on your interest in women while in Jamaica.

[18]     I believe that you were subject to harassment and threats in your community in Jamaica as a result of your suspected sexual orientation. I believe that you are fearful to return to Jamaica because you may be harmed or killed due to your sexual orientation.

[19]     I therefore find that your subjective fear is established by your credible testimony, your witness’s credible testimony and by your corroborating documentation and I believe what you have alleged on a balance of probabilities.

[20]     I also find based on a review of the national documentation package that your fear is objectively well founded.

[21]     The documents including Item 6.1 through to 6.5 state that homosexual acts between males are criminalized in Jamaica, while the laws are not enforced and do not speak to acts between women the existence of these laws creates a climate that sanctions violence and discrimination against sexual minorities including lesbians.

[22]     Some types of Jamaican music propagate homophobia and politicians and church leaders have made negative statements towards sexual minorities.

[23]     Several sources including Articles submitted by your counsel report that sexual minorities are the target of violence including mob violence in Jamaica. Women believed to be lesbians are specifically targeted for corrective rape.

[24]     Sources also report that police often fail to take action regarding incidents of violence directed at sexual minorities. In some cases police are the perpetrators. Sexual minorities are often reluctant to report incidents for fear of their well being and for fear they may be extorted based on their sexual identity. I find that you have a well founded fear of persecution in Jamaica.

STATE PROTECTION:

[25]     States are presumed to be capable of protecting their own citizens except in situations where the state is in a state of complete breakdown. I find the objective documentary evidence I have already referred to, to be clear and convincing evidence to rebut the presumption of state protection.

[26]     Not only do police often fail to take action regarding incidents of violence directed at sexual minorities but in some cases police are the perpetrators.

INTERNAL FLIGHT ALTERNATIVE:

[27]     I have also considered whether a viable internal flight alternative exists for you. I find that there is no viable internal flight alternative available to you as the evidence indicates that there is a serious possibility of the persecution throughout the country. The climate of homophobia and violence exists throughout Jamaica.

CONCLUSION:

[28]     Based on the totality of the evidence I find you to be a Convention refugee and I accept your claim. The hearing is now concluded.

[29]     CLAIMANT:  Thank you very much ma’am.

[30]     MEMBER:    Thank you for coming this morning and sharing your story, thank you ma’am for attending today and testifying as well. Counsel thank you for assistance. I am just returning the original documents to you right now. Thanks.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2020 RLLR 75

Citation: 2020 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: March 16, 2020
Panel: Shams Alidina
Counsel for the Claimant(s): Raoul Boulakia
Country: Colombia
RPD Number: TB8-24792
Associated RPD Number(s): TB8-24829, TB8-24828, TB8-24793, TB8-24803
ATIP Number: A-2021-00800
ATIP Pages: 000100-000104

DECISION

[1]       MEMBER: Sir and madam, I have a decision for you, and these are my reasons for the decision.

[2]       If you need the reasons, you can always ask the Refugee Board to give it to you.

[3]       INTERPRETER: Excuse me, sir?

[4]       MEMBER: If you need the reasons in writing, the Refugee Board can give it to you.

[5]       [XXX], hereinafter “the claimant”, her husband, [XXX], and their children, [XXX] and [XXX], are citizens of Colombia claiming for refugee protection in Canada pursuant to sections 96, 97(l)(a), and 97(l)(b) of Immigration and Refugee Protection Act, IRPA.

[6]       The claimant alleges that she was in a [XXX] called [XXX] that was involved in instructions in [XXX]. She had [XXX] in Bogotá, and she had a number of [XXX] belonging to her, her husband, and her daughter. Because of her profile, her office was contacted by the ELN guerrillas —

[7]       INTERPRETER: By —

[8]       MEMBER: By ELN guerrillas, asking for contribution to support their cause. Initially, the claimant did not provide any money to them, but after being targeted several times and fearing death, on one occasion she paid them [XXX] pesos. After the payment, she felt that ELN would stop the extortion, but the ELN did not. They continued extorting her, and finally they even targeted her daughter, who was abused physically and sexually by the ELN. And when the claimant returned to Bogotá, she was almost killed by them. Her driver was able to swing his car and was able to save her. She left Colombia despite her parents needing her, despite all the [XXX] she had, despite all the [XXX] she had, to come to Canada to seek protection.

Identity

[9]       The claimant’s identity has been established to the satisfaction of the panel.  In that the panel refers to Exhibit 1, where the panel sees the claimants’ passport copies, which indicate that all the claimants are citizens of Colombia.  And the claimant testified that they do not have any status anywhere else.  On a balance of probabilities, the panel finds that the claimants in this case are all citizens of Colombia.

[10]     The determinative issues in this case are credibility and subjective fear.  On that subject, the panel incorporates Counsel’s submissions in its decision regarding subjective fear. The claimant and her daughter were very emotional. Their demeanour clearly indicated their fear of the ELN guerrillas.

[11]     Based on the evidence, which is supported by documentary evidence in Exhibit 4, the panel finds that the claimant and her husband were reasonably [XXX] people. The claimant had [XXX] of [XXX], while her husband had one, which he [XXX] prior to coming to Canada. They have several [XXX] and [XXX]. The claimant testified that she created an [XXX] for her family. She loved her country. Her parents are vulnerable — they’re still there — but her daughter has been stigmatized by what happened to her. The claimant indicated on several occasions that it was a big mistake on her part to have not left Colombia earlier, and had returned, after coming to Canada, back to Colombia. She testified that she had apologized to her family for doing what she did. And while she was in Colombia, she had a bodyguard.

[12]     INTERPRETER: She had —

[13]     MEMBER: Bodyguard, and a bulletproof vehicle for safety of her whole family. Her bodyguard was an [XXX], who finally told her to flee from Colombia if she wanted to save her life and lives of her family. On one occasion, the claimant testified that she had to return to Colombia because of the [XXX] situation of her son, and she provided documentary evidence to support that.

[14]     Therefore, based on the evidence provided by the claimant as well as Counsel, the panel is satisfied that the claimant had to return to Colombia, but despite of all the [XXX] she had, she could not get any police protection. She went to Fiscalía on more than one occasion. Even after her laptop was stolen — and Counsel showed the panel the little video of that stealing — the Fiscalía could not do anything for her, and she testified she had no other alternative but to come to Canada to seek protection.

[15]     The panel finds, based on what Counsel submitted and the claimant testified, that the claimant’s explanation about subjective fear is satisfactory. In this case, the agents of persecution are the ELN guerrillas. Given the amount of [XXX] she had, it is plausible that the ELN would be motivated to seek extortion from her.

[16]     Insofar as credibility is concerned, the claimant was reasonably credible witness. There were some minor credibility issues, which were explained by the claimant, her daughter, and Counsel in his submissions to the satisfaction of the panel. The panel gives the benefit of doubt in this case to the claimants and accepts their story in support of the claim. This is a well-documented claim, in that it contains support documents for everything the claimant indicated, including [XXX] that she [XXX], the visits to Fiscalía, and not obtaining protection from the authorities.

[17]     In regards to IFA, because ELN is present everywhere, the panel does not find that the claimants would have a viable internal flight alternative in Cartagena.

[18]     And the claimant’s testimony is supported by the documentary evidence before the panel, and the panel is referring to the country conditions provided by Counsel as well as the IRB. The DOS report indicates that the most significant human rights issues included extrajudicial and unlawful killings. Reports —

[19]     INTERPRETER: Extrajudicial and —

[20]     MEMBER: Extrajudicial killings. The reports of torture and arbitrary detention, corruption, rape, and abuse of women and children by illegal armed groups. The panel will refer to other documentary evidence the details, that is Response to Information Request COL-106085.E.  I think they know what I’m saying. And the document indicates that ELN is a leftist armed group. The ELN was involved in peace negotiations with the government, but because the ELN continued attacks, those peace negotiations were terminated, and because ELN was involved with the government in peace negotiations, and the claimant’s non-payment of Vacuna (ph) —

[21]     INTERPRETER: And the claimant’s –­

[22]     MEMBER: Of Vacuna.

[23]     COUNSEL: Vacuna, extortion.

[24]     MEMBER: Extortion.

[25]     INTERPRETER: Okay, okay.

[26]     MEMBER: Made them an enemy of the ELN. The ELN felt that they had an opinion against the ELN for not supporting their cause, and because ELN participated in peace talks with the government of Colombia, it is regarded as a component of state machinery, and an opinion against the component of the state machinery amounts to imputed political opinion against the state machinery. And therefore, the claimants have established a nexus to the Convention ground today. The report indicates that there were 2,500 combatants in the ELN force, and the ELN operates using columns, which were called war fronts. The same document indicates that ELN retains an active presence in the country. Insofar as the activities are concerned, the same document indicates that ELN is involved in kidnapping, launching bomb attacks against police officers, attacking government targets —

[27]     INTERPRETER: Attacking —

[28]     MEMBER:  Government  targets,  attacking  economic  infrastructure,  recruiting  children,  using antipersonnel land mines, displacing civilians, and killing them.  The same document indicates that there’s a strong incursion of the ELN in many, many areas around the country. In the first ten months of 2017, the ELN was responsible for 45 percent of the total mass displacement of people. ELN is amongst the organized armed groups that are taking advantage of the weakness of the state’s presence in the areas where the former FARC had influence. At this time, ELN has expanded its role in the drug trade after the demobilization of the FARC guerrillas. The same document indicates that it is possible that the ELN can monitor or target across Colombia.

[29]     In regards to protection, the same document indicates that state protection available to victims of ELN was scarce, that the protection measures for people who are victims of ELN are very limited. For victims who, given their positions or their activities, may be subjected to extraordinary or extreme risk, the DOS indicates that the ELN is involved in unlawful killings, political killings, extortion, kidnapping, et cetera. [inaudible] of the evidence that is before the panel, the panel finds that the ELN is a strong leftist guerrilla group operating all over Colombia. In this case, the claimant being a wealthy person —

[30]     INTERPRETER: In this case —

[31]     MEMBER: A [XXX] person, did not support their cause. She became the enemy of the ELN. They targeted to kill her at one point, but she was able to escape because her driver was able to escape from the scene. They targeted her daughter —

[32]     INTERPRETER: They —

[33]     MEMBER: Targeted her daughter. They not only beat her up, they raped her. She testified that they had ruined her life.

[34]     INTERPRETER: That they had —

[35]     MEMBER: Ruined her life. Based on the totality of the evidence adduced and the country conditions, and the documentary evidence claimant provided to support her claim, panel finds that there is a serious possibility that the claimant and her children would be targeted and seriously harmed for not supporting ELN cause. And therefore, for all above reasons, the Refugee Protection Division determines that [XXX] is a Convention refugee. Because her husband’s and her children’s claims are based on her claim, their claims must succeed, too. As a result, the Refugee Protection Division determines that [XXX] and [XXX] are also Convention refugees.

[36]     Signed by Shams Alidina, Member of Refugee Protection Division, on 16th March 2020.

[37]     I wish to thank madam, your husband, and your children for coming today. I wish to thank Counsel for coming, and I wish to thank Counsel for providing a lot of documentary evidence. I wish to thank the interpreter for doing a fantastic job.

[38]     The hearing is over.

[39]     Now, madam — sorry, Counsel, I had to [inaudible]

[40]     COUNSEL: [inaudible]

[41]     MEMBER: I say that most of the times to Colombians.

——————-REASONS CONCLUDED——————-

Categories
All Countries Nepal

2020 RLLR 74

Citation: 2020 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: July 7, 2020
Panel: Avril Cardoso
Counsel for the Claimant(s): Atul Subedi
Country: Nepal
RPD Number: TB8-19093
Associated RPD Number(s): TB8-19105, TB8-19141, TB8-19142
ATIP Number: A-2021-00800
ATIP Pages: 000092-000099

REASONS FOR DECISION

[1]       [XXX] (the principal claimant), [XXX] (associate claimant), [XXX] (adult claimant) and [XXX] (minor claimant) claim to be a citizen of Nepal and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“the Act”)[1].

ALLEGATIONS

[2]       The claimants’ allegations are fully set out in their Basis of Claim forms (BOC)[2]. In summary, the principal claimant alleges a fear of persecution in Nepal because of his political membership and active support of the Nepali Congress (NC) party. The associate, adult and minor claimants allege a fear of persecution because of their imputed political opinion as members of the particular social group of family.

[3]       The principal and associate claimants are spouses. The adult and minor claimants are their children.

DETERMINATION

[4]       I find that the claimants are Convention refugees pursuant to section 96 of the Act.

ANALYSIS

Identity

[5]       The claimants’ personal and national identities as citizens of Nepal have been established on a balance of probabilities by true copies of their passports[3], marriage certificate and Nepali citizenship certificates for the principal and associate claimants, birth certificates for the adult and minor claimants, a relationship certificate for all claimants[4] and oral testimony.

Credibility

[6]       When a claimant swears that certain facts are true, this creates a presumption of truth unless there is valid reason to doubt their veracity.

The principal claimant was an active member of the Nepali Congress (NC) party

[7]       The principal claimant testified that he has been involved with the Nepali Congress (NC) party since 1990.

[8]       He correctly identified the date when the NC party was founded and accurately described its ideology as embracing nationalism, federalism and socialism. The principal claimant also testified about his political activities in the NC party.  He identified the current NC party leader as Sher Bahadur Deuba and said he was politically active since his childhood and was against the previous Panchayat System. He testified that the party leader had been detained for eight years for his political beliefs and was tortured including through electric shock on his tongue which has resulted in a speech impediment. The principal claimant said he was inspired by the party leader and wanted to advocate for democracy in Nepal.

[9]       The principal claimant testified that he distributed pamphlets door to door in [XXX] 2008 to promote the NC party and also organized public meetings to further disseminate information about the party and its quest for democracy. He testified that he supported a candidate in the [XXX] 2017 election, invited media to speeches and also expressed his political views about the need for peace and prosperity which could be accomplished by electing an NC government and could not be accomplished through a communist regime.

[10]     I find, on a balance of probabilities that the principal claimant is an active member of the NC party. His testimony was detailed and spontaneous and he provided additional details in a natural manner and without hesitation when asked to elaborate about his responses. In support of his testimony he submitted a membership letter and a letter from the NC party Chief Secretary attesting to his membership and providing details about his political activities which are consistent with the principal claimant’s other evidence[5].

The principal claimant was harassed and assaulted by members of the Biplav Maoists

[11]     I find that the principal claimant was harassed and threatened by Biplav Maoists in late [XXX] 2017. The principal claimant testified that after he expressed his views against the communist regime, in late [XXX] 2017 Biplav Maoist cadres came to his place of business demanding that he stop campaigning for the NC party and asked him to pay a donation of [XXX] rupees as a penalty for his actions. He said he told them he did not have that amount of money but had [XXX] rupees on the premises which he said they accepted. The principal claimant said he reported this incident to the police but was told that this was a political issue and the police could not help him. The principal claimant’s testimony was detailed, without embellishment and materially consistent with his narrative.

[12]     I find that the principal claimant was harassed by Biplav Maoist supporters and cadres in [XXX] 2018. He testified that he owned farmland in the Nawalparasi district and visited the property as he was planning to launch a farming project. The principal claimant testified that when he arrived he found people occupying the land who informed him that the Biplav Maoists gave the land to them and they refused to leave. The principal claimant said he reported the incident to the local police who told him that this was a political matter. When he returned to Kathmandu, he said he contacted his minister of parliament who directed him to report the occupation of his farmland to the police in Kathmandu and also told him that he would escalate the issue. The principal claimant testified that Biplav Maoist cadres came to his office later in [XXX] 2018 and harassed him about his anti-communist actions and said they believed he was a [XXX] and therefore should be able to pay [XXX] rupees as a donation.  The principal claimant said that the told the cadres he needed a week to pay such a [XXX] amount. He said that the police then contacted him to identify two Biplav Maoist cadres who they had arrested based on the principal claimant’s complaint.  The principal claimant testified that the cadres who had been arrested were subsequently released. The principal claimant’s testimony was materially consistent with his narrative however there was a minor discrepancy with some of the dates. It was apparent that the principal claimant was nervous and he was able to clarify the discrepancy in a spontaneous and natural manner. Therefore this minor inconsistency did not impugn his credibility. The principal claimant also submitted a police report to corroborate his testimony[6].

[13]     I find that the principal claimant was kidnapped and assaulted on [XXX] 2018 by Biplav Maoists. The principal claimant testified that on [XXX] 2018 at 6:30 p.m. he was alone in his office as the staff had already gone home. He said that Biplav Maoists cadres came to his office and under threat of gunpoint took him to an isolated house where he was threatened by the group leader. He said he was told that the Biplav Maoists kill those who do not comply with their directions and they demanded [XXX] rupees as a donation.  The principal claimant said he was very scared and panicked and was allowed to call his wife to obtain part of the payment for his release. He said his wife was able to gather the money and he signed a document and was released at a different location. The associate claimant testified that she was able to gather [XXX] rupees from relatives and from a recent [XXX] transaction. She testified that she went to the location for the exchange by motorbike and picked up her husband there and took him to the doctor for medical treatment as he was injured. The principal claimant’s testimony was detailed and consistent with his narrative.  He provided additional details about the kidnapping and assault in a spontaneous manner and without embellishment. The associate claimant’s testimony was also detailed and she provided additional details in an unhesitating manner. The principal claimant submitted a donation receipt for [XXX] rupees and a medical report regarding injuries he sustained to corroborate his testimony.

Subjective fear: Moved to a relative’s house, did not return to business

[14]     The principal claimant testified that the minor claimant, his youngest daughter said she did not want to attend school. He said she told him she was being followed. The principal claimant testified that the family relocated to a relative’ s home about 25 minutes away because he had heard the Biplav Maoists abduct children to extort donations. He also testified that since the [XXX] assault he did not return to his place of business and closed it down. The claimants also left Nepal on [XXX] 2018.

[15]     I find that the conduct of the claimants is consistent with subjective fear. The principal claimant closed down his business after the [XXX] 2018 assault and kidnapping and the family relocated on [XXX] 2018 after the minor claimant was followed. The claimants also left Nepal promptly about a week after the kidnapping.

Objective Basis

[16]     The objective evidence is consistent with the claimants’ account of fearing persecution because of their actual and imputed political opinion[7].

[17]     Item 2.1[8] of the objective documents indicates that while elections were generally well conducted, there were reports of violent incidents including individuals being killed by the police and reports of interparty clashes and assaults.  According to item 4.4[9], political incidents were the primary driver of violent incidents and made up the majority of the non-violent incidents. This report also notes activities by the CPN-Chand Maoists to attempt to disrupt the election process.

[18]     Item 1.6[10] indicates that a diverse array of political parties operate in Nepal although the system has faced considerable instability in recent years. This report also states that political opponents of the Maoists do not generally face violence because Maoists have the potential to control the national agenda without resorting to violence. However this report does not specify whether this applies to the CPN Maoists or Biplav Maoists who are a splinter group from the Nepal Communist Party currently in power.

[19]     As well, the claimant’s counsel provided numerous articles about the wide reach and violent activities perpetrated by the Biplav Maoists including extortion similar to the kind the principal claimant describes in his BOC[11].

[20]     I find that the claimants’ fear of persecution because of their actual and imputed political opinion has an objective basis and is well-founded.

State Protection

[21]     A state, unless in a condition of complete breakdown, is presumed to be 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.

[22]     The objective documents indicate that historical claims of abuses by the Maoists remain unsolved and there is a prevailing climate of impunity in part because senior government officials have the potential to shield leaders of major political parties from prosecution and investigation. This report further states that police effectiveness is limited by lack of resources, corruption, nepotism and a culture of impunity especially among low level officers[12].

[23]     Based on the personal circumstances of the claimants as well as the objective country documentation, I find that they have rebutted the presumption of state protection and state protection would not be reasonably available to them in their particular circumstances. The principal claimant sought the assistance of the police on multiple occasions without any reasonable protection being made available to him.

Internal Flight Alternative (IFA)

[24]     The test to be applied in determining whether there is a viable IFA is two-pronged, and both prongs must be satisfied for a finding that a claimant has a viable IFA. First, I must find on a balance of probabilities that there is no serious possibility that the claimants would be persecuted in the part of the country in which I find an IFA exists. Secondly, 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 claimants for them to seek refuge there.

[25]     The objective evidence indicates that the Biplav Maoists (CPN) have a presence in all 77 districts of Nepal and have mobilized across the country. Further there is a nationwide crackdown by the government against this group[13] as well as reports of violence perpetrated by the Biplav Maoists in the IFA locations proposed.

[26]     Therefore I find there a serious possibility of persecution in the country and there is no IFA available to the claimants in Nepal as the Biplav Maoists are present throughout the country and would be motivated to find them. The evidence demonstrates that the Biplav Maoists sought the claimant in Kathmandu where his primary business was located, followed his younger daughter (minor claimant) and knew about the principal claimant’s activities in Nawalparisi, some distance away from his home.

CONCLUSION

[27]     Having considered all of the evidence, I find that there is a serious possibility that the claimants would face persecution in Nepal. I find that the claimants are Convention refugees and I accept their claims.

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

[2] Exhibits 2, 3, 4 and 5

[3] Exhibit 1

[4] Exhibit 11

[5] Exhibit 11

[6] Exhibit 11

[7] Exhibit 3

[8] Exhibit 8, Item 2.1

[9] Exhibit 6, Item 4.4

[10] Exhibit 6

[11] Exhibit 8

[12] Exhibit 6, Items 1.6 and 4.7

[13] Exhibit 8, page 46

Categories
All Countries Antigua and Barbuda

2020 RLLR 73

Citation: 2020 RLLR 73
Tribunal: Refugee Protection Division
Date of Decision: February 12, 2020
Panel: M. Vega
Counsel for the Claimant(s): Mary E Boyce
Country: Antigua and Barbuda
RPD Number: TB8-16407
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000087-000091

DECISION

[1]       MEMBER:    Okay, this is the decision with respect to the claimant [XXX], this is File number TB5-16407 and the claimant is… I’m rendering this decision now orally to you having heard all the evidence today [XXX].

[2]       You claim to be a citizen of Antigua and Barbuda and you have claimed refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       In assessing this claim I have considered and I have kept in mind the chair person’s guideline Number 9 which is entitled, which is titled proceedings before the Immigration and Refugee Board involving sexual orientation and gender identity and expression or we call it SOGI as well.

[4]       I find [XXX] that you are a Convention refugee for the following reasons. The allegations are found in your basis of claim form.

[5]       I won’t repeat them all but just to summarize your basis of claim form; you knew from the age of approximately [XXX] that you were a lesbian, you felt that you were one and you come from a strict Christian family where your mother is a Pentecostal [XXX] and the life in the Christian church at your mother’ s church was very important to your family and it was significantly dominated, your life was dominated by the church you felt.

[6]       You father was not as harsh as your mother but both your parents because of their sermons you were aware of how they felt about homosexuality and that how they perceive it to be wrong.

[7]       During school you dated men and you were, you also dated [XXX](ph) who you later married. You dated him for three years and then you married him in 2008. You subsequently divorced [XXX](ph) in [XXX] of 2012.

[8]       You did not come out to him as being a lesbian woman, however he was aware of what you had told him about when you and your, you and your cousin as a [XXX] year olds you experimented a bit with each other sexually and stimulated each other over two years.

[9]       He was aware of this and you felt that this was sort of might be a phase in your life, so you had told him the story thinking it might bring you closer together and he later would use that to hurt you and remind you that if you were to, often out with your girlfriends and he would ask you if you repeating your childish behaviour and you knew what that meant.

[10]     You also, you were keeping your sexual orientation secret while you were living in Antigua and Barbuda after you had divorced him. You did have some relationships and or a casual relationship but you had a more meaningful one. However this ended not very well and the result was the threat that she would contact your family and inform them and that would be detrimental to your mother’s [XXX] within the church.

[11]     Her reputation as [XXX], as a Christian [XXX] as well as to, given that Antigua is so small and how gossip goes there, it would be detrimental to your entire family as well as to yourself. So shortly after that threat you decided to leave the island and come to Canada and then you came to Canada in [XXX] of 2018.

[12]     While in Canada you have felt freedom and as able to express yourself as a lesbian woman you later met your current partner [XXX] and you’ve had a relationship since. You’ve met her family and you stayed with her family, travelled with her family and had vacations with them and you feel very welcomed by them.

[13]     So that brings us to this hearing and first of all I would like start by, with the issue of your identity. This issue I’ve considered and the material that I have in Exhibit 1 which is a certified true copy of your passport from Antigua and Barbuda. It’s clear to me on a balance of probabilities that you are a citizen of that country therefore I find that your national identity has been established.

[14]     With respect to your sexual identity as this is a sexual orientation claim. I find that that has been established by your testimony, by all the evidence here today.

[15]     In that regard you have answered an abundance of questions that I have asked and you have indicated that you identify as a lesbian woman and despite you did have a relationship with a man to whom you were married and at the time, you at the time felt that you might be bisexual. However that is not how you identified today.

[16]     From your answers I found you to be, that you answered in a very straightforward manner. You were very willing to answer all questions that I asked.

[17]     You were spontaneous in your answers and therefore I found you to be a credible witness and because I find that you are a credible witness I can accept your allegations and therefore I believe that you are a lesbian woman and in an exclusive relationship with [XXX](ph).

[18]     So with respect to the issue of the nexus in this case is membership in a particular social group under sexual orientation and that you are a bisexual woman okay?

[19]     Now the country documents, the preponderance of them in my package of Exhibit 3 clearly indicates to me that the, that there would be problems for you if you were to return to Antigua and Barbuda.

[20]     While there wasn’t at the present time from your testimony you’ve indicated that you do not believe [XXX](ph) has ousted you to your family. If you were to live there and the test I apply is a forward looking one so it looks at if you were to go not what has happened to you in the past but more so in the future if you were to go there.

[21]     With the current laws the way they are there I find that you would not be able to live your life as you have been expressing yourself sexually or as a lesbian woman and feel the way you have because you would have to be worried.

[22]     Exhibits 3 Item 6.1 indicates that in and this is a response to information request, counsel as you ‘re aware 6.1 is the response to information request ATG104715.E and it states there that several sources indicate that sexual acts between same sex couples are illegal for both men and women in Antigua and Barbuda and the section that would likely apply would be under Article 15 which is considered under serious indecency.

[23]     So there could be under serious indecency there could be jail terms and therefore even though the material does indicate that these laws are not actively implemented despite that I’d like to from the guidelines under 8.6.4 it states there the existence of laws criminalizing non conforming sexual orientations, sexual behaviours or gender identities or expressions and the enforcement of these laws by the state may be evidence that state protection is inadequate.

[24]     Even if irregularly enforced the criminalization of the existence or behaviours of individuals with diverse SOGI may create a climate of impunity for perpetrators of violence and normalize acts of blackmail, sexual abuse, violence and extortion by state and non state actors.

[25]     So and the documentary material the same Item 6.1 does indicate that the situation is getting better. Nonetheless it still is not sufficient at the present time in my opinion.

[26]     There… an LGBT rights group which is called Meeting Emotional and Social Needs Holistically or MESH it’s called, who is and this person spoke to the research director he’s a representative of the Antigua based group and he’s also an openly gay police officer.

[27]     He said that although the laws are generally not pursued LGBT people who are caught engaging in sexual activity in a public place are sometimes detained for a couple of days and he’s provided a lot of useful information but he also says he notes that with respect to the protection by the state that their organization encourages individuals to report cases of threats and violence against LGBT people to the police.

[28]     However he also noted that many LGBT people do not report violence to the police for multiple reasons such as fear of revealing their sexual orientation, fear of stigma and discrimination or a fear due to past experience with police or hearing of experiences of other LGBT people.

[29]     The materials also go on to speak about one case in which a police officer physically assaulted an LGBT person, however when this person went to report and that officer was, somebody reported him and he lost his job.

[30]     Nevertheless there is plenty of material that indicates that the people are do fear for violence and therefore they do not report to the police because then sometimes it’s not always the police who are the perpetrators but the police can be or they can discriminate against the person.

[31]     There was also a case where an Antiguan media source called Carrie Barenna(ph) quoted someone who said their LGBT friend was chased out of a police station when trying to report an incident to the police. So the MESH representative said that treatment depends on the police officer at the desk and he noted that there is still a lot of stigma and discrimination towards LGBT people by the police.

[32]     So this is a little too much that in my opinion, given the evidence I do not believe there’s adequate state protection for you should you if you wanted to come out, if you were living there and if you needed help by the police if anyone were to in anyway threaten you or harm you or try to because I don’t believe there’s adequate state protection for you because the police in this case your fearful of the law because it is illegal to openly be in or demonstrate openly that you are in a relationship or…

[33]     So then there’s also the issue of internal flight alternative that we have to look at and I didn’t raise it as an issue because it’s too small an island and it’s the same law throughout the entire country.  So or even Barbuda it’s still too small ninety five thousand people.

[34]     It’s a small location so I do not find that there would be a viable internal flight alternative available to you if you were to try to hide in another part of the island should you be found out either by, the community where you were living.

[35]     So there’s let me just…therefore I find that you have discharged the burden of the presumption of state protection in your particular case with your evidence and therefore I feel that you would face a serious possibility of persecution because of your sexual orientation as a lesbian woman throughout the entire of Antigua and Barbuda and therefore I conclude on all the evidence in this case that [XXX] that you are a Convention refugee and I therefore accept your claim. Do you understand?

[36]     CLAIMANT:  Thank you I do.

[37]     MEMBER:    You’re very welcome and this hearing is now concluded and good day to everyone thanks.

———- REASONS CONCLUDED ———-

Categories
All Countries Nepal

2020 RLLR 72

Citation: 2020 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: March 2, 2020
Panel: Diane L. Tinker
Counsel for the Claimant(s): Larry Butkowsky
Country: Nepal
RPD Number: TB8-07438
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000082-000086

REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, [XXX] is claiming to be a citizen of Nepal. The claimant claims to have a well-founded fear of persecution at the hands of the splinter Maoists, a group called the Biplav in Nepal under sections 96 and 97(1) of the Immigration and Refugee Protection Act[1] (IRPA).

ALLEGATIONS

[2]       The claimant alleges that he and his family have been involved in Nepali politics, namely the Nepali Congress, one of the oldest political parties in Nepal for many years. The claimant joined the youth wing of the Nepali Congress while a student. The claimant first had trouble with the then Maoist party while he was a [XXX] in [XXX] 2003 as he was kidnapped and told to teach what the Maoists believed in. The claimant left the country and went to work on an [XXX] in Iraq for a number of years. The claimant returned to Nepal in 2010 since the Maoists had ended their war. The claimant rejoined the Nepali Congress party and commenced [XXX] again. Eventually, the claimant rose through the ranks and ended up in [XXX] 2017 of becoming a [XXX] to [XXX]the number of [XXX] who were abducted, tortured and killed by the Maoists. However, as a result of his involvement with this [XXX] and which had been publicized in Nepali newspapers, the claimant started to receiving threatening telephone calls from a splinter group of the Communist Maoists, the Biplavs. The claimant then received letters from the Biplavs demanding money and for him to join their party. The claimant went to the police as a result of the threats but nothing was done. On [XXX] 2017, the claimant was beaten which required hospitalization and again threatened by the Biplavs. Again, the police were contacted by nothing was done. The claimant had applied for a Canadian visitor’s visa in [XXX] 2017 but was rejected. The claimant then hired an agent who secured a visitor’s visa to France and Italy with the intent of then proceeding to Canada. The claimant went to the aforementioned countries on [XXX] 2017 and unable to secure a Canadian visitor’s visa at that time, returned to Nepal on [XXX] 2017. The agent was then able to secure a Canadian visitor’s visa and the claimant arrived in Canada on [XXX] 2017 and filed for refugee protection in [XXX] 2018.

DETERMINATION

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

ANALYSIS

Identity

[4]       The claimant’s oral testimony and the supporting documentation[2] establish that he is a citizen of Nepal.

Credibility

[5]       I find that the claimant to be a credible witness and therefore accept what he has alleged in his oral testimony and in his Basis of Claim form.[3] I find that the claimant’s testimony was straightforward and in keeping with his Basis of Claim form with a very detailed narrative and I noted no contradictions, inconsistencies or omissions in his testimony.

[6]       The claimant provided extensive documentation[4] including documents pertaining to his membership in the Nepali Congress party, employment as a [XXX] medical and police reports as well as newspaper articles confirming his job as a [XXX] the disappearance and killings of [XXX] by the Maoists.

[7]       I therefore find that the claimant was a member of the Nepali Congress political party, that he was [XXX] the disappearances and killings of [XXX] by the Maoists in Nepal and as a result, was targeted by the Biplav faction of the Maoists was threatened and physically assaulted by them.

[8]       This claim is therefore being assessed under section 96 of the Immigration and Refugee Protection Act.

Objective Country Documentation on Persecution

[9]       The claimant had indicated in his testimony that he had contacted the police on three occasions concerning the threats made by the Biplav Maoists with no response.

[10]     The National Documentation Package for Nepal[5] states that state protection for victims of extortion is largely incapable and increasingly so in the aftermath of the earthquakes. This same document states that the Biplav Maoists are involved in extortion, kidnapping and capturing land from opponents. In the documentation provided by counsel,[6] numerous newspaper articles from 2015 into the early 2018 confirm many aspects of the claimant’s testimony. These articles state that the Biplavs have taken responsibility for many bombs, killing government officials and business leaders in Nepal as well as attacking candidates from other political parties with basically impunity. The Biplavs maintain that they want to seize power in Nepal and will do whatever to obtain it.

State Protection and Internal Flight Alternative (IFA)

[11]     I therefore find that state protection and an internal flight alternative is not available to the claimant as a member of the Nepali Congress and an [XXX] into the killings of [XXX] by the Biplav Maoists. The claimant and his family did move from their home to Kathmandu and were contacted by the Biplavs on more than one occasion. The claimant indicated that his wife is still being harassed by the Biplavs although she has moved to a different location in Kathmandu.

CONCLUSION

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

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

[2] Exhibit M-1, Photocopy of claimant’s Nepalese passport; Exhibit C-7 Academic certificates.

[3] Exhibit C-2, Basis of Claim form

[4] Exhibit C-7, Membership card of Nepali Congress party, employment documents, medical and police reports, newspaper articles.

[5] Exhibit R-3, NDP for Nepal (April 30, 2019), item 4.7.

[6] Exhibit C-6 Counsel’s country documentation.

Categories
All Countries Azerbaijan

2020 RLLR 71

Citation: 2020 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: October 23, 2020
Panel: L. Bonhomme
Counsel for the Claimant(s): Hagan Turan
Country: Azerbaijan
RPD Number: TB8-07131
Associated RPD Number(s): TB8-07141, TB8-07149, TB8-07150
ATIP Number: A-2021-00800
ATIP Pages: 000075-000081

REASONS FOR DECISION

[1]       The claimants, [XXX] aka [XXX] aka [XXX] and [XXX] are seeking refugee protection from Azerbaijan pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[1]

[2]       [XXX] is the principal claimant and he is married to [XXX], the associate claimant. Their children are [XXX] and [XXX], the minor claimants. The principal claimant was appointed as the designated representative of the minor claimants.

Determination

[3]       The panel finds the claimants to be Convention refugees; in the case of the principal claimant, on the grounds of his political opinion and in the case of the associate and minor claimants, on the grounds of their imputed political opinion.

Allegations

[4]       The details of the claimants’ allegations are more fully set out in the principal claimant’s Basis of Claim Form (“BOC”).[2] In short, the principal claimant is a member of Musavat, an opposition political party in Azerbaijan. The principal claimant has always been a supporter of democratic parties in Azerbaijan and was initially active in the Azerbaijan National Front Party. The principal claimant joined the Musavat party in 2012 and has been active in rallies and protests as both a participant and an organizer. He has been detained on three occasions over the course of his political activity and treated abusively by the police. Following the principal claimant’ s last release from detention in [XXX] 2018, the police continued to threaten him and his family and make demands for money. As a result, the claimants left Azerbaijan to Canada.

[5]       The claimants are fearful of returning to Azerbaijan as they fear detention and mistreatment by the authorities.

Analysis

Identity

[6]       The claimants’ personal identities as citizens of Azerbaijan have been established by the principal claimant’s testimony and the certified true copies of their Azerbaijani passports and Canadian visas on file.[3]

[7]       The panel finds on a balance of probabilities that the claimants are who they say they are and that the country of reference for them is Azerbaijan.

Credibility

[8]       The determinative issue in this claim is credibility. In making this assessment, the panel has considered all the evidence, including the oral testimony and documentary evidence entered as exhibits as well as counsel’s submissions and post-hearing disclosure.

[9]       The principal claimant testified and was generally a credible witness. His evidence was consistent with the allegations in his BOC. The principal claimant provided spontaneous and detailed testimony in response to extensive questioning from the panel. He did not attempt to embellish his answers and admitted when a detail was unknown to him.

[10]     At the hearing, the principal claimant explained when and why he developed his political views and how they progressed to political activity, first with the Azerbaijan National Front Party and then with the Musavat party. He admitted there were periods of time when he was a passive member or not involved at all after the Azerbaijan National Front Party split into factions. The principal claimant convincingly described his political views and how they aligned with each party. In particular, he was able to describe the economic policies of the Musavat party and the proposed plan to address its economic vision. The principal claimant provided details of his own activities and identified various members of the party, including the circumstances surrounding a high-profile member’s prolonged wrongful detention. The principal claimant testified that he continues to pay membership dues to the party and to participate in rallies in Toronto in support of freeing political prisoners in Azerbaijan.

[11]     The claimants submitted the principal claimant’s membership cards from both the Azerbaijani Popular Front Party and the Musavat (Equality) Party.[4] As well, the claimants submitted a letter from the Vice-Chairman of the Musavat Party dated [XXX] 2018 confirming the principal claimant’s active participation in the party as an organizer and his resulting detention on two occasions.[5] The panel has no reason to doubt the veracity of these documents.

[12]     In response to questioning from his counsel, the principal claimant testified about his detention by the police and the circumstances surrounding each detention. He was able to adequately explain to the panel why he remained in Azerbaijan after the second detention where he was tortured and how he was able to leave days after his last release from detention. The claimants submitted several letters from family members who had first-hand knowledge of the principal claimant’s detentions by the police resulting from his political activities.[6] The claimants also submitted a progress report from the [XXX] the principal claimant has been seeing in Canada for treatment for his [XXX] related to the trauma he experienced in Azerbaijan.[7]

[13]     The panel finds that, on a balance of probabilities, the principal claimant is an active member of the Musavat party and that the principal claimant’s political activities are known to the authorities. Further, there is a serious possibility that the entire family may face detention and mistreatment by the authorities if they were to return to Azerbaijan.

[14]     Given the credible testimony by the claimant on issues going to the core of the claim, and the corroborating documentary evidence, the panel believes what the claimants have alleged in support of their claim and finds that their subjective fear of persecution on the basis of the principal claimant’s political opinion and the associate and minor claimants’ imputed political opinion is established, on a balance of probabilities.

Objective Basis

[15]     Multiple sources in the National Documentation Package for Azerbaijan report numerous instances of state sanctioned violence and repression of dissenting political opinion.

[16]     According to the United States Department of State Country Reports on Human Rights Practices for Azerbaijan for 2019:

Significant human rights issues included: unlawful or arbitrary killing; torture; arbitrary detention; harsh and sometimes life-threatening prison conditions; political prisoners; arbitrary interference with privacy; pervasive problems with the independence of the judiciary; heavy restrictions on free expression, the press, and the internet, including violence against journalists, the criminalization of libel, harassment and incarceration of journalists on questionable charges, and blocking of websites; substantial interference with the rights of peaceful assembly and freedom of association; restrictions on freedom of movement; refoulement of refugees to a country where they would face a threat to their life or freedom; severe restrictions on political participation; systemic government corruption; police detention and torture of lesbian, gay, bisexual, transgender, and intersex individuals; and the worst forms of child labor, which the government made minimal efforts to eliminate.

The government did not prosecute or punish most officials who committed human rights abuses; impunity remained a problem.[8]

[17]     According to this same source, police summoned more than one hundred members of the Musavat Party around the country to police stations and warned them not to participate in a planned unsanctioned picket scheduled for November 12. On November 12, police prevented the picket from taking place, including by deploying large numbers of officers blocking roads and detaining dozens of party members who attempted to assemble. The government released those who had tried to gather after several hours, with the exception of one organizer who was sentenced to fifteen days of administrative detention.

[18]     This was consistent with reports that many administrative detentions are politically motivated, and authorities ignore provisions in the law for fair trials. The case of a Musavat activist, Azad Hasan, is cited as an example of a trial unjustifiably delayed as judges were purportedly waiting for instructions from the Presidential Administration for months after evidence was submitted before ruling.[9]

[19]     Police are reported to have intimidated, harassed, and sometimes arrested family members of political opposition members. Authorities fired individuals from their jobs or had individuals fired in retaliation for the political or civic activities of family members inside or outside the country.[10]

[20]     Based on the country conditions disclosed in the National Documentation Package, the panel finds the claimants’ fear of return to Azerbaijan to have an objective basis. The claimants have established a well-founded fear of persecution in Azerbaijan.

State protection and internal flight alternative

[21]     States are presumed to be capable of protecting their own citizens, except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of the state’s inability or unwillingness to protect its citizens.

[22]     The panel finds that in this case, the state is the agent of persecution and therefore there is no state protection or viable internal flight alternative available to the claimants. The country information is clear and convincing evidence that rebuts the presumption that adequate state protection is available to the claimants in Azerbaijan.

Conclusion

[23]     Based on the totality of the evidence, the panel finds the claimants to be Convention Refugees and therefore their claim is accepted.

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

[2] Exhibit 2: Basis of Claim Form (BOC) TB8-07131.

[3] Exhibit 1: Package of information from the referring CBSA/CIC.

[4] Exhibit 7: Claimants’ disclosure (personal documents) received December 4, 2018.

[5] Ibid.

[6] Ibid.

[7] Exhibit 8: Claimants’ disclosure (personal document) received August 18, 2020. 

[8] Exhibit 3: Index of national document package for Azerbaijan — June 30, 2020 version, Item 2.1. 

[9] Ibid.

[10] Ibid.

Categories
All Countries Uganda

2020 RLLR 70

Citation: 2020 RLLR 70
Tribunal: Refugee Protection Division
Date of Decision: February 19, 2020
Panel: Dominique Setton
Counsel for the Claimant(s): El-Farouk Khaki
Country: Uganda
RPD Number: TB7-23049
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000069-000074

REASONS FOR DECISION

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

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.[2]

ALLEGATIONS

[3]       You allege the following. The details of your life are contained in your Basis of Claim Form (BOC) provided in evidence.[3] You allege domestic violence by your father, and your husband. Your father forced you to marry a man who was 24 years older than you, whom you did not want to marry. The marriage occurred on [XXX] 2015. Following the marriage, you had to endure violence and mistreatment at the hands of your husband. He did not allow you to eat, or provide you with food. He raped you and was violent with you on numerous occasions, causing bodily injury, which required medical treatment.

DETERMINATION

[4]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your member of a particular social group. You are a woman who is the victim of domestic violent, both as a child and in your forced marriage.

ANALYSIS

Identity

[5]       I find that your identity as a national of Uganda is established by your testimony and the supporting documentation filed, including your passport.[4]

Credibility

[6]       Unless specifically noted in the analysis below, I accept your evidence about the events you encountered in Uganda as being generally credible.

[7]       You have provided documents which support your allegations of domestic violence, which are contained in the evidence, such as confirmation of your birth and marriage, medical reports or records, which include photos of your injuries.[5] You also submitted letters of support from your mother, as well as a letter to you from your mother, a letter from your sister, who had been forced into marriage herself by their father, a friend of hers who helped her to escape and hide out from both her father and her husband.[6]

Objective basis of future risk

[8]       You fear that if you return to your country, your husband will find you, kill you, or maim you, as he has threatened, because of your escape. In addition, you fear continued rape and violence from your husband and your father.

[9]       The documentary evidence in our National Documentation Package (NDP), specifically the United Nations Development Programme’s Uganda Country Gender Assessment, corroborates your allegations:

[t]here is a disconnect between Uganda’s very positive legal framework and the lack of effective implementation or enforcement of gender-positive laws. This means that women’s legal status is precarious, their capacity as economic agents is limited, and their rights are not effectively guaranteed.[7]

[10]     It also states that the country suffers from persistent high level of sexual and gender-based violence. This is also corroborated by the United States Department of State (DOS) report, which confirms that that there are three serious human rights problems in Uganda, which are respect for individual integrity, restrictions on civil liberties, and violence and discrimination against marginalized groups, such as women and children,[8] which is precisely what you have alleged in your BOC narrative and in your sworn testimony.

[11]     Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm: risk of personal harm to yourself, violence, mistreatment, and death.

[12]     The fact that you face this risk is corroborated by the following documents from the Board’s June 28, 2019 NDP for Uganda: the US DOS report, and the Uganda Country Gender Assessment, both noted above, as well as a recent Response to Information Request regarding forced marriages.[9]

Nature of the harm

[13]     This harm clearly amounts to persecution.

State protection

[14]     I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. You alleged in your BOC, and provided detailed testimony regarding the efforts you made at obtaining help from the police on several occasions. You also submitted a letter, dated [XXX] 2015, showing that you went to the police to try to obtain their protection. You testified that the police told you to go home to your husband, and did not provide effective assistance. This is is corroborated by numerous additional, current articles you submitted as evidence.[10] The first article from Africa Renewal of December 20, 2107 exposes the problems that a female member of parliament has experienced in 2017 despite her rise in politics.[11] The victim and elected representative describes men who are current members of parliament who harass her, by overt physical methods and by hounding her. She is frustrated by this and says that “harassment is commonplace in Parliament”, where even there it goes unreported “because we fear the consequences.”[12] The article summarizes the efforts that Uganda has made by passing laws against violence towards women, but how violence is on the rise, despite the laws and policies. In the second report regarding the ineffectiveness of state protection which you provided in evidence, from the University of Sheffield, from April 2018, Uganda – Gender Based Violence Police Briefing, it states that:

Lifetime prevalence of GBV in Uganda is estimated at 51%… suggesting that violence against women is rampant in the country. This statistic is well above the average in Africa and worldwide, making Uganda one of the most dangerous places in the world for women.[13]

[15]     Based on the analysis above, I find, on a balance of probabilities, that adequate state protection is not available to you.

Internal flight alternative

[16]     I have considered whether a viable internal flight alternative exists for you in Kampala, a large city centre where you may be able to support yourself, and live independently. On the first prong of the test,[14] you have testified that your husband and your father continue to search for you. You provided an email message from your friend dated [XXX] 2019, which confirms that they are looking for you, and that your husband threatened her for any information about you.[15] In addition, your sister has advised you in email messages that two men forcefully searched your mother’s home in Kampala, looking for you, and she believes that they have been sent by your husband.[16] You have also received threatening email messages from your husband, which included one dated [XXX] 2018.[17]

[17]     Your friend, [XXX] advises you not to telephone her, as her cellular phone may be tapped. On the evidence before me, I find that there is a serious possibility of persecution throughout Uganda. You alleged that your father and or husband could easily find you wherever you go in Uganda, because your cell phone’s SIM card is registered. You have provided evidence of this in the article entitled, Uganda Telecom Operators to Obtain Users Biometrics and Photos which confirms that the National Identity Registration Authority (NIRA) requires that cell phones be registered for security reasons.[18] The result is that the service operators have all biometric and personal information. You fear that you could easily be tracked because of this, as these service providers are also not secure as the information that they have has been breached. This article states that other Ugandans who had had their phones hacked sought help from the Uganda Communication Commission (UCC), but the UCC were unable to assist the victims due to a lack of “technical capacity to prevent data breaches.”[19] The article confirms that there is continued exposure of the public to data breaches, obtained illegally. As a result, I find that your father or your husband could access the information, and track you through your cellular phone wherever you attempt to go, in Uganda, including Kampala.

CONCLUSION

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

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

[2] Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

[3] Exhibit 2, Basis of Claim Form (BOC).

[4] Exhibit 1, Package of lnformation from the Referring CBSA/CIC, Certified True Copy of Passport.

[5] Exhibit 7, Personal Disclosure received December 6, 2019, at pp. 1-2, 8-10, and 34-35.

[6] Ibid., at pp. 37-48.

[7] Exhibit 3, National Documentation Package (NDP) for Uganda (June 28, 2019), item 5.5.

[8] Ibid., item 2.1.

[9] Ibid., item 2.1, and 5.5-5.6.

[10] Exhibit 8, Country Conditions # 1, at pp. 1-6 and 13-16.

[11] Ibid., at pp. 1-6.

[12] Ibid., at p. 1.

[13] Ibid., at p. 14.

[14] Rasaratnam, Sivaganthan v. ME.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.).

[15] Exhibit 7, Personal Disclosure received December 6, 2019, at pp. p. 56.

[16] Ibid., at pp. 30-33.

[17] Ibid., at p. 21.

[18] Exhibit 10, Country Conditions #2, at p. 3.

[19] Ibid., at p. 3.

Categories
All Countries Ukraine

2020 RLLR 69

Citation: 2020 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2020
Panel: Atam Uppal
Counsel for the Claimant(s): Patricia Ritter
Country: Ukraine
RPD Number: TB7-22915
Associated RPD Number(s): TB7-22971
ATIP Number: A-2021-00800
ATIP Pages: 000063-000068

REASONS FOR DECISION

[1]       [XXX] and her minor son [XXX] are claiming to be citizens of the Ukraine and are claiming refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act(IRPA).[1]

PROCEDURAL

[2]       [XXX] was appointed as the designated representative for the minor claimant, [XXX], a Roma activist appeared as a witness for the claimants.

[3]       This hearing took place via video conference using Microsoft Teams after the parties consented to proceed. I did not have the opportunity to review the original identity documents. I note however, that Canadian officials who have access to your original documents[2] and have not raised any concerns about your identity. Therefore, I find, on a balance of probabilities, that you are both nationals of the Ukraine.

[4]       I have considered your testimony, the testimony of the witness [XXX] who founded the [XXX] in 1977, country conditions documents provided by your counsel[3] and National Documentation Package (NDP) for the Ukraine.[4] I find that the you have established that there is a serious risk of persecution due to your ethnicity that being Roma, should you and your son return to the Ukraine today.

ALLEGATIONS

[5]       Here is a short summary of the allegations;

[6]       That you are a Roma of Servitka clan. You and your family were always victims of harassment and discrimination in the Ukraine. You describe a lifetime of discrimination living in the Ukraine as Roma.

[7]       You state that since the 2014 Revolution, things have become much worse for the Roma and the Roma are being becoming victims of serious persecution.

[8]       You faced illegal searches at your home by undercover Ukrainian police. The police illegally searched your house and took any valuables they found. If you objected or complained, you were arrested and physically abused.

[9]       You cite several such events when you were abused, thrown off train because you were easily recognized as a Roma wearing your traditional garments. Your minor son was also a victim of abuse at his school by both the students and teachers alike.

[10]     You arrived in Canada in [XXX] 2017 with the minor and your husband. Your husband left you and you are not aware of his whereabouts. Your claim was referred to the Board in [XXX] 2017.

[11]     You fear returning to the Ukraine today because you believe that discrimination and persecution for the Roma in the Ukraine is being encouraged by politicians and that the police is also the agent of persecution.

DETERMINATION

[12]     For the reasons that follow, I find that the claimants would face a serious possibility of persecution on a Convention ground and, on a balance of probabilities, would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon their return to the Ukraine, today.

Therefore, I find that the claimants are Convention refugee and that they do have a well-founded fear of persecution or harm should they return to the Ukraine.

ANALYSIS

Identities

[13]     In all refugee claims, the first thing a decision maker must decide is identity. I find that your identity as a citizen of the Ukraine is established by your testimony and copies of your passports in Exhibit 1. I did not have the opportunity to see your original passports but note that officials who have seen your originals, have not raised any concerns.

[14]     Your identity as Roma was established your testimony supported by your witness [XXX]. You were able to speak in Romani language and testified that you taught Romani to your son as well. In addition, I have two documents from the Roma Community Centre[5] in Toronto in support of your identity as a Roma.

[15]     Next, I considered credibility and find you to be a credible witness. Your testimony is consistent with your narrative. I note that you did not attempt to embellish your claim. Your story is believable and supported by objective documentary evidence.

[16]     Documentary evidence indicates that Roma in the Ukraine continue to face societal and institutional discrimination, and that Roma are denied basic human dignity. They experience significant barriers to education, housing, healthcare, social service, and employment.

[17]     Roma are reported to be the most discriminated against ethnic group in the Ukraine, Item

13.1 in the NDP states “Roma are widely regarded as one of Europe’s most marginalised communities. They experience discrimination and rights deprivations in various forms, including police brutality, school segregation and denial of the right to work.”[6]

[18]     Item 2.1 gives example of police failing to protect victims from harassment or violence from a group of violent nationalists from the National Druzhina organization – established with support from the National Corps. They attacked and destroyed a Romani camp in Kyiv after its residents failed to respond to their ultimatum to leave the area within 24 hours. Police were present but made no arrests, and they were recorded making casual conversation with the nationalists following the attack. This was not an isolated event, as there were numerous reports of societal violence against Roma during the year, often perpetrated by known members of violent nationalist hate groups. This report adds that Roma continued to face governmental and societal discrimination.

[19]     Item 13.7 in the NDP states that “discrimination against Roma is at every level of society, including among police, prosecutors, and officials.”[7] This report adds that “throughout 2018, in the absence of any official protection, temporary settlements of Roma in Kyiv and Lviv became an easy target for right-wing violence … attacks on settlements have frequently been preceded by anti-Roma hate speech in the media or opportunistic statements from politicians.[8]

[20]     Justice La Forest in a landmark decision, Ward, in 1993 endorsed the concept of persecution as meaning “sustained or systematic violation of basic human rights demonstrative of a failure of state protection.”[9] That appears to be the case here. In your case the cumulatively impact of life long discrimination and humiliation amounts to persecution.

More importantly, I find that if you were to return to the Ukraine today, there is a serious chance that you will continue to face discrimination and persecution.

INTERNAL FLIGHT ALTERNATIVE and STATE PROTECTION

[21]     Documentary evidence shows that the state agents are complicit in acts of discrimination and persecution, and police stand by and do not intervene to stop violence, against Roma. Moreover, police enter your homes illegally and rob you of your possessions. Unlawful acts by the police even if reported go unpunished. Therefore, I find that you have rebutted the presumption of state protection in your particular circumstances. I also find, on a balance of probabilities, that there is no internal flight alternative available for you in the Ukraine.

CONCLUSION

[22]     Having considered all of the evidence, I find that there is a serious possibility of persecution should you return to the Ukraine today due to your ethnicity as Roma.

[23]     Therefore, I find you to be Convention refugees and accept your claims.

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

[2] Exhibit 1, Package of information from the referring CBSA/CIC.

[3] Exhibit 6, Counsel Disclosure, received September 22, 2020; Exhibit 7, Country Conditions and Claimants’ Personal Disclosure, received September 22, 2020.

[4] Exhibit 3, National Document Package (NDP) for Ukraine (June 30, 2020).

[5] Exhibit 7, Country Conditions and Claimants’ Personal Disclosure.

[6] Exhibit 4, NDP for Ukraine (June 30, 2020), item 13.1, s. 2.2.

[7] Ibid., item 13.7, s. Key Findings

[8] Ibid., s. Livehood

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

Categories
All Countries Guinea

2020 RLLR 68

Citation: 2020 RLLR 68
Tribunal: Refugee Protection Division
Date of Decision: September 1, 2020
Panel: Aminata Touré
Counsel for the Claimant(s): Arthur Ayers
Country: Guinea
RPD Number: MC0-08298
Associated RPD Number(s): MC0-08299
ATIP Number: A-2021-00800
ATIP Pages: 000058-000062

DECISION

[1]       MEMBER: I’m going to render my decision and it goes as followed.  I have considered your testimony and the other evidence presented in this case.  Now, I am ready to render my decision.

[2]       This is the decision from the Refugee Protection Division under claim for refugee protection of the claimants [XXX], file number is MC0-08298, and their minor child, [XXX], MC0-08299.

[3]       The principal claimant is a citizen of Guinea while her child is a citizen of the United States of America.  You are making refugee claims pursuant to s. 96 and 97(1)(8) of the Immigration and Refugee Protection Act.

[4]       You have been appointed as the designated representative for your daughter.   I have considered and applied the chairperson guideline number 3 for children refugee claimant as well as the guideline number 4 for women claimants who fear gender-based persecution.

[5]       I would like to add that when reasons are issued, a written form of the reason may be edited for spelling, syntax, and grammar, and references to the applicable case law and documentary evidence may also be included.

Determination

[6]       I find that you, the principal claimant, is a Convention refugee for the following reasons as a member of a social group, women who are subjected to forced marriage.  I found that your child is not a refugee or a person in need of protection because of fear to return to the United States has not been established.

Allegation

[7]       You alleged the following.  You were the subject of a forced marriage by your father while in Guinea.  You were beaten and abused by your husband.  You left the country in [XXX] 2009, a few months after your wedding, with the help of your mother.  You went to the United States of America where you had your child.

[8]       You alleged that if you return to Guinea, you would be killed or beaten by your ex-husband or by your father because you dishonoured your family and also because you had a child out of wedlock.  You alleged that there’s no state protection for you or an internal flight alternative.

Identity

[9]       Your personal identity as a citizen of Guinea has been established by your testimony and your passport on file.  The identity of your child has been established by her birth certificate and passport from the United States.  I therefore find that on a balance of probabilities the identity and countries of reference have been established.

Well-Founded Fear in Guinea, Credibility

[10]     In terms of your general credibility, I have found you to be a credible witness and therefore I accept what you have alleged in your overall testimony and in your Basis of Claim form.  In support of your claim, you have provided documents confirming your allegation such as a marriage certificate and a written and also the oral testimony from your mother.

[11]     Your testimony was straightforward and was in keeping with your Basis of Claim form and there was no significant inconsistencies or omissions.   You gave details about the wedding, the discussion you had with the people around you, the abuse you went through while married, and how your father imposed his decision on you and the rest of the family.

[12]     The testimony of your mother also confirmed your allegations.  I addressed contradiction regarding your education in your forms, but I find that this contradiction is minor and does not affect the heart of your claim.  Plus, you explained that you were really stressed when you filled the forms at your arrival in Canada.

[13]     I also asked questions about birth certificate that was requested by your father in 2019 according to its own content, you said that there was no way that your father requested that document for you.  Your mother confirmed that she requested the document.  All of that does not explain the content of the document.  It is not enough to overturn your credibility in general.

[14]     I therefore find the following allegations to be credible.  You were a subject of a forced marriage.  Your mother helped you leave Guinea because of that marriage and the ill treatment and abuse you went through while living with your husband.  Your father considered your decision to leave as a humiliation and wants to punish you for that.

Nexus with the Convention

[15]     I find that there’s a link between what you fear and one of the Convention grounds specifically the social group.  Therefore, this claim has been assessed under 96.

State Protection and Objective Evidence

[16]     I find that the adequate state protection will not be available to you in Guinea.  The objective documentary evidence at Tab 5.1.7 of the NDP indicated that forced marriage is a practice that persists in Guinea and is common.  The prevalence of early marriage is among the highest in sub-Saharan Africa. The UN agency states that forced marriage is particularly common among the Fulani and the Malinke.

[17]     You have testified that you have attempt to seek protection, which your mother confirms.   The police told you that they would not intervene in the family matter.  The objective evidence indicates that the civil could protect from forced marriage and it is a punishable offence, but it seems like the disposition of the law are not adequately implemented because of the prevalence of forced marriage in Guinea.

[18]     The UN agency indicates that it is generally very difficult to refuse forced marriage in Guinea. Although some forces indicate that women with education have a higher chance to be able to refuse marriage, they will still face rejection by society because of their decision.  Fleeing marriage is considered humiliation for the family.

[19]     The objective evidence confirms that forced marriage is seen as a family matter by the authorities. There is a limited access to help because of the Jack of resources.  In light of the objective country documentation, I find that the claimant has refuted the presumption of state protection. Based on your personal circumstances as well as the objective country documentation, I find that the adequate state protection will not be available to you in Guinea.

IFA

[20]     I have also considered whether viable internal flight alternatives exist for you.  I have identified [XXX] as a possible IFA.  You mentioned that your father has family there although you were not able to explain exactly how he will find you, it is clear that a single young mother without high education would be under unreasonable difficulties in a small city without family support.  The only person who could help you in Guinea is your mother and she lives in Conakry where you would be exposed to your agent of persecution.

[21]     The documentary evidence indicates that — and that is at Tab 5.1.11 — that a representative of the department family states that, “In many cases single woman can find housing only if they are accompanied by a family member who is also required to provide proof of the familial relationship.  The situation where it is easy for her to get housing without any condition attached, she might be subjected to harassment from either the landlord or the person who helped her obtain the housing.”

[22]     He also states that, “It is often difficult for women to move around on their own and to settle elsewhere alone.  They often need support from the family or from a man.  Women are also strongly advised against travelling or relocating to a new community alone.  There is in fact cause to fear for their safety.  However, age and the presence of a dependent children can be mitigating factors.”

[23]     Taking into consideration profile of the claimant and their personal situation, [XXX] would not be a reasonable IFA for her as a single woman with no support.  I mentioned the credibility, but I just want to add regarding the subjective fear that I also consider that fact that you did not claim for refugee protection in the United States but since I do believe that you would face persecution if you had to go back to Guinea, I think that it is not something that is central to the decision.

[24]     Therefore, I did not take that — the fact that you didn’t claim for protection in the United States — as something that affected my decision.

Well-Founded Fear in the United States for the Child

[25]     As for your child, considering that your lawyer mentioned that you did not have any specific fear for her in the United States, considering that there’s no fear of persecution or any threat under 97 for your child there, I find that you did not establish a well-founded fear for her in the United States.

Conclusion

[26]     Based on the totality of the evidence, I find that the principal claimant is a Convention refugee.  Your claim is therefore accepted.  As for your child, you have not established a serious possibility of persecution or the risk under 97.  Therefore, I find that she’s not a refugee or a person in need of protection.  Her claim is rejected.

[27]     So, that concludes my decision.  I really want to thank you for your testimony today and also, I want to thank Counsel for his support and I really wish you the best.

[28]     CLAIMANT: Thank you so much.

[29]     MEMBER: No problem.

[30]     COUNSEL: Thank you, Madam Board Member.

[31]     MEMBER: I just —

———————-REASONS CONCLUDED———————-

Categories
All Countries Iran

2020 RLLR 67

Citation: 2020 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: February 21, 2020
Panel: Jeffrey Brian Gullickson
Counsel for the Claimant(s): Joseph W. Allen
Country: Iran
RPD Number: MB9-14763
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000055-000057

REASONS FOR DECISION

INTRODUCTION

[1]       [XXX] is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. Her passport proves her identity and that she is a citizen of Iran.

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[3]       The claimant’s religious view is “non believer” and does not follow Islam and refused to [XXX] it to her [XXX] as she was required by the [XXX] where she worked in Iran.

[4]       During her travels to Canada, she had posted photos of her where she did not wear a hijab or chador required for women in Iran. For this, persons at her [XXX] threatened to denounce her to Iranian authorities where she would be suspected of non-Islamic behaviour and for being a non­believer and disproportionately punished.

DETERMINATION

[5]       The claimant is a Convention refugee. She established a serious possibility of persecution for religion and imputed political opinion.

ANALYSIS

Credibility

[6]       She was credible regarding key elements of her claim.

[7]       There were numerous credibility concerns. They were not determinative.

[8]       The National Documentation Package (NDP) for Iran, dated 29 March 2019, Iran refers to severe corporal or other punishment for apostasy, un-Islamic behavior or behavior not consistent with state-prescribed morals consistent with Shia religious practice or behaviour (NDP, tabs 9.8 and 11.1). The NDP mentions that political dissidents are accused by state authorities of serious capital crimes either against Islam or against national security and subject lengthy arbitrary detention and mistreatment in detention (NDP, tab 1.14, p. 10; tab 2.1, pp. 4 and 16).

[9]       Given the above, I conclude that the claimant would face a serious possibility of persecution for religion in Iran for her non-Islamic view.

State protection

[10]     I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection, for reasons mentioned above.

Internal flight alternative

[11]     On the evidence before me, I find that there is a serious possibility of persecution throughout Iran for the claimant, for reasons mentioned above.

CONCLUSION

[12]     The claimant is a Convention refugee.

[13]     I accept her claim.