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All Countries Mexico

2019 RLLR 6

Citation: 2019 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: May 7, 2019
Panel: Marcelle Bourassa
Country: Mexico
RPD Number: MB8-15797
ATIP Number: A-2020-01124
ATIP Pages: 000046-000052

INTRODUCTION

[1]       La demandeure d’asile Madame [XXX], une citoyenne du Mexique, demande l’asile au titre de l’article 96 et du paragraphe 97(1) de la Loi sur l’immigration et la protection des réfugiés.

[2]       Le Tribunal a nommé la demanderesse comme personne vulnérable après avoir examiné une requête en ce sens ainsi que des rapports psychologiques et psychosociaux concernant la demandeure.

[3]       Le Tribunal a accepté comme accommodement que l’on inverse l’ordre des interrogatoires et qu’il soit fourni une interprète de sexe féminin. Le Tribunal a également accepté la présence d’observatrices à titre de soutien psychologique à la demanderesse.

[4]       Tout au long de l’audience et en rendant sa décision, le Tribunal a tenu compte des Directives du Président relatives aux demandeures d’asile qui craignent la persécution en raison de leur sexe.

ALLÉGATIONS

[5]       La demanderesse est allée vivre à [XXX] en [XXX] 2011. Elle gagnait sa vie en travaillant dans différents clubs et discothèques comme serveuse, elle vendait des shooters d’alcool. Elle travaillait toujours dans le même domaine à l’époque où des cartels de drogues tentaient de saisir le contrôle de la vente de drogues et de services sexuels sur ce territoire. Les médias rapportaient des assassinats et des enlèvements de personnes qui tentaient de s’opposer aux projets de ces cartels.

[6]       Madame, quant à elle, travaillait pour un club dont les propriétaires étaient des Chrétiens qui offraient des spectacles de qualité. Ce genre de club était vraisemblablement plus difficile à pénétrer pour ces cartels de vente de drogues.

[7]       La demanderesse a connu un photographe qui a été approché par un cartel pour vendre la drogue et des services de prostitution à la clientèle de ce club. Lorsque celui-ci a refusé de coopérer, il a été enlevé, aucune rançon n’a été demandée, il a été torturé et ensuite relâché.

[8]       Madame a décidé de cesser de travailler dans ce milieu. Elle s’est retrouvée sans emploi pendant quelques mois. Elle a par la suite joint une équipe qui vendait des billets pour ces spectacles, de jour, auprès d’une clientèle qui restait dans un hôtel de luxe.

[9]       Le [XXX] 2017, elle a été abordée à la fin de la journée sur la plage par des gens qui lui ont demandé de coopérer pour vendre de la drogue et des services de prostitution à cette clientèle. La demanderesse a exprimé son refus, elle a été frappée, menacée et a subi des attouchements. À l’arrivée de certains touristes sur la plage, les individus qui l’avaient ainsi traitée se sont enfuis.

[10]     Dès le lendemain, elle s’est présentée pour offrir sa démission. Elle a raison de croire que les agissements des membres de ce cartel étaient connus de la gestion puisque dès son arrivée, les gestionnaires avaient les documents nécessaires pour la congédier.

[11]     Le [XXX] 2017, lorsqu’elle retournait chez elle vers les [XXX], elle a été interceptée dans la rue devant sa résidence. Elle a été enlevée, un mouchoir couvert de produits chimiques a été placé sur son visage, ce qui lui a fait perdre connaissance un certain temps. Lors de cet enlèvement, elle a été violemment rossée, elle a été passée à tabac, elle a été violée et elle a été marquée sur son corps avec des brûlures de cigarette apposées sur ses jambes avec une parfaite symétrie. La demanderesse croit qu’il s’agissait d’une façon de marquer et identifier les femmes qui sont sous l’emprise de ce cartel.

[12]     Elle a ensuite été abandonnée. La demanderesse n’a pas porté plainte auprès des autorités en raison du fait qu’il était bien connu que celles-ci étaient soit complices de ces cartels, ou en avaient peur et refusaient d’agir. Ne voulant pas alerter des policiers complices et par le fait même, s’attirer des ennuis supplémentaires, elle n’a pas été à l’hôpital, elle s’est soignée elle-même comme elle l’a pu.

[13]     Elle a quitté la ville pour aller à [XXX], d’abord chez sa mère et au fil des mois, par la suite, dans son propre appartement. Environ six mois plus tard, elle était prête à tenter de travailler pour y refaire sa vie. Elle a trouvé des emplois dans le domaine immobilier, dans la restauration.

[14]     À la mi-[XXX] 2018, elle a reçu un appel. On lui a dit qu’on l’avait retrouvée et on lui a même précisé ce qu’elle portait ce jour-là. Apeurée, la demanderesse a quitté son emploi, elle a quitté son appartement et elle est retournée chez sa mère. Juste avant son départ du Mexique, elle a pu observer des voitures devant la maison de sa mère. Les occupants de celles-ci semblaient surveiller la maison.

[15]     Elle a quitté son pays le [XXX] 2018, elle est arrivée au Canada le même jour et a demandé l’asile le mois suivant. Depuis son arrivée au Canada, la demanderesse a su qu’en [XXX] 2018, des gens sont entrés chez sa mère, ils l’ont ligotée et frappée, ils l’ont tenue captive pendant plusieurs heures. Ils ont fouillé la maison et ont insisté pour savoir où se trouve la demanderesse.

ANALYSE

Identité

[16]     L’identité de la demanderesse a été établie par la preuve testimoniale ainsi qu’à l’aide de la preuve documentaire déposée au dossier. Celle-ci inclut des photocopies de passeport émis par les autorités mexicaines, les originaux desquels ont été saisis par les autorités d’immigration canadiennes. Le Tribunal est satisfait de la preuve quant à l’identité de la demanderesse.

Crédibilité

[17]     Le Tribunal se doit de mentionner que l’état de détresse de la demanderesse est visible dans son visage et dans ses gestes. Malgré cela, elle a répondu aux questions de son conseil et du Tribunal de façon directe. Elle a offert des détails lorsque cela fut requis. Son témoignage était souvent émotif.

[18]     Elle a également déposé en preuve des documents pour corroborer les emplois qu’elle a eus. Le Tribunal a également en preuve des photos des marques de brûlures de cigarette sur ses jambes auxquelles elle a fait référence auparavant. De plus, la demanderesse a également offert de nombreux détails qui ont été relatés aux intervenantes dans le domaine psychologique dont les rapports sont en preuve. Enfin, la demanderesse a déposé des lettres de différents témoins pour appuyer sa demande.

[19]     Son témoignage était tout à fait conforme au narratif déposé en annexe, son formulaire Fondements de la demande d’asile, et les faits relatés dans les rapports psychologiques et psychosociaux ainsi que dans les lettres d’appui.

[20]     Le Tribunal croit la demanderesse.

Application de l’article 96 de la Loi sur l’immigration et la protection des réfugiés

[21]     Les motifs des agents de persécution sont multiples. D’une part, leur but ultime est de faire de l’argent. Ils ont ciblé la demanderesse, la considérant comme étant une femme attirante qui serait capable d’aller chercher une clientèle importante pour la vente de drogues et de services de prostitution.

[22]     Les agents de persécution sont possiblement motivés par un esprit de vengeance ou la volonté de donner l’exemple à d’autres qui auraient pour idée de refuser de coopérer avec eux, mais essentiellement, lorsqu’une personne est violée, c’est en raison du fait qu’elle appartient au groupe social des femmes, qu’elle est victime. Ainsi, le lien avec la Convention est établi.

[23]     Quant à savoir s’il existe une crainte bien fondée prospective, le Tribunal note que bien que la demanderesse ait quitté son emploi et tenté de refaire sa vie à [XXX] qui, par voiture, se trouve à 24 heures de là où les problèmes ont commencé, ses persécuteurs ont fini par la retrouver environ six mois plus tard. Ils l’ont menacée, ils ont surveillé la maison où elle résidait et ils ont fini par traiter la mère de la demanderesse avec violence dans le but de retrouver la demanderesse.

[24]     Le Tribunal estime qu’il est raisonnable de croire qu’elle encourt plus qu’une simple possibilité de persécution si elle devait retourner dans son pays aujourd’hui. Ainsi, l’article 96 trouve son application.

Protection de l’État

[25]     La demanderesse n’a pas demandé la protection des autorités mexicaines pour se protéger. Néanmoins, elle a établi par la preuve documentaire que les cartels qu’elle craint ont su s’imposer, malgré les mesures de protection de l’appareil étatique. Ils ont su faire régner un niveau de violence endémique, soit en s’assurant la corruption de certains policiers ou encore, en faisant régner la terreur au sein de celles-ci.

[26]     Le Tribunal dispose d’une preuve claire et convaincante de l’incapacité ou du manque de volonté de ces autorités de protéger ses citoyens contre la violence exercée par ces cartels, tel que le reflète le niveau épouvantable de viols et de violence qui se produisent en toute impunité.

Possibilité de refuge intérieur

[27]     Le Tribunal n’a pas abordé directement la question de la possibilité de refuge intérieur dans les questions posées à la demanderesse. Néanmoins, la preuve révèle que la demanderesse a tenté de refaire sa vie à [XXX], à plus de 24 heures de route, si on se déplace en voiture. La demanderesse a été retrouvée et menacée à cet endroit, peu après avoir repris le travail.

[28]     Cela porte à croire que ces cartels bénéficient de la complicité de gens dans l’appareil étatique qui ont accès aux banques de données des travailleurs. Quoi qu’il en soit, ils ont réussi à a trouver et n’ont pas hésité à la menacer et même, à faire violence à sa mère pour essayer de la retrouver.

[29]     Le Tribunal estime que la demanderesse a établi qu’il n’existe aucun endroit où elle pourrait vivre normalement, en toute sécurité au Mexique. Dans de telles circonstances, il n’est pas nécessaire d’examiner le deuxième volet de la possibilité de refuge intérieur.

CONCLUSION

[30]     Après examen de l’ensemble de la preuve, le Tribunal conclut que Madame [XXX] a qualité de réfugiée au sens de la Convention et par conséquent, accueille sa demande d’asile.

Categories
All Countries India

2019 RLLR 73

Citation: 2019 RLLR 73
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: I. Colle
Counsel for the claimant(s): Peter J. Wuebbolt
Country: India
RPD Number: TB9-05340
ATIP Number: A-2020-01274
ATIP Pages: 000214-000220

DECISION

[1]       MEMBER: So, I have considered your testimony and the other evidence in the case and I’m ready to render my decision, orally.

[2]       I would like to add that in the event that written reasons are issued, a written form of these reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included. I also may add additional footnotes and correct any inadvertent errors.

[3]       Now, the claimant is, Mr. [XXX] and he is a 40-year-old citizen of India and is claiming refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       I considered this claim mainly under Section 96, since the claimant claimed persecution based on political opinion or imputed political opinion.

[5]       Now, for the reasons that will follow, I find that you are a Convention refugee, for the following reasons:

[6]       He is a resident citizen of lndia who lives in Punjab State.

[7]       He is a member of the Shiromani Akali Dal, SAD, political party.

[8]       Now, there are two Akali Dal parties in Punjab. The claimant said he was associated with the [XXX] wing, which is led by [XXX].

[9]       He said he was beaten and harassed by members of the Congress Party and also by their links with the police. He said he was detained and tortured and was asked to appear at the police station every month for an indefinite period.

[10]     The claimant is or was a [XXX] in India.

[11]     He was a member of the [XXX] wing since [XXX] 2011. He used to assist his cousin in arranging pilgrimage trips for community members in Yatra in Pakistan and he would also take part in organizing Party meetings with the help of community members.

[12]     In [XXX] 2017, a Congress Party area leader noticed him and asked him to join the Party. He refused to join.

[13]     In [XXX] 2017, he was beaten by three Congress Party members when he was convincing a group of people to attend his Party meetings.

[14]     He went to a doctor for treatment. He went to the police to report the incident but instead of helping him, the police threatened him with detention for making false accusations against Congress Party members and ordered him to leave the station.

[15]     In [XXX] 2017, he was able to convince four community members to join the Party. One of them had previously supported the Congress Party and he was also a cousin of the Congress Party leader.

[16]     In [XXX] 2017, he received a threatening phone call from a Congress Party member and on [XXX], 2018, he was picked up from home by the police and detained without charges. He was interrogated and beaten by the police and told that he had links with Sikh militants.

[17]     They questioned him about his involvement in the arrangement of [XXX] trips for pilgrims to Pakistan and the addresses of people that had assisted him in trips in the past and the people he knew in Pakistan. An officer warned that he could be threatened indefinitely on suspicion of espionage.

[18]     His uncle came and after some negotiations, was able to get him out of detention on [XXX], 2018 after paying a bribe.

[19]     However, the officer still told him he had to report every month indefinitely and he warned him not to be involved in any political activity and if he did not show up at the station, he would be tracked down and picked up from anywhere in the country and brought to the station where they would torture him to death.

[20]     Upon his release, he needed medical attention.

[21]     About a week later, the Congress leader, again, threatened him that it is a matter of time before he is beaten to death or permanently detained by authorities.

[22]     He started to make plans, had to collect substantial funds in order to leave the country. He relocated to the state of Himachal Pradesh. It’s to the east of Punjab. So, he stayed there and still though, would come back to the state of Punjab to report monthly and when he would come back, he alleged that he would be slapped, manhandled and humiliated by the authorities.

[23]     His friend was able to find an agent who asked for 20 lakh rupees to make overseas travel arrangements. He made visa applications for himself and his spouse, without their daughters and he arrived in Canada on [XXX], 2018, accompanied by his spouse, who soon returned to India.

[24]     He was in status. He had status for about six months and was able to contact present Counsel and started the process of making a refugee claim before his status expired in [XXX] 2018.

[25]     He approached Immigration with his Counsel in [XXX]. The forms were finally filled out in [XXX] 2019.

[26]     Now, the claimant also alleged that he suffered severe mistreatment, both physically- he underwent beatings and harsh treatment in prison and has continued to do follow-up medical visits and he said that, because of the continuing stress and tension, also because of the mistreatment, eventually contributed to him suffering a [XXX] in 2019, for which he still being treated today.

[27]     Now, the claimant, regarding identity, he said he had lost his passport and he provided a police, Toronto Police Service report, part of Exhibit 5, that he reported the loss of his passport but I note in his Exhibit 1, there is a certified true copy of his Indian identity card from the government, issued by the government of India, with his name, [XXX] and it has his address in Punjab, [XXX] in Punjab.

[28]     The claimant spoke fluently in Punjabi. He had other identity documents. In Exhibit 5, people attesting to his identity, including a letter from a spiritual centre, from relatives. There is also copies of his work in India as a [XXX].

[29]     So, on a balance of probabilities, I conclude that the claimant is who he says he is and that he is from the Punjab.

[30]     I found the claimant to be a very credible witness and, therefore, believe what he has alleged in support of his claim. I agree with Counsel that he did not exaggerate or embellish his claim. He testified in a straightforward manner and there were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before me.

[31]     During the hearing, I asked for additional details and he credibly is, I find, on a balance of probabilities, a member Shiromani Akali Dal Party, the XXXX wing. He was able to identify the leader. He was able to identify members of the provincial assembly, both from the Akali Dal Party and from the, what he called, his agents of persecution, from the BJP Party.

[32]     He gave vivid details about his detention in jail at the police station in XXXX, how he was beaten, humiliated, sometimes the officers went out of their way to humiliate him and to beat him and he was kept, basically, in a state of terror for every time he would report every month and while the claimant did relocate to, as I said, the neighbouring state of, Himachal Pradesh and we’ll go into that later as we discuss internal flight alternative.

[33]     So, I find that he was in effect, he was – I would not – his profile was not as a high-level Shiromani Akali Dal member, nor a low level. I think. I think he was a mid-level member who was active in his party and had good knowledge of the political situation in Punjab and credibly came to the attention of Congress Party members.

[34]     Now, in this case, given that the – in this case, in that the police were agents of persecution, I find that state protection would not be reasonably forthcoming.

[35]     Now, I find that the claimant has made a claim under Section 96, political opinion and before we get into that and the issue of IFA, I’m going to just note that he had many corroborating documents in his Exhibit 5 that attest to his political involvement and the history of abuse that he alleged.

[36]     Now, before we get into documents, I should also mention, I did consider the issue of delay in making a claim but I note the claimant came with a visa, was never out of status and made arrangements with Counsel to make his refugee claim before that status had expired.

[37]     So, in any event, the delay in making a claim cannot be a sole reason for denying a claim and in this regard, I’ve given him the benefit of the doubt.

[38]     In Exhibit 5, we have, attesting to his religious background, the letter from the [XXX] in Toronto.

[39]     I found a letter also from his Party in Exhibit 5 at page 2, which, on a balance of probabilities, I find genuine and it attests to his persecution he suffered in Punjab.

[40]     There is supporting affidavits from family and Party members throughout. Again, I find no inconsistencies in those.

[41]     There is plenty of documentation that he was a [XXX]. He did explain that there was a Canadian visitor’s visa. He didn’t know what the agent filled out, claimed he worked for the local government. But there’s documents in Exhibit 5 that attest to his work in the agricultural industry as a [XXX].

[42]     There is also – and I was able to examine the originals – again, I could find no discrepancy, internal discrepancies in these documents. There is page 13 document from the [XXX] Clinic. There is another one from a hospital in – [XXX] Hospital. There is also his continuing treatment in Toronto in Etobicoke.

[43]     It states on page 15 from, Dr. [XXX], that he is, he has a [XXX] history and he has attended to his office on six times.

[44]     There is some more comprehensive consultation report on the [XXX] situation, starting at page 16. It’s a consultation report that was done on [XXX], 2019. It talks about his [XXX] history, the impairment he has undergone, as well.

[45]     There is also many photos of his political and agricultural activities as a [XXX] in Punjab.

[46]     So, on a balance of probabilities, I find that he was a [XXX] and he was involved with the Party.

[47]     Now, internal flight alternative, I considered whether there was a viable internal flight alternative for you. I identified a number of areas in India, including in the neighbouring state at Himachal Pradesh.

[48]     Also, I mentioned cities such as, Mumbai and Calcutta, Delhi, also as, Hyderabad. Now, I should note that in regards to Himachal Pradesh, the ruling party of the state is his alleged agent of persecution, the Indian National Congress and I considered the other – his argument that he could be traced by his residency card or that he could be traced by the police when he’d have to rent, for example, when he’d have to do some requirements and procedures for tenant registration, that he could be traced that way.

[49]     However, I conclude that in regards to the first prong of the test, there is no serious possibility of persecution based on a review of the documentary evidence that, for example, in the National Documentation Package, Item 14.10, the Home Office Report on Internal Relocation, at page 6, states that:

“Tracking and surveillance systems appear to be limited and there is no centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state or in other states or union territories and that each state and union territory has responsibility for its own separate police force and effectiveness and conduct varies across states.”

[50]     So, I find, based on a review – especially of Exhibit 14.10, there is no serious possibility of him being traced. It says that, India, for example, at page 10:

“India does not have a centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state let alone in other states or union territories and that tracking and surveillance systems appear to be limited.”

[51]     However, I have to also consider the second prong of the test and that whether it be reasonable, in all the particular circumstances, for the claimant to relocate to those IFA identified areas, such as, Calcutta or Delhi. I did not consider Himachal Pradesh because it’s controlled by the Congress Party.

[52]     Now, the Federal Court has mandated the Board or the Refugee Division to consider other factors under Section 96 – I’m talking about- not 97 – 96 imputed political opinion or political opinion.

[53]     The Court has identified also, medical and psychological reports that provide objective evidence and that I’m mandated to consider whether it would be unduly harsh to expect a claimant to move to potential IFA areas.

[54]     Now, I considered the medical evidence that was in Exhibit 5 in finding that it would not be reasonable in all his particular circumstances, the claimant’s particular circumstances, to relocate to these IFA areas. The medical evidence demonstrates, on a balance of probabilities, that the claimant suffered severe beatings and that it led to a series of events and, on a balance of probabilities, that led to his current medical state.

[55]     I see the claimant had to then report once to the police but at least reported five or six times. Every time he went, he underwent beatings. This had a cascading effect on his medical health.

[56]     I note that the claimant subsequently, in Canada, suffered from a [XXX] that incapacitated him to the point that at times, he could not even speak Punjabi, could not even write, although that’s recovered. He was severely restricted in the use of his right hand. It severely affected his ability to work, let alone as a [XXX], but let alone work and he has now, even in the hearing, had to wear a monitor around his neck that monitor’s his medical condition to detect any possible ongoing or future [XXX].

[57]     So, given the claimant’s very unique medical situation, that’s corroborated by at least three reports in Exhibit 5, I find, on a balance of probabilities, under Section 96 that the second prong of the test, that it would not be reasonable, in all his particular circumstances, to relocate to these IFA designated areas, given his medical condition as a [XXX] patient who is undergoing still, some after effects that could plausibly be linked to his mistreatment, harsh mistreatment, at the hands of Indian police in the state of Punjab, where he was detained, beaten and humiliated.

[58]     So, given in regards to this medical evidence, again, I’ve afforded the claimant the benefit of the doubt. I find that it is, on the balance of probabilities, that based on <inaudible> medical evidence, he did suffer severely and harshly because of mistreatment, both physically, psychologically and it affected his physiology as well and that, given his situation as a [XXX] patient right now and his inability to work now it would not be reasonable, in all his particular circumstances, to relocate to the IFA designated areas.

[59]     So, I said I examined all the originals. There was no discrepancies and I will return them now to Mr. [XXX].

[60]     So, in summary then, the claimant – I considered the claimant’s personal situation in deciding and determining the reasonableness of the IFA and I considered both his medical condition and his inability to earn a livelihood.

[61]     Therefore, I conclude that the claimant, Mr. [XXX], is a Convention refugee and, therefore, accept his claim.

[62]     Thank you very much.

[63]     The hearing is concluded.

——— REASONS CONCLUDED ———-

Categories
All Countries Jamaica

2019 RLLR 72

Citation: 2019 RLLR 72
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2019
Panel: M. Robinson 
Counsel for the claimant(s): Pablo Andres Irribarra Valdes
Country: Jamaica
RPD Number: TB8-30002
ATIP Number: A-2020-01274
ATIP Pages: 000210-000213

DECISION

[1]       MEMBER: so I’m going to start that again. The panel has considered your testimony and all the other evidence in this case and the panel is now ready to render our decision orally. You [XXX] claim that you are a citizen of Jamaica and are making the claim for refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In assessing this claim the panel considered the chair person’s Guideline 9 proceedings before the IRB involving sexual orientation, gender identity and expression. 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.

[3]       Your claim is accepted. We find that you are a Convention refugee as you have established a well founded fear of persecution in Jamaica based on a convention ground and that is having membership in a particular social group namely as a gay male.

[4]       The details of your allegations were documented in your basis of claim form as well as your oral testimony.

[5]       In summary you fear persecution in Jamaica because of your sexual orientation as a gay man. You allege that while growing up you have been the subject of negative treatment and verbal abuse due to your perceived sexuality and famine behaviours.

[6]       During your employment with the [XXX] and as a [XXX] you were called homophobic slurs and faced hostility and ridicule for your perceived sexual orientation.

[7]       You allege that you were in a same sex relationship in Jamaica from approximately 2014 to 2017 as well as casual encounters after that relationship ended.

[8]       On one occasion visiting your mother two men yelled homophobic slurs at you for your red coloured extensions and they threatened your life after you evaded the situation. On another occasion in [XXX] 2018 you were threatened from a man in a car and a group of men on the street. You allege that there is no state protection for you or an internal flight alternative.

[9]       Your personal identity as a national of Jamaica is established based on your testimony and documents namely the certified true copy of your passport in Exhibit 1.

[10]     The panel therefore finds on a balance of probabilities that your identity and country of reference have been established.

[11]     The panel finds that there is a link between what you fear and one of the five convention grounds, specifically your membership in a particular social group that of a homosexual man.

[12]     In terms of your general credibility, overall the panel found you to be a credible witness and the panel therefore accepts what you have alleged in your oral testimony and in your basis of claim.

[13]     You have testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before us that were not satisfactorily explained.

[14]     The panel also notes that the allegations that you write in your basis of claim narrative and which you have testified about are supported by documentary evidence that you have provided.

[15]     The panel notes that this case is very well documented by corroborated personal documents to establish your sexual orientation as well as some of the other allegations in your claim specifically you submitted numerous letters of support from your current partner, ex partners, friends as well as social media and text correspondence between you and your close friends and partners.

[16]     You have provided copies of photographs including photographs of your employment and relationships. You have brought with you today Mr [XXX](ph) your current partner in Canada. He was a credible witness and testified with consistency in relation to your testimony to the genuineness of your relationship.

[17]     You have also brought your brother [XXX](ph) with you as a witness, although he was not required by the panel to testify.

[18]     The panel therefore finds on a balance of probabilities that you are a homosexual male. The panel believes that you have been in relationships with men in Jamaica and Canada. The panel believes that you have been subject to threats and abuse as a result of your sexual orientation. The panel believes that should you return to Jamaica you will be targeted and persecuted by the homophobic community due to your sexual orientation. The panel therefore finds that your subjective fear has been established.

[19]     The panel finds based on a review of the national documentation package that what you fear is objectively well founded. The documents show that homosexual acts between males are criminalized in Jamaica while the laws are not enforced negative attitudes and a climate of homophobia persist and is promoted through some types of Jamaican music by churches and politicians who have made negative statements towards sexual minorities.

[20]     The objective documentation supports your allegations that threats of violence and attacks against sexual minorities are frequent and widespread in Jamaica. This is also indicated in the articles provided by your counsel.

[21]     Person’s in the LGBTQ community in Jamaica have been attacked and are the targets of mob violence. Therefore the panel finds that you have a well founded fear of persecution.

[22]     The panel finds that adequate state protection would not be available to you were you to seek it in Jamaica.

[23]     You have stated in your narrative and testimony that you did not seek protection because you believed the police to be against homosexuals and feared escalating the situation in your community should the police investigate the incidents where you felt threatened.

[24]     The objective indicates, the objective evidence indicates that gay men are often reluctant to report incidents for fear of their well being and fear of extortion based on their sexual identity. Sources report that police often fail to take action regarding incidents of violence directed at sexual minorities even after being reported.

[25]     The climate of hostility towards sexual minorities and documentations such that shows that Jamaica has failed to develop a legal system that is responsive to and inclusive of the rights of the LGBTQ community.

[26]     The documentation reports that the state has failed in its obligation to take appropriate measures to prevent attacks and to vigorously investigate and prosecute attackers.

[27]     In light of the objective country documentation the panel finds that you have rebutted the presumption of state protection and that adequate state protection would not be available to you in Jamaica.

[28]     The panel has also considered whether a viable internal flight alternative exists for you. The country documentation indicates that the situation for individuals in circumstances such as yours is the same throughout the country. The climate of homophobia and violence exists throughout Jamaica. The panel therefore finds that there is no viable internal flight alternative available to you.

[29]     Based on the totality of the evidence the panel finds that the claimant is a Convention refugee. Your claim is therefore accepted. This concludes the hearing today.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

2019 RLLR 71

Citation: 2019 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2019
Panel: Daniel Marcovitch, Miranda Robinson, Dawn Kersha
Counsel for the claimant(s): Vilma Felici
Country: El Salvador 
RPD Number: TB8-27180
ATIP Number: A-2020-01274
ATIP Pages: 000207-000209

DECISION

[1]       MEMBER: We’ve considered your testimony, evidence and supporting documentation and we are ready to render our decision orally.

[2]       This is the decision for [XXX] who I’ll-, who I will refer to as the claimant, who claims to be a citizen of El Salvador. He’s claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The details of the claimant’s allegations are documented in his Basis of Claim form and in his oral testimony.

[3]       The claimant alleges he fears a risk of harm from society in general and criminal gangs in particular in El Salvador because of his sexual orientation as a gay man.

[4]       The Panel determines that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act. As he has a well-founded fear of persecution based on his membership in a particular social group.

[5]       The Panel finds that the claimant has established on a balance of probabilities his personal identity and national identity as a citizen of El Salvador through his testimony and the disclosure of the claimant’s identity documents, namely his passport.

[6]       The claimant testified in a candid, straightforward manner and without embellishment. There were no discrepancies and inconsistencies, omissions or contradictions in the claimant’s oral testimony and the other evidence before the Panel. The claimant readily answered all the questions without hesitation and provided further detail when asked to do so.

[7]       The claimant provided supporting documentation in the form of a denunciation to the Attorney General and support letters from family members to substantiate his allegations. No credibility concerns arose and a session of reasons arose to doubt the truthfulness of the claimant.

[8]       The Panel therefore finds on a balance of probabilities that the claimant is a credible witness.

OBJECTIVE DOCUMENTATION

[9]       In recent years, El Salvador’s government has enacted several positive measures to protect members of the LGBT community. While in office in 2010, Salvadorian President Mauricio Funes signed executive Order 56 prohibiting discrimination based on sexual orientation and/or gender identity by executive branch agencies. Further, homosexuality is not criminalized in El Salvador and the country’s constitution protects a person’s right to life and physical integrity.

 [10]    It also establishes the equality of all persons before the law. Also, El Salvador has ratified the international covenant on civil and political rights which has been interpreted to pr-, to include protection from discrimination for LGBTI people. However, even with the positive steps just noted, there are still deeply ingrained social prejudices that lead to the persistence of systematic violence carried out by State actors. In addition, the absence of processes aimed at achieving accountability plays into perpetrators’ ability to act with impunity, repeating the cycle of violence and discrimination. This extends to crimes and other violence motivated by hatred or prejudice that are carried out by other members of society.

[11]     A review of the documentary evidence pertaining to the situation of sexual minorities in El Salvador shows that sexual minorities face human rights abuses, including acts of violence.

[12]     Discrimination against sexual minorities was widespread. Thus, being gay, bi-sexual, transgender and intersex communities faced risks and suffered violence and intimidation from State agents, individuals and private groups. LGBT persons have been killed due to their sexual identity. LGBT persons are some of the most vulnerable popu-, populations in El Salvador. And are discriminated against in education, health care and employment. A serious aspect of violence against sexual minorities is criminal gangs.

[13]     The documentary evidence indicates that these groups acted in an extremely violent way, usually attacking and murdering sexual minorities. The claimant testified to hav-, to having personally experienced threats and violence from members of what he believed to be a gang. Non-governmental organizations have reported that public officials, including the police, engaged in violence and discrimination against LGBTI persons. Sexual minorities were ridiculed when they applied for identification cards or reported cases of violence against LGBTI persons.

[14]     Documentary evidence indicates that all members of LGBT persons tend to remain unsolved, violence sorry, violations of human rights of LGBTI people are not investigated by the State in effective or adequate manner and perpetrators have not been punished. It’s also noted that State authorities did not act with due diligence to prevent such acts of violence.

[15]     Based on the documentary evidence before me and the Panel, we find that the claimant’s allegations of a risk of harm, based on a sexual orientation are supported by the objective documentary evidence.

[16]     The Panel also finds on a balance of probabilities, that adequate state protection would not be forthcom-, forthcoming on a forward-looking basis.

INTERNAL FLIGHT ALTERNATIVE

[17]     Given the lack of adequate state protection available to the claimant. And given the fact that the gangs are prevalent throughout El Salvador, the Panel finds on a balance of probabilities that the claimant would face a serious possibility of persecution anywhere in El Salvador if he were to return and attempt to live openly as a gay man.

[18]     Therefore, the Panel finds that there’s no viable internal flight alternative available to the claimant.

[19]     So, in conclusion, we find that the claimant would be subject to a serious possibility of persecution should he return to El Salvador. And having considered the totality of the evidence, we find that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

[20]     And therefore, accepts his claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Bangladesh

2019 RLLR 70

Citation: 2019 RLLR 70
Tribunal: Refugee Protection Division
Date of Decision: October 24, 2019
Panel: Kristina Genjaga
Counsel for the claimant(s): Aleksandar Jeremic
Country: Bangladesh
RPD Number: TB8-26458
ATIP Number: A-2020-01274
ATIP Pages: 000204-000206

DECISION

[1]       MEMBER: I have considered your testimony and the other evidences in this case and I’m ready to render my decision orally. I would like to add than in the event that written reasons. You could do it at the same time. Okay? I would like to add that (inaudible) in the written reasons are issues. A written of these reasons may be edited for spelling, syntax and grammar and references to the applicable case law and documentary evidence may also be included.

[2]       The claimant, [XXX], claims to be a citizen of Bangladesh. He is claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration Refugee Protection Act. In deciding their claim and have considered your testimony and the documentary evidence filed. In addition, I have considered Guideline number 9, the SOGIE Guidelines, in this particular case.

[3]       Your allegations are set out in your Basis of Claim Form in (inaudible )tive. The following is a brief summary of your allegations. You alleged that you ‘re a bisexual man and that you work for an [XXX] that supported the LGBTQ community. You fear the authorities. A same-sex relationships are considered illegal in Bangladesh and you also fear the Jamaat-ul-Mujahideen, the JMB, that you be killed by them due to your activities in support of the LGBTQ community.

[4]       You alleged that you started working with this [XXX] in 2011 called [XXX], that you’re a [XXX] for this [XXX], that you helped secret meetings for members of the LGBTQ community in houses and as a result you started to receive threatening phone calls that you believe came from the JMB. You also wrote an article in the newspaper, I believe, [XXX], as regarding [XXX], dated [XXX] of 2015. You also started subsequently to receive threatening phone calls and letters in your mail box that came from the JMB. You reported this to the police but they did not assist you. You continue to have problems with the JMB. You had to go into hide or leave actually [XXX] and go into hiding in several places before you eventually went back to Dhaka in [XXX] 2016. In subsequently, five (5) men with machetes came to your home and you were able to escape. You stayed at a friend’s house and subsequently left for the United  States in [XXX] 2016, and you made your way to Canada in October 17, 2018, and made a claim for refugee protection.

[5]       I find that you’re a Convention refugee based on two (2) grounds. First, base on the ground of your sexual orientation as a bisexual individual and also, base on the ground of membership in a particular social group that being a former [XXX] worker for the LGBT community.

[6]       For the following reasons, your identity is established by your testimony and the supporting documentation filed found in Exhibit 1. I believe a certify copy of your passport is in Exhibit 1. I find you to be a very credible witness and therefore believe what you have alleged in support of your claim. You have testified in a straightforward manner and there were no inconsistency and your testimony and the materials before me. You did not exaggerate or embellish your claim and you have provided an extensive collaborative personal documents in Exhibit 6, 7 and 8 that support your claim, and they include quite a few letters of support from you, the police report, general diary entries. Heavy remaiance was placed on the-, all your documents showing that you work for [XXX] and also the threatening letters from the JMB and also the newspaper article that you wrote in title [XXX]. All these documents support your allegations.

[7]       The Panel did have a concern regarding the revelment and also why your failure to claim for the United States. However, the Panel has accepted your explanation in terms of the first time returning back to Bangladesh because your wife was ill and also your explanation for why you didn’t claim because you couldn’t afford the fees and also the fact that, entered Canada due to the changes in the United States under the Trump administration. Therefore, the Panel did not go on negativity inferences to the credibility of the claimant and accepted his explanation in that regard.

[8]       Now, as for the objective documentary evidences that appear in Exhibit 3, 5 and 6, it indicates there’s a problem for the LGBTQ and the homosexual community in Bangladesh and it indicates, it is well supported that concentral say in same-sex sexual activity is illegal under Section 7377 of the Code of Criminal Procedure and that the police uses the law as a pretext to bully individu-, LGBTQ individuals as well as to limit registrations of LGBTQ organizations.

[9]       Some group social report harassment under suspicious behaviour provision of the police code and this is all in Exhibit 12.1, the DOC report, sorry, 2.1 of Exhibit 3. In Exhibit, sorry, 2.2 of Exhibit 3, the World report 2000-, it stated that, January 2018, it indicates that they’re continued problems for gay rights activists and the-, it indicated that in May, the Rapid Action Battalion raided a gathering in Dhaka, arresting 28 men for homosexuality and drug possession.

[10]     In Exhibit 1 believe, that there are several documents in Exhibit 3 also indicate that various groups target the lesbians, gays, bisexuals and transgender and intersex people, in the name of Islam, killing dozens of them in targeted attacks and that the police did not offer enough protection to people and also the LGBT community was reluctant to apperse the police fearing they would be charged to harass.

[11]     In a Exhibit 6.1 of Exhibit 3 is an excellent summary of the situation of the LGBTQ community. It says over the last three (3) years Bangladesh has becoming increasingly   torned   by violence, extremists and there are evidences pointing growing threats of extremist serment in mosques throughout Bangladesh and that routinely condemn homosexuals as heretics and they are to be punished or kill and this is echo the local social media posts condemning homosexuality and justifying these attacks. And the fear of the LGBT community was realized last year when two (2) activists were brutally murdered by attackers associate with Al-Qaeda and the revilement was slow to condemn their motives and the prime minister suggested those of challenging suicidal norms and religions, and sexuality should be considering leaving the country.

[12]     This lack of-, and they are more documents in our package supporting the problems of the LGBT community faces. So it is clear from the documentary evidence that you may face a severe problem if you return back to Bangladesh not only because of your sexual orientation but also because of your activism in to help the LGBT community.

[13]     I find that, on the balance of probabilities, there is more than a reasonable possibility of persecution if you go back to Bangladesh. I also find you rebuted the presumption of state protection as of the police are also sometimes the perpetrators and are unable to protect you. I also find that unreasonable for you to seek state protection in this case. I also find that there is no internal flight alternative for you because the situation would be the same wherever you are in Bangladesh.

[14]     Therefore, I concluded that you’re a Convention refugee and I accepted your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Jamaica

2019 RLLR 69

Citation: 2019 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: December 18, 2019
Panel: L. Bonhomme
Counsel for the claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-24791
ATIP Number: A-2020-01274
ATIP Pages: 000199-000203

[1]       MEMBER: This is the decision for the following claimant, [XXX].

[2]       You are claiming to be a citizen of Jamaica and 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 Chairperson’s Guidelines on women refugee claimants fearing gender related persecution.

[4]       You’ll receive an unedited transcript of this oral decision in the mail in approximately three weeks.

[5]       Your counsel will also receive a copy and will answer any related questions you may have at that time.

Determination

[6]       Your claim is accepted.

[7]       I find that you are a Convention refugee on the grounds of your membership in a particular social group as a woman facing gender-based violence for the following reasons.

Allegations

[8]       You allege the following.

[9]       You are a citizen of Jamaica and you are in an abusive relationship with a man in Jamaica, [XXX], from 2011 to [XXX] 2016, at which time you fled Jamaica because you were afraid.

[10]     You allege that you moved in with [XXX] in 2011 and approximately a year later he started being physically abusive to you and he was also physically abusive to your son, [XXX] (Ph.).

[11]     The one time you tried to leave him while you were in Jamaica in [XXX] 2013, he stabbed you in the [XXX] with a knife and you sustained a serious wound which left a scar.

[12]     You allege that [XXX] has continued to threaten you while you have been in Canada through your parents.

[13]     You allege if you return, [XXX] will harm you or kill you, as he has threatened.

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

Identity

[15]     Your personal identity as a citizen of Jamaica has been established by your testimony and the supporting documents filed in the exhibits, namely the certified true copy of your Jamaican passport and Canadian visa.

[16]     I find that on a balance of probabilities, that identity and country of reference have been established.

Nexus

[17]     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, as a woman facing gender-based violence, and therefore I’ve only assessed your claim under section 96.

Credibility

[18]     In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and in your Basis of Claim form.

[19]     You were forthcoming and answered all questions put to you.

[20]     You gave thoughtful answers and did not embellish your evidence in your testimony.

[21]     Your evidence was consistent between your testimony and your Basis of Claim form.

[22]     You have provided letters from your mother and sister in Jamaica who had firsthand knowledge of your abusive relationship with [XXX] and who corroborated the abuse.

[23]     Your mother corroborated [XXX] continuing threats to harm you while you have been in Canada.

[24]     Although you did not provide a letter from your son, who is in Ottawa, Canada, and who also experienced abuse from [XXX], and witnessed [XXX] being abusive to you, you provided a reasonable explanation for not requesting one from him.

[25]     Although the Panel was concerned that you returned to Jamaica from Canada and the United States on three occasions, you have explained that you were fearful of increasing [XXX] anger towards you and that you were unaware of the option of making a refugee or asylum claim.

[26]     The Panel has considered your explanations in light of the Chairperson’s Guidelines and in the context of your profile as a woman in a longstanding abusive relationship and finds that your explanations are adequate.

[27]     I find that you have established on a balance of probabilities that you were in an abusive relationship in Jamaica with [XXX] for nearly five years.

[28]     Although you wanted to leave him, you were unsuccessful the one time you tried and that resulted in a serious injury to yourself.

[29]     I find that he continues to be a risk to you if you were to return to Jamaica, as he has continued to threaten to harm you through your parents.

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

[31]     I also find, based on a review of the National Documentation Package, that your fear is objectively well founded.

[32]     The National Documentation Package indicates that domestic violence is a serious and widespread problem in Jamaica.

[33]     According to one source:

[34]     “The incidence of violence against women in general and domestic violence in particular remains high. A number of factors continue to deter women from reporting and pursuing sexual offence cases, including victims’ and witnesses’ fear of reprisals and retaliation and delays in the judicial process.

[35]     Cases of gender-based violence also remain underreported due to the prevalence of social and cultural norms.

[36]     Legal protections for women are poorly enforced.

[37]     There are not currently any government-funded shelters, only one shelter operated by a non­governmental organization, and insufficient funding for police investigations or supportive services for victims.

[38]     Although there are a number of government plans and measures aimed at addressing gender­ based violence, including a national strategy plan of action, there is no current information on their operational effectiveness.”

[39]     I find that you haver a well-founded fear of persecution in Jamaica.

State Protection

[40]     States are presumed to be capable of protecting their own citizens, except in situations where the state is in a state of complete breakdown.

[41]     You have testified that you did not seek police assistance as the police are unable to effectively assist women in your country and you are afraid that if the police got involved, it would make the situation worse for you.

[42]     You are aware of a woman similarly situated in Jamaica who did seek police assistance and ended up being killed.

[42]     The Panel finds that you are unable to obtain adequate state protection based on the country conditions described in the National Documentation Package.

[43]     According to one source:

[44]     “There remains some challenges, including a reported lack of understanding and insufficient training by law enforcement personnel, such as police officers and judges.

[45]     Furthermore, the delayed judicial process and fear of reprisals continue to serve as a deterrent to reporting and prosecution.”

[46]     The country information is clear and convincing evidence that rebuts the presumption that adequate state protection is available to you in Jamaica.

[47]     The Panel therefore finds on a balance of probabilities that you cannot access adequate state protection in Jamaica.

Internal Flight Alternative

[48]     The Panel has also considered whether a viable internal flight alternative exists for you.

[49]     The country conditions described above exist throughout the country.

[50]     You testified that you believe Jamaica to be a small country and that XXXX would be able to find you if you returned, possibly through your work as a XXXX.

[51]     Furthermore, XXXX works as a XXXX, which means he moves about the country in the course of his work, thereby increasing the chances that he may locate you.

[52]     Based on the country conditions, the size of the country, and the agent of persecution’s profile, I find that there is a serious possibility of persecution for you throughout Jamaica and therefore I find that there is no viable internal flight alternative available to you.

Conclusion

[53]     Based on the totality of the evidence, I find you to be a Convention refugee and I accept your claim.

– – – DECISION CONCLUDED – – –

Categories
All Countries Jamaica

2019 RLLR 68

Citation: 2019 RLLR 68
Tribunal: Refugee Protection Division
Date of Decision: August 8, 2019
Panel: L. Bonhomme
Counsel for the claimant(s): Robin Edoh
Country: Jamaica
RPD Number: TB8-24644
ATIP Number: A-2020-01274
ATIP Pages: 000192-000198

REASONS FOR DECISION

[1]       The claimant, [XXX], is seeking refugee protection pursuant toss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

Determination

[2]       The panel finds the claimant to be a Convention refugee on the grounds of his membership in a particular social group, namely homosexual or bisexual males in Jamaica.

Allegations

[3]       The details of the claimant’s allegations are set out in the claimant’s Basis of Claim Form (BOC).ii In short, the claimant alleges that he was rejected, called names, mistreated and threatened with death in Jamaica because he is homosexual or bisexual.

[4]       The claimant is fearful of returning to Jamaica as he fears he will be killed or seriously harmed by his own family members, the family of the mothers of his children and the community at large.

[5]       The claimant alleges that there is not adequate state protection available to him or an internal flight alternative in Jamaica.

Identity

[6]       The claimant’s personal identity as a citizen of Jamaica has been established by the claimant’s testimony and the certified true copy of his Jamaica passport and Canadian visa on file.iii

[7]       The panel finds on a balance of probabilities that the claimant is who he says he is and that the country of reference is Jamaica.

Nexus

[8]       As the panel has found that there is a nexus between what the claimant fears and one of the five convention grounds, namely membership in a particular social group, a homosexual or bisexual male, the panel has only assessed the claim under s.96 of the IRPA.

Analysis

[9]       The determinative issues in this claim are credibility, state protection and internal flight alternative. In making this assessment, the panel has considered all the evidence, including the oral testimony, documentary evidence entered as exhibits and counsel’s submissions as well as the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.iv

[10]     The claimant testified and although he was hesitant at times and had difficulty expressing himself, the claimant appeared to be nervous and was not sophisticated. The panel took into account that although the claimant had completed secondary school it was not without some struggles, he was living in the bush for the latter part of his teenage years and he has only worked as a [XXX] for the past twenty plus years.

[11]     The claimant did not embellish his answers and was frank in sharing information that was not flattering or helpful to his claim, such as when he shared that he had married a woman in Canada in order to acquire status. This marriage lasted only one month due to the claimant’s inability to maintain the façade which was consistent with his previous relationships with women in Jamaica. The claimant’s testimony was internally consistent and he elaborated on matters only briefly summarized in the BOC.

[12]     The panel did have concerns that important details with respect to the material elements of the claim were missing from the BOC. The BOC did not contain any information about the claimant’s only relationship of import with a male which occurred in his teenage years. In his testimony, the claimant described how he was friends with [XXX] in high school and they enjoyed spending lots of time together. They were also attracted to one another and engaged in sexual activity. On one (and the last) occasion, they were caught by peers being intimate in a hut during a football game. Word spread to the rest of the community and to his father. The claimant’s father severely beat him and kicked him out of the house. [XXX] moved to Kingston. After that, the community continued to harm, harass and threaten the claimant as it was believed that he was homosexual. The claimant provided details of how he was treated, including the derogatory names he was called; being stoned; the crops in his field being destroyed; the windows of his home being broken; and being threatened to be set on fire with a tire. When the claimant was asked by the panel why this significant relationship and details of the ensuing treatment were omitted from his BOC, the claimant responded that he was scared to remember what he had been through. The panel accepts this explanation as the claimant appeared to be genuinely upset and affected by describing these events.

[13]     Although the claimant was unable to explain whether his sexual orientation was homosexual or bisexual, the panel does not draw any conclusions from this inability because the consequences to the claimant in Jamaica would be the same either way. The claimant convincingly described his physical attraction to men. As well, the claimant was able to convincingly describe his history of relationships with women. He explained that it was at his mother’s urging that he engaged in a series of relationships with women who became pregnant in order to cover up his attraction to males and to overcome the damage to his reputation caused by being caught in the hut with [XXX]. The claimant admitted that he was not always able to have sex with the women and he usually did not have feelings for the women inevitably leading to the end of these relationships. He did admit that he was somewhat attracted to and did have some feelings for the first woman.

[14]     The claimant submitted a letter from his sister in Jamaica. This letter corroborated the claimant’s allegation that he was believed by his family and the community to be homosexual. The claimant also submitted a letter confirming that he has reached out to the 519 Centre in Toronto, an organization for the LGBTQ community. The claimant testified that he was planning to participate in programming through the centre. He has connected with a male in Toronto who he is interested in but that relationship is moving slowly. The claimant was shy to share the individual’s name but was able to describe how they met and their tentative communications. The claimant explained that he was scared by what had happened to him in the past.

[15]     The claimant has established on a balance of probabilities that he is a homosexual or bisexual male. The claimant has also established on a balance of probabilities that his family and community in Jamaica are aware of his sexual orientation and that he has been harmed as a result.

[16]     Given the credible testimony by the claimant on issues going to the core of the claim as well as the corroborating documentation cited above, the panel believes what the claimant has alleged in support of his claim and finds that his subjective fear of persecution on the basis of his sexual orientation is established, on a balance of probabilities.

Objective Basis

[17]     A review of the national documentation packagev indicates that there is a climate of homophobia and violence throughout Jamaica. The documents state that homosexual acts between males are criminalized in Jamaica. While the laws are not enforced, there is a climate of hostility toward sexual minorities. Some types of Jamaican music propagate homophobia and politicians and Church leaders have made negative statements toward sexual minorities. Several sources report that sexual minorities are the target of violence in Jamaica and violence against sexual minorities is widespread and that sexual minorities may also be the targets of mob violence. 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. Gay men are often reluctant to report incidents for fear of their well-being and may be extorted based on their sexual identity.

[18]     Based on the claimant’s personal experiences and the documentary evidence cited above, the panel finds the claimant’s fear of return to Jamaica to have an objective basis. The claimant has established a well-founded fear of persecution in Jamaica.

State protection

[19]     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.

[20]     The claimant alleged and the panel believes that he did not seek police protection because the police themselves do not protect or assist homosexuals because they are homophobic like the rest of the community.

[21]     The panel finds the claimant’s failure to seek state protection was reasonable given the country conditions described in the national documentation package and described above. 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.vi

[22]     The country information is clear and convincing evidence that rebuts the presumption that adequate state protection is available to the claimant in Jamaica. The panel therefore finds on a balance of probabilities that the claimant cannot access adequate state protection in Jamaica.

Internal Flight Alternative

[23]     The panel has also considered whether a viable internal flight alternative exists for the claimant. The country conditions described above exist throughout the country.vii

[24]     The panel finds that there is a serious possibility of persecution for the claimant throughout Jamaica and therefore finds that there is no viable internal flight alternative.

Conclusion

[25]     Based on the totality of the evidence, the panel finds the claimant to be a Convention refugee and the claim is accepted.

(signed)           L. Bonhomme

August 8, 2019

i Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended.
ii Exhibit 2: Basis of Claim Form.
iii Exhibit 1: Package of information from the referring CBSA/CIC.
iv Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017.
v Exhibit 3: National Documentation Package for Jamaica version 30 April 2019: items 1.6, 2.1, 2.2, 2.4, 2.5, 6.
vi Supra.
vii Supra.

Categories
All Countries Colombia

2019 RLLR 67

Citation: 2019 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: October 7, 2019
Panel: K. Fainbloom
Counsel for the claimant(s): Dariusz Wroblewski
Country: Colombia
RPD Number: TB8-15262
Associated RPD Number(s): TB8-15317, TB8-15261
ATIP Number: A-2020-01274
ATIP Pages: 000189-000191

DECISION

[1]       MEMBER: So, these are the reasons for the positive determination of the refugee claims of [XXX], her husband [XXX] and their daughters [XXX].

[2]       The claimants are citizens of Colombia and they claim refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       Their allegations are contained in the narrative of the principal claimant’s Basis of Claim form. I’m going to briefly summary those allegations.

[4]       The, the principal claimant is a [XXX]. She describes how she and her family have been affected by the civil war in Colombia. Her brother was killed in [XXX] of 2003. She met the other adult claimant and they were married in 2004. Their daughter was born in 2008. She graduated in 2011 and began to work and at the same time, she began to be involved in community work. Assisting people who have been displaced by the civil war.

[5]       So on weekends, she would work with members of the community action boards, assisting people displaced by the conflict who had come to Medellin. All was going well until her, her work came to the attention of the AGC. And on [XXX], 2017 she received a note from this organization at her home, threatening her and telling her that she must quit her work or she would pay the consequences.

[6]       After, she reported this to the appropriate authorities including her employer. On [XXX], she was threatened by a man on a, on a motorcycle. And fearing further problems, they decided to leave Medellin and they relocated to Bogotá.

[7]       However, on [XXX] in Bogotá she was again a, a, attacked and followed. So they again relocated. The family now relocated to Cack-, Cúcuta. I have trouble with that one. However, there again there were problems. On [XXX], the principal claimant’s husband received a telephone call from someone searching, searching for them. And indicating that they knew where they were.

[8]       So, fearing for the lives the, the claimants fled Colombia and made their way to Canada and made refugee claims upon arriving.

[9]       Having considered the totality of the evidence before me, I find the claimants to be Convention refugees. find this is due to their political, an imput-, an imputed political opinion. On the part of the agents of persecution in terms of the volunteer work the principal claimant was doing. As noted in the threatening letter received, her actions are seen as a, a political view of the, the AGC’s lost.

[10]     With respect to the claimants’ identities as nationals of Colombia, it’s established by the documents on file which include copies of their passports.

[11]     As to the credibility of the allegations, I have no concerns. Firstly, the claimants provided their evidence in a credible detailed and what appeared to be spontaneous fashion.

[12]     The responses given in an oral testimony were con-, consistent with what’s been stated in written form. The claimants were appropriately emotional in describing some of the difficulties they faced in Colombia. Their allegations are consistent with country condition reports as to what might happen in Colombia if you come to the attention of the wrong people.

[13]     And I would note the presence of a number of fairly strong corroborative documents. This includes letters corroborating the principal claimant’s volunteer work. The letter from the lawyer who assisted in her work and who was aware of the threatening calls she had received. There’s a copy of the threatening letter itself. There are a number of supportive letters including from the principal claimant’s sister who provided her and her family refuge in, in [XXX] of 2018. There’s also a letter from their friend who provided the shelter for this family while they were in the other city. There’s a letter from, there’s a letter from the retired police officer who describes the assistance and suggestions he made to the family.

[14]     There are some references in the letters to searches that are ongoing in Colombia for people looking for the principal claimant. And there’s also documents indicating how the principal claimant suffered from [XXX] as a result of, of having these threats uttered against her. Documents showing the, the, the counselling she received in Colombia and the counselling she’s receiving in, in Canada as well. And finally, there are the police reports.

[15]     And so, in consideration of these documents, in consideration of the quality of the testimony, I find on the balance of probabilities the allegations to be true.

[16]     Given that I accept the allegations to be true, the co-, country condition documents before me indicate there’s an objective basis to their, claimants’ fear of returning to Colombia.

[17]     The documents note the existence of threats, of violence and incidents of violence against human right defenders, social leaders, educators and, and so on. People such as the claimant who are providing assistance to those who have been devastated by the civil conflict. According to a recent U.N. report, there were 163 verified killings of social leaders and human rights defenders since November 2016.

[18]     So, in light of the country condition documentation, I find there’s an objective basis for their fear of returning. Given that they’ve approached the author-, the appropriate authorities on a number of occasions and not received adequate protection, I find the claimants have rebutted the presumption of adequate state protection. And I also see that as a result of their movements in various parts of the countries and the fact that each time they moved, they were still targeted and harassed.

[19]     There is no viable internal flight alternative available to the claimants. And I find that if they relocated to any part of Colombia they would suffer a serious possibility of persecution.

[20]     So, for all these reasons, I conclude the claimants are Convention refugees. And I therefore accept their claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Colombia

2019 RLLR 66

Citation: 2019 RLLR 66
Tribunal: Refugee Protection Division
Date of Decision: August 26, 2019
Panel: K. Fainbloom
Counsel for the claimant(s): Terry S Guerriero
Country: Colombia
RPD Number: TB8-14474
Associated RPD Number(s): TB8-14483, TB8-14467
ATIP Number: A-2020-01274
ATIP Pages: 000185-000188

DECISION

[1]       MEMBER: These are the reasons in the decision, the positive decision for the refugee claims of [XXX], his spouse [XXX] and [XXX]’s mother [XXX].

[2]       The citizens are, the claimant’s are citizens of Columbia they claim refugee protection pursuant Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claimant’s referred jointly pursuant to Rule 55. The details of the claimant’s allegations are set in their basis of claim form narratives and I’m going to briefly summarize that narrative.

[4]        [XXX] the principal claimant and his partner [XXX] are a homosexual couple, active in the LGBT community in Columbia. They owned a [XXX] and lived above the business.

[5]       On [XXX] 2017 the business was targeted by homophobic graffiti. They went to the police, the policeman’s responses this is what happens when you’re a fagot. On [XXX] 2018 the principal claimant was accosted by a man who put a gun to his waist and told him that he did not want to see the principal claimant or his partner again or he would kill them. He said they knew where he lived. The principal claimant made a denouncement to the attorney general’s office on [XXX] 2018.

[6]       On [XXX] 2018 the principal claimant and his partner were accosted by the same man. The principal claimant and his partner decided they would leave Columbia with their mother. They left on [XXX] 2018 and they are afraid to return to Columbia.

[7]       Having considered the totality of the evidence before me I find the claimant’s to be Convention refugees pursuant to Section 96 of IRPA.

[8]       The nexus or connection to the definition for the two male claimants is their sexual orientation. The connection for the female claimant is her connection to her son, her connection to this family. So because of that family connection she’s connected to the definition.

[9]       With respect to their identities as nationals of Columbia this is established by the documents on file which include copies of their passports.

[10]     As to the credibility of the claimant’s allegations I have no concerns. At First they were provide their evidence in what I appeared to be a spontaneous, detailed fashion. The evidence they provided today in oral testimony was consistent with what’s been provided in written form, their allegations are consistent with the situation for sexual minorities n Columbia and finally they’ve done an admiral job of corroborating their allegations.

[11]     I’ll refer to some of the documents in Exhibit 4 these would include the two denunciations made by the principal claimant on [XXX] and [XXX]. There’s provided proof of their involvement with the foundation, for both male claimants also a reference in that letter to their receiving death threats. There are a number of corroborative statements made by siblings of the principal claimant as well as the employee hired by the claimant’s to run the [XXX]. There’s a certificate of their involvement in the LGBT community in Canada and there’s also a photograph of the [XXX] and the graffiti that was put on the [XXX] in [XXX] 2017.

[12]     So in consideration of all those factors I find on the balance of probabilities their allegations to be true, given that I accept their allegations I find that there’s sufficient objective evidence for me to find that they’re objective, positive reasons why they should fear returning to Columbia.

[13]     The documents note that in that the mistreatment of sexual minorities in Columbia has actually worsened significantly in recent years. The documents contained in Exhibit 3 including the Item at 6.1 and 6.5 refer to LGBTI person’s being subjected to acts of violence aimed at eliminating their sexual orientation and that they face sexual violence, forced displacement as well as homicide.

[14]     The document at 6.5 notes that reports of violence and discrimination against Columbia’s LGBT community have been steadily increasing in recent years and notes that discrimination is prevalent throughout Columbia and society even prevalent in high level Columbian politicians.

[15]     The documents still has been particularly extreme in Caribbean coastal regions where LGBTU rights, defenders have received death threats in which they have been declared military targets by various armed groups. At in the document provided by counsel Exhibit 4 the last Item at Page 49 makes the following statement; Columbia’s made no progress in stopping killing of lesbians, gay, bisexual and transgender people as new research showed more than one hundred were killed last year despite the overall fall in the murder rate.

[16]     So in consideration of those conditions I find that there’s an objective basis to their fear of returning to Columbia.

[17]     I’ve considered the issue of whether adequate state protection would be provided, I find in this situation it is not been provided and would not be reasonably expected to be provided should they return.

[18]     Firstly I would note the country conditions as just described the government is has not been effectively providing protection to sexual minorities that are subject to threats and violence. I would note that while the Columbian state has been putting some effort into improving state protection particularly since the peace accord with FARC the state’s ability to actually provide protection is highly limited. This is partly due to lack of presence and capacity; it’s partly due to issues of corruption as there’s information of corruption and complicity by many local, regional authorities.

[19]     The documents also note that paramilitary groups are known to infiltrate official institutions and forge alliances with public servants. Notwithstanding these the country conditions as I’ve just described the subjective experience of this couple is that they have gone to the authorities the first time they went they were insulted, when they called the authorities for assistance there was no answer and times they went to make denunciations to the attorney general’s office they were not given adequate protection.

[20]     So I find that adequate protection would not be available to these claimants. I find the issue I’ve considered is whether there might be a viable internal flight alternative available. I find that there would not be. I think the [XXX] the principal claimant’s opinion with respect to the relocation within Columbia not being feasible is reasonable and supported by the documents before me.

[21]     The more you get into rural areas of smaller cities you’re dealing with more (inaudible) prevalence of violence and threats against sexual minorities.

[22]     So I find that this couple would suffer persecution, the three claimants’ would suffer persecution anywhere in the country and that therefore there is no viable internal flight alternative available to the claimants.

[23]     In consideration of the totality of the evidence before me and the factors I’ve just reviewed I find the claimant’s to be Convention refugees. The division therefore accepts your claims.

[24]     CLAIMANT: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Bangladesh

2019 RLLR 65

Citation: 2019 RLLR 65
Tribunal: Refugee Protection Division
Date of Decision: April 1, 2019
Panel: S. Shaw
Counsel for the claimant(s): Md Wazir Hossain
Country: Bangladesh
RPD Number: TB8-14360
ATIP Number: A-2020-01274
ATIP Pages: 000180-000184

DECISION

[1]       Member: This is the decision of the refugee protection claim made by Mr. [XXX] file number TB8-14360.

[2]       At this point the panel has considered the claimant’s testimony and the other evidence in this case and is ready to render an oral decision.

[3]       The claimant is a citizen of Bangladesh and is claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       After review the panel finds that the claimant is a Convention refugee for the following reasons. Specifically, the claimant has established a serious possibility of persecution based on a Convention ground of perceived political opinion. Regarding the other issues, specifically that of religion of a Convention ground, the panel did not consider that a key issue in this case.

[5]       The claimant’s allegations are set out in the Basis of Claim Form and the amendments and further supplemented by testimony and supporting documents.

[6]       In summary, the claimant has alleged that he fears persecution at the hands of the Awami League who is the current ruling party in Bangladesh and the Jamaat-ul-Mujahideen Bangladesh herein called the JMB, specifically, because of his perceived political opinion of being anti-Awami League and because of religious beliefs which are different from the JMB Islamic extremist views.

[7]       The claimant alleges that he was targeted because of his social work and his business activities. The claimant is a self-employed entrepreneur and founded [XXX] organizations in Bangladesh.

[8]       He alleges that his fears began in [XXX] of 2015 when he was assaulted by Awami League members following a protest rally he organized against Awami League members which included Monir the mayor of Bhola City. Threats to the claimant continued until [XXX] of 2018.

[9]       The claimant alleges that he was assaulted in 2016 because he refused to pay money to fund the Awami League’s Independence Day activities.

[10]     The Awami League visited his home and threatened him to stop protesting against Monir and the Awami League and he was again attacked in [XXX] of 2016 which led to medical treatment at the local medical clinic.

[11]     In [XXX] of 2017 the Awami League and associates demanded that the claimant sell his land to the Awami League, and in [XXX] of 2018 the JMB visited the claimant’s office, ransacked it, and threatened him with death.

[12]     In [XXX] of 2018 two Islamic leaders also visited the claimant’s [XXX] and assaulted his spouse and two other female employees.

[13]     Further, in [XXX] of 2018 the claimant was again attacked by Awami League members causing him to be hospitalized for [XXX] days, and on [XXX], 2018 three armed Awami League members tried to abduct the claimant and his two daughters.

[14]     This incident prompted the claimant’s decision to flee Bangladesh and he left Bangladesh on [XXX], 2018, arriving in Canada [XXX], 2018, and claiming refugee protection soon after.

[15]     With regards to the analysis, the panel considered all of the evidence submitted and determined the following.

[16]     On a balance of probabilities, the claimant’s identity as a citizen of Bangladesh is established by testimony and also by a certified true photocopy of his passport and the claimant’s national identity card and his Bangladesh Road Transport Authority card. Both of which were submitted at the hearing as oral … as original documents at the hearing. The panel finds no reason to doubt the veracity of these documents.

[17]     With regard to credibility, testimony given under oath is presumed to be true unless there is a valid reason to doubt its truthfulness. As such, the panel has considered the claimant’s testimony as a whole and find the claimant to be a credible witness and believe what he has alleged relating to the issue of his perceived political opinion.

[18]     The panel finds that the claimant’s testimony was generally straightforward with regard to central elements of this case, and any inconsistencies, contradictions or omissions that were considered central to this claim was adequately explained.

[19]     Specifically, the panel asked why the claimant returned to Bangladesh prior to his final … fleeing from Bangladesh in [XXX] of 2015. Sorry, [XXX] of 2018, given that his fears began in [XXX] of 2015. The panel notes that the claimant had returned to Bangladesh prior to the [XXX] 2018 final reason when he left.

[20]     After review, the panel accepts that the claimant’s final crystalizing fear did not occur until [XXX] 2018 and [XXX] 2018, and those two incidents in 2018 were the incidents that crystalized his decision to finally leave Bangladesh in fear of his safety. The panel accept this as reasonable considering the circumstances.

[21]     In addition, as previously indicated with regards to the claimant’s allegations of fear of the JMB Islamic extremist group, the panel did not consider this the key issue of this claim since the claimant had not met or been threatened personally by JMB extremists, and since the JMB … or fear was related to the [XXX] that the claimant ran the panel notes that this [XXX] was closed since [XXX] of 2018 and as such, the … the panel is of the view that this group JMB did not pose a significant fear to this claimant and hence was not the key fear of this particular claim.

[22]     With regard to documentation relating to the perceived political opinion and the fear that arise from that, the claimant provided the following corroborating documents as evidence. Specifically, as noted in Exhibit 5 the claimant’s tax documents and business documents, as well as hospital and doctor’s letters in … and discharge summary report from the hospital. Both of which indicate and diagnose a physical assault that needed emergency attention and multiple deep lacerations that the claimant sustained.

[23]     The panel also considered the corroborating documents of a number of police complaints, general diaries, deposition, and court order, as well as an arrest warrant, and a court case filed against the claimant’s perpetrators.

[24]     Therefore, after review, the panel is satisfied, on a balance of probabilities, that the claimant’s allegations are credible and further that the claimant has established a subjective fear of persecution if returned to Bangladesh.

[25]     With regards to the objective basis of this claim, the panel finds that this claimant’s allegations are corroborated by the country conditions as noted in the National Documentation Package and counsel’s disclosure package.

[26]     The panel accepts that there is an objective basis for this claim, specifically as noted in the NDP Items 1.1(0), 4.1(3), 2.1, and 1.5. These country condition documents confirm that the Awami League is currently by far the largest political force in Bangladesh after recent elections and that the Awami League has consolidated its power which has led international and domestic critics to accuse the Awami League of being authoritarian and heavy handed in its approach to any opposition or anti-government individuals that it is … that it views against the government.

[27]     Further, the NDP shows that Bangladesh authorities increasingly use harsh measures including abuse and harassment, and that the Awami League Government is increasingly using imprisonment detention without trial and show trials to silence opposition.

[28]     With regards to State protection, the panel finds that the claimant has rebutted the presumption of adequate State protection with clear and convincing evidence that adequate State protection is not available to this claimant and is not reasonably forthcoming in this case.

[29]     The panel notes the claimant’s testimony that he has attempted to file complaints in the past, specifically in [XXX] of 2016 which would … sorry. Specifically, in [XXX] of 2018 but it was again refused, and also the panel notes that there is country conditions that specifically speak to the anti­ corruption efforts of the international community has been weakened because of the Awami League’s politicizing of law enforcement agencies and the judicial process.

[30]     In addition, Item 2.3 of the NDP also indicates that there’s a concern which is on the increase about the growing interference by government in the judiciary process, and that Item 1.1(7) indicates from the United States State Department report which indicates that public has a deep distrust of police and security services which has deterred many Bangladeshis from approaching police for assistance or reporting criminal incidents.

[31]     With regards to internal flight alternative, the panel has also considered whether a viable internal flight alternative exits for this claimant. After review, the panel is satisfied that there’s no viable internal flight alternative because this claimant would face a serious possibility of persecution throughout Bangladesh considering that some of the agents of persecution are the Awami League and its members which are integrally linked to the ruling government.

[32]     The panel notes that the claimant and his family did attempt to internally relocate by going and staying at their parent’s home, as in the claimant’s in-laws home in [XXX](sic) District which a [XXX] kilometres away from the claimant’s home in Dhaka. However, the claimant was found one week later by the Awami League, and also the claimant again relocated to the [XXX] Region in [XXX] of 2018, but again was found by the Awami League, and the Gibot(ph) League.

[33]     After review and based on the profile of the agents of persecution and their affiliation with the ruling government who has control throughout the country of Bangladesh, the panel finds that this claimant would face persecution throughout the country of Bangladesh. Therefore, the panel is satisfied that there’s no viable internal flight alternative available to this claimant.

[34]     In conclusion based on the totality of the evidence and the previously mentioned analysis the panel finds that the claimant has a well-founded fear of persecution based on the perceived political opinion. Therefore, this panel concludes that this claimant is a Convention refugee as defined by Section 96 of the Immigration and Refugee Protection Act. As such, the panel accepts this claim for refugee protection in Canada.

[35]     That is the end of the decision and its reasons.

[36]     This hearing is now concluded. That brings me to the end of the hearing. We are now off record. Thank you all for attending. Interpreter and everyone, thank you. Thank you.

———- REASONS CONCLUDED ———-