Categories
All Countries Jordan

2022 RLLR 75

Citation: 2022 RLLR 75
Tribunal: Refugee Protection Division
Date of Decision: July 18, 2022
Panel: Kevin Cantor
Counsel for the Claimant(s): Sherin Aboudaba Besaiso
Country: Jordan
RPD Number: TC1-19242
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

DECISION

[1]       MEMBER:    So this is a decision of the Refugee Protection Division for the claimant XXXX XXXX XXXX XXXX XXXX and his file number is TC1-19242.

[2]       He is a 26-year-old male, he is claiming to be a citizen of Jordan.  He is seeking refugee protection in Canada pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act.  I have considered your testimony and the other evidence in the case and I am ready to render a decision in this matter orally.  The written decision will be sent to you shortly and may be amended for spelling and grammar purposes.

[3]       Having considered all the evidence brought forward in this matter, I find that you are a person in need of protection pursuant to Section 97 (1) of the Immigration and Refugee Protection Act and my reasons are as follows:

[4]       I think he understood that?

[5]       INTERPRETER:      Yes and I gave him the thumbs up as well and right now he is emotional.

[6]       MEMBER:    Alright, yes.

[7]       INTERPRETER:      Thank you.

[8]       MEMBER:    So your allegations, Sir, are fully set out in your Basis of Claim Form filed at Exhibit 2.  In summary, you allege that you are a Jordanian citizen of Palestinian origin fearing tribal law sanction revenge killing because you had unlawful and unauthorised sexual relations with your employer’s daughter XXXX (ph), your employer belongs to a large powerful tribe in Jordan, the A-L-B-T-A-Y-N-E-H tribe.

[9]       You indicated that you met the daughter XXXX (ph) at your work place.  She was your boss’ daughter, she was also studying XXXX XXXX which you had studied and the father asked you to give her a tour of the workplace and you began a personal relationship and fell in love and you had a secret relationship you indicated because as an individual of Palestinian origin and not belonging to any tribe you and your girlfriend believed that her father would not be receptive to your relationship given your various statures in Jordan.

[10]     You indicated that after spending some time together on a trip to the Dead Sea you and XXXX wound up together having premarital relations which is heavily forbidden within the Jordanian culture.

[11]     About a month after this in XXXX 2021 XXXX (ph) took a pregnancy test and advised you that you, that she was pregnant.  You allege that the agent of harm, the father and the tribe attacked your family home causing property damage and that later a bloodshed declaration or decree was issued against you.

[12]     Your personal and national identity as a citizen of Jordan has been established on a balance of probabilities by your credible testimony and a copy of your Jordanian passport filed in Exhibit 1 of the consolidated list of documents.

[13]     You have also provided University transcripts, copies of your various Degrees and that is sufficient.

[14]     With regard to nexus, you face a revenge killing threat from your agents of harm in Jordan because of your unauthorised sexual relationship with Mr. XXXX XXXX XXXX daughter.

[15]     Threats of harm or death driven by family in tribal vendetta or revenge is not one of the five Convention grounds set under 96, under Section 96 of the Immigration and Refugee Protection Act therefore I have assessed your claim under Section 97 (1) of the Immigration and Refugee Protection Act.

[16]     Credibility was a key issue in this claim, the Court rules in Maldonado v/s Canada is that sworn testimony of a claimant is presumed to be true unless there is a valid reason to doubt its truthfulness.

[17]     I have found you to be a credible witness.  You testified in a straightforward and spontaneous manner, therefore I believe what you have alleged in your Basis of Claim Form and testified to in the hearing orally.  You provided numerous details indicating your background, how you met XXXX (ph) how the two of your commenced a relationship, how you fell in love, how you were afraid to seek her hand in marriage for fear of your Palestinian background.

[18]     You also indicated that after the father learned of your unauthorised pre-marital sexual relationship, he threatened you physically and a bloodshed declaration was issued against you which has been filed as part of your disclosure.

[19]     You further testified that even though you asked for XXXX hand in marriage you were rebuffed by the father.

[20]     You indicated that after you reached Canada the XXXX which is spelled XXXX XXXX XXXX XXXX XXXX sorry that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX passed the decree on XXXX XXXX XXXX 2021, where they decided to have your bloodshed that is to kill you due to the fact that you had a unauthorised relationship with their daughter and brought shame to the family.

[21]     You clarified that your family members are safe because they are not personally targeted, that the agents of harm are determined to kill you in accordance with Jordanian tribal custom and as previously stated, the core aspect of your allegatiwon and oral testimony were also corroborated by your personal documentation which has been entered into evidence.

[22]     You provided both an affidavit from your father detailing the problems and the issues you would have, you also provided an affidavit from your aunt who you went to live in hiding prior to your departure from Jordan.

[23]     You also provided a copy of the tribal decision which is found at…

[24]     INTERPRETER:      Any help Mr. Member?

[25]     MEMBER:    No it’s fine the tribal decision which is found at Exhibit 6 and again that confirms the situation and the reasons behind this bloodshed declaration.

[26]     On a balance of probabilities, I find because of your unauthorised relationship with XXXX (ph) and the threats of death at the hands of your agents of harm that you have continued to receive threats of death at the hands of your agents of harm who have vowed to kill you in revenge in accordance with Jordanian tribal law and custom.

[27]     Based upon the evidence provided, I find that on a balance of probabilities that you have established through your credible testimony and compelling documents the existence of a personalised forward looking risk which would not generally be faced by other persons in Jordan.

[28]     On a balance of probabilities, I find you to be a credible witness and accept your oral evidence concerning the fear that you face in Jordan.  I find that you have established your obligations and they are consistent with the country condition documents.

[29]     Your allegations are generally consistent with the available objective evidence about conditions in Jordan.  The current national documentation package from Jordan of this year, specifically Item 5.10 at Page 1 makes it clear that Jordan is a very tribal based society with very strong tribal connections and traditions and that the law in Jordan, both civil and criminal is not separate but intertwined with these tribal traditions.

[30]     The NDP also confirmed that family violence and revenge is widespread in Jordan.  It records that the notions of tribe and tribal law remains strong in Jordan, this is contained in NDP Item 5.10, Jordanian tribal law permits murder as revenge under various legal systems.

[31]     In addition to the objective evidence found within the NDP Item 9.1 at Page 4 further indicates that revenge including by means of murder is part of tribal practices in Jordan.

[32]     It is further clarified that although revenge is criminalised in Jordan because it does not constitute a right by virtue of which the avenger is granted any legal protection or special treatment.  The criminalisation does not negate the fact that such crimes continue to be committed in Jordan, the same item of the NDP 5.10 at Page 7 states that tribal affiliations are inexorably tied with identity from many Jordanians from the national to the village level and that tribal identity and loyalty play a strong role in governance and dispute resolution whenever blood and honour crimes occur.

[33]     Item 9.1 of the NDP at Page 1 indicates that tribal consideration or dispute resolution has come to form part of the Jordanian culture and custom despite the fact that it no longer constitutes part of the Jordanian legal system.

[34]     You did indicate that your father tried to reach out to the tribe to see if resolution could be made but he was rebuffed.

[35]     NDP Item 1.4 indicates that the central notation of tribal honour or S-H-A-R-A-F remains important to all aspects of life in Jordan and the importance of tribal honour manifests itself and each man feeling responsible for maintaining a tribe reputation for being resolute in rectifying each and every infraction of his rights.

[36]     From the tribal perspective, if a group does not do this, they may be known as weak and then become, and then they can be known as easy prey in the desert.  This is contained under NDP Item 1.4 at Page 23.

[37]     NDP Item 5.10 at Page 9 further indicates that the reputation size and associated power of the tribe, its importance as one tribe’s influence, as one tribe influences what quality of justice one received.

[38]     It says that revenge is a norm in Jordan whether the offense is intentional or accidental.

[39]     You have explained to me that you are Jordanian of a Palestinian origin and that you belong to no known tribe and that your family is not influential and very small.

[40]     I conclude that the claimant has established that the risk posed to him in Jordan from the family and the tribe, specifically the B-A-T-A-Y-N-E-H tribe is supported by this objective evidence.  Counsel also filed a lengthy article about the power of the Batayneh tribe in XXXX but also in other areas of Jordan and that they are quite involved within the Jordanian government and wield considerable influence.

[41]     Therefore the Panel finds that the objective evidence supports the claimant’s allegations that he faces a risk to his life or cruel and unusual treatment or punishment from his agent of harm in Jordan.

[42]     In terms of State protection, all States are presumed to be capable of protecting their citizens except where the State is in a state of complete breakdown.

[43]     To rebut the presumption of State protection, the claimant has to prove clear and convincing evidence of the State’s inability or unwillingness to put, to protect its citizens.

[44]     However, in certain circumstances it will be objectively unreasonable to expect claimants to do so.

[45]     Furthermore, protection available to claimants may not be adequate given their particular circumstances.

[46]     In this case, you testified that you did not report to the police the threats made against you because the authorities do not interfere in tribal related issues.

[47]     You further credibly explained that you could not rely on the police protection and that your loss of confidence in the police is further based on the fact that in Jordan, the State does not interfere in tribal related conflict and the police would do little to protect you.

[48]     Under Item 2.1 of the NDP, the US Department of State Country reports on human rights practices for 2020, it did indicate that although the law provides criminal penalties for officials inaction and corruption, the government does not implement the law effectively.

[49]     In fact, the NDP specifically states the tribal law permits the family or the tribe to whose honour has been violated to take revenge from the offender and the State does not interfere.

[50]     My review of the objective evidence states that the Jordanian police will stay out of tribal and family related issues.

[51]     The NDP Item 5.10 makes it clear that Jordan is a very tribal based society with strong tribal traditions and law in Jordan civil and criminal is not separate but intertwined with these tribal traditions.

[52]     It says that the authorities often believe family related disputes to the extended family and to the tribe to work out informally.

[53]     As such, I find on a balance of probabilities that the State will not be willing or that they will be unable to provide adequate protection to you if you return to Jordan.

[54]     Consequently, I am satisfied in this case that the presumption of State protection is rebutted on a balance of probabilities, State protection will not be available to you should you seek it again in Jordan.

[55]     With regard to internal flight alternative, I considered whether this would exist for you in Jordan.  I must assess whether there is any location in Jordan in which you could, in which you would not face a serious possibility of risk to life or whether it would be reasonable for you to move there.

[56]     You testified that Jordan is a small country and since your fear is tribal and family with regard to revenge, killing issue, it will not be possible for you to seek safety internally because those seeking to harm you can locate you anywhere through their nationally spread tribal network and that the presence of the B-A-T-A-Y-N-E-H members in government institutions will assess them.

[57]     I do not find that you would have a viable internal flight alternative in any city of Jordan.  I find that if you return to Jordan at some point, the agents of harm would learn where you are simply through family or travel connections.

[58]     From the totality of the evidence before me, I find that Jordan is not such a large populated country that you would be able to disappear into a crowd while still leaving a relatively normal life if you were to return there.

[59]     Therefore based on the evidence I find that it is unlikely you would be safe from your agents of harm in any proposed IFA.

[60]     Given the past actions of the agents of persecution the prevalence of tribal law and customs in Jordan I find that your agents of harm are motivated to find you anywhere in Jordan.

[61]     I find that you would face a serious risk to your life or risk of torture or unusual punishment or treatment if you were to relocate because your credible evidence supports that your agents of harm have the means and motivation to find you.  I will not proceed to the second prong of reasonableness.

[62]     Accordingly, I find there is no viable internal flight alternative available to you in Jordan.

[63]     In conclusion, based on the evidence before me I find that you would face a serious possibility of risk to your life, a risk of torture and unusual treatment anywhere in Jordan without adequate State protection or viable internal flight alternative.

[64]     Therefore I find you to be a person in need of protection pursuant to Section 97 of the Immigration and Refugee Protection Act and I accept your claim.

[65]     INTERPRETER:      Thank you Mr. Member.  Thank you very much.  I will be summarising everything you said and definitely when I receive also the decision I will go through it with the claimant so we are good and I think he understood some of the points already because he somehow understands part of English, not fully but at least partially he understands so thank you very much.

[66]     MEMBER:    Yes.  So I am going to just stop the recording and just I have a couple of words for the claimant.

[67]     INTERPRETER:      I would translate.

——— REASONS CONCLUDED ———

Categories
All Countries Mexico

2022 RLLR 59

Citation: 2022 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: November 21, 2022
Panel: Lesley Mason
Counsel for the Claimant(s): Arvin Afzali
Country: Mexico
RPD Number: TC2-18775
Associated RPD Number(s): TC2-18780
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1]       XXXX (the principle claimant), her common-law husband, XXXX (the associate claimant), and the daughter of the principle claimant, XXXX (the minor claimant), citizens of Mexico, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the IRPA)[1].

Allegations

[2]       The specifics of the claims are set out in the principle claimant’s Basis of Claim Form (BOC);[2] the following is a summary of her allegations.

[3]       The principal claimant’s mother, XXXX, worked as a XXXX in the XXXX of the State of Mexico. In 2016 the mother learned that XXXX pesos had been stolen from the judiciary’s bank account and placed in accounts unrelated to the judiciary department. On XXXX, 2016, when XXXX was murdered, the principle claimant’s mother was told by government authorities and the police to keep the situation quiet. On XXXX 2016 the principle claimant’s mother was physically assaulted by two men who identified themselves as members of La Familia Michoacana. The men advised the principle claimant’s mother that the government worked for them. On XXXX 2019 a young man was assassinated in front of the home of the principle claimant’ s mother. Police did not respond when they were called. Months later, while in a car, the principle claimant’ s mother and her partner where shot at which caused the mother to XXXX. The principle claimant’s mother fled to Canada where her claim for refugee protection was accepted on February 2, 2021.

[4]       After her mother left the country, the principle claimant moved from her mother’s home to the home of an aunt. Beginning in XXXX 2019 the principle claimant became aware of two men appearing in her area. By XXXX 2020, the principle claimant saw the same two men almost everyday. On a few occasions the principle claimant and associate claimant saw one of the two men following them while they were in their car.

[5]       On XXXX, 2020 the claimants relocated to the home of the principle claimant’s mother

because of a family dispute with the principle claimant’s aunt. Shortly thereafter, a neighbour informed the principle claimant that a stranger had been inquiring about her mother. The principle claimant began to notice that she was again being tailed.

[6]       On XXXX 2020 the principle claimant learned she was pregnant. On XXXX, 2021 the principle claimant was physically assaulted at her home by two men who were looking for her mother. The men threatened to kill the principle claimant if she did not disdose the whereabouts of her mother. As a result of the assault, the principle claimant XXXX. When the associate claimant attempted to report the assault of XXXX, 2021 on the principle claimant, the authorities refused to accept their complaint because the attackers could not be identified. The claimants moved to the home of the associate claimant’s parents. Within a few days, two men began to tail the claimants. On  XXXX 2021, while driving in the city of XXXX 40 minutes from home, the claimants were followed. Subsequently, the claimants were directed by a police officer to the office of a lawyer who informed them that he could file a notarized document for them.

[7]       The claimants arrived in Canada on XXXX, 2022 and made claims for refugee protection on June 21, 2022.

Designated Representative

[8]       The Immigration and Refugee Protection Act requires the designation of a representative for all claimants less than 18 years of age.[3] For the purposes of the claims for refugee protection, in accordance with subsection 167(2) of the IRPA, the RPD appointed the principle claimant to be the Designated Representative for the minor claimant. At the beginning of the hearing, the principle claimant affirmed her willingness to be the Designated Representative for the minor claimant.

The hearing

[9]       The hearing was held by videoconference using Microsoft Teams.

DETERMINATION

[1O]    I find that the principle claimant, XXXX is a person in need of protection pursuant to section 97(1) of the IRPA.

ANALYSIS

[11]     The issues in this claim, as outlined at the beginning of the hearing, are:

  • Nexus
  • Credibility
  • Internal Flight Alternative

Identity

[12]     The claimants’ personal identities and country of citizenship have been established, on a balance of probabilities, as per certified true copies of their passports.[4]

Nexus

[13]     Considering section 96 of the IRPA, the principle claimant testified that she fears returning to Mexico because of actions against her and her family of La Familia Michoacana criminal organization. When asked why the cartel members have continued to search for her mother for more than three years, the principle claimant stated that the cartel members want the money that has gone missing. I find persuasive the decision in Bulbarela[5] where the court stated that, “[t]he law is, I believe, settled that neither fear ofreprisals constituting revenge or a personal vendetta, nor fear of criminal acts, constitutes a fear of persecution linked to a Convention ground.”

[14]     Therefore, I find that the claims have no nexus under section 96 of the IRPA. I have, thus, considered the claims under section 97(1) of the IRPA

Credibility

Oral Testimony

[15]     I found the principle claimant testified in a forthright manner. She made no apparent attempts to embellish her claim. I find the principle claimant to be a credible witness and I have identified no material contradictions, inconsistencies, or discrepancies in her telling of her story. Through her testimony the principle claimant provided a detailed account of events in Mexico which caused the claimants to :flee Mexico and seek refugee protection. Through her testimony the principle claimant established the core elements of her claim.

Personal Documentary Evidence

[16]     The claimants provided documentary evidence to support their claims. These include: i) a medical report, issued XXXX 2021, diagnosing the principle claimant’s XXXX caused by a physical assault,[6] ii) a letter from the XXXX issued XXXX 2021, describing the attack upon the principle claimant which XXXX,[7] iii) a letter from the associate claimant’s sister providing information regarding the attack on the principle claimant of XXXX 2021,[8] iv) a letter from the associate claimant’s parents providing information regarding the refusal of Mexican authorities to accept a report of the attack on the principle claimant of XXX 2021,[9] v) a notarized document, issued XXXX 2021 by lawyer XXXX, outlining the tailing of the principle claimant by two unknown persons,[10] and vi) a letter from the XXXX issued XXXX 2021, which outlines the events of 2021 that caused the claimants to flee Mexico[11].

[17]     The claimants also provided documentary evidence associated with the claim of the principle claimant’s mother. These include: i) the mother’s BOC,[12] ii) a letter to be served for legal proceedings, dated XXXX 2019, outlining events in the mother’s professional life that subsequently led her to flee Mexico,[13] a medical certificate outlining injuries sustained by the principle claimant’s mother and subsequent hospitalization in XXXX 2017,[14] iii) photographs of the injuries sustained by the mother in XXXX 2016,[15] iv) a letter from the XXXX issued XXXX, 2018, informing the mother of continued personal protection for her and her family,[16] v) the RPD decision accepting the claim of the mother for refugee protection, dated XXXX 2021[17].

[18]     I give significant evidentiary weight to the documents provided by the claimants. I find that the claimants’ personal evidence is genuine, reliable, probative and corroborates the allegations of the principle claimant.

[19]     I find that the principle claimant has established her allegations, on a balance of probabilities, and has credibly established a subjective basis for her fear, her husband’s fear, and the minor claimant’s fear of persecution in Mexico. I have, therefore, considered the objective evidence in this case.

Objective Evidence

[20]     A 2020 InSight Crime report indicates that La Familia Michoacana cartel is very much still active today and partaking in drug trafficking, kidnapping and extortion activities.[18] The report corroborates the notorious ability of the cartel to corrupt government officials due partly to the excessive profits from the cartel’s illegal drug related activities. The objective evidence also indicates that La Familia Michoacana resorts to physical abuse including torture and death to silence those who disclose its involvement in corruption.

[21]     I am satisfied that the objective evidence provides an objective basis for the claimants’ fear of persecution at the hands of La Familia Michoacana because of their relationship with the principle claimant’s mother.

Internal Flight Alternative

[22]     At the outset of the hearing, I proposed Merida and Campeche as potential IFA locations. The objective evidence indicates that La Familia Michoacana cartel operates in the southwestern region of Mexico,[19] and the IFA locales are outside of the cartel’s area[20].

[23]     Internal flight alternative arises when the claimant, who otherwise meets all the elements of the Convention refugee definition, is able to find refuge in a part of his or her country of citizenship where there is nota serious possibility of being persecuted and that that location would not be unreasonable, in all circumstances, including those particular to the claimant, for him or her to seek refuge there. The basis for this two-pronged test is the cases of Rasaratnam[21] and Thirunavukkarasu[22]. The test asks two questions:

  1. The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.[23]
  • Conditions in that part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him or her to seek refuge there.[24]

[24]     Claimants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA areas named.

First Prong

[25]     As stated earlier in this decision, the cartel continues to search for the principle claimant’s mother because of a large amount of money that is missing. This testimony is corroborated by the evidence in the mother’s claim for protection. I, thus, find that the agents of persecution are motivated to locate the mother through the principle claimant and her family.

[26]     Regarding the capacity of the agents of persecution to locate the claimants, the principle claimant argued that the cartel would be able to locate her anywhere in Mexico. She stated that the cartel is connected to other cartels in Mexico, and it utilizes different methods to track individuals throughout the country, even outside their areas of operation.

[27]     The objective evidence supports the principle claimant’s testimony. One Response to Information Request (RIR)[25] addresses the issue of the ability of cartels to track individuals outside their areas of operation, citing methods used by Los Zetas cartel to establish a network among the Mexican cartels:

According to the 2014 Popular Science article, Los Zetas set up a communications network across Mexico using cameras and radios, allowing them to monitor “ever[y ]” aspect of their drug trafficking network, and communicate covertly (Popular Science 25 Mar. 2014). According to a DEA agent quoted by the same source, “‘[i]t essentially linked all the different members of the cartel-the people doing the trafficking and the people doing the protection-so there was a communication between them”‘ (Popular Science 25 Mar. 2014). Sources indicate that this system allowed Los Zetas to monitor drug trafficking within Mexico, into Guatemala (Popular Science 25 Mar. 2014; Wired 27 Dec. 2011) and along the border with the US (Popular Science 25 Mar. 2014). The Popular Science article indicates that the network was used to plan attacks and seize territory held by other groups (Popular Science 25 Mar. 2014). Other sources state that its primary purpose was surveillance (Wired 27 Dec. 2011) or “off the grid” communication (Stratfor 13 Sept. 2011). According to the Popular Science article, the network could be managed remotely, connecting members from different areas to coordinate and communicate about operations (Popular Science 25 Mar. 2014). The article further explains that the cartel uses ground-level informants to gather information.[26]

[28]     The same RIR states that cartels use family networks and private investigators to track people, as well as property records in the US and Mexico and place GPS trackers on cars (Assistant Professor, May 28, 2019). Similarly, Texas Monthly, a magazine covering issues such as politics, the environment, industry, and education reports that an attorney with ties to drug cartel leaders, who had been providing information to the US government, was located by means including a GPS tracker on his car and cameras in his neighbourhood. The assistant professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside of their area and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue. Further, in order to extend their influence beyond their areas of operation, cartels rely on the “representation” they have in other areas.[27]

[29]     Another RIR states that cartels such as La Familia Michoacan and Los Zetas operate on the same basis/foundation for tracking individuals within Mexico.[28]

[30]     A further RIR states that if a criminal group has a very strong motivation to find and retaliate against a certain person, especially if the criminal group were one of the more powerful groups in Mexico, then the ability to track or retaliate against a certain person would be a reasonable concern to have and that if organized crime groups in other parts of Mexico are interested and willing to retaliate against people in Mexico City, they could doit easily.[29]

[31]     I find that the cartel has both the motivation and the means to track the claimants throughout Mexico, including in the IFA locations.

[32]     The cartel members have shown a strong interest in pursing the principle claimant. They believe the principle claimant can lead them to her mother. The cartel followed the principle claimant from the time her mother left Mexico in 2019. The cartel beat the principle claimant and threatened her life and the lives of her family.

[33]     For all of the above reasons, I find on a balance of probabilities that the La Familia Michoacana cartel has the means and motivation to pursue the principle claimant throughout Mexico and that the principle claimant therefore does not have a viable IFA within the country. She faces a risk to her life throughout Mexico.

[34]     Since the first prong of the IFA test fails, it is unnecessary to consider the second prong.

CONCLUSION

[35]     For the foregoing reasons, I conclude that the principle claimant is a person in need of protection within the meaning of subsection 97(1)(b) of the IRPA. Therefore, I accept her claim.

[36]     The claims of the associate claimant and the minor claimant are dependent upon the claim of the principle claimant. I, therefore, find that the associate claimant and the minor claimant are persons in need of protection within the meaning of subsection 97(1) of the IRPA. Therefore, I accept their claims.

(signed) Leslie Mason

November 21, 2022


 

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

 

[2] Exhibit 2.1

 

[3] IRPA, supra, footnote 1.

 

[4] Exhibit 1.

 

[5] Bulbarela, Oscar Cessa v. MC.I. (F.C.T.D., no. IMM-2992-01), Dawson, June 4, 2002, 2002 FCT 636.

 

[6] Exhibit 5, pp 5-6

 

[7] Exhibit 5, pp 17-18

 

[8] Exhibit 5, pp. 50-51

 

[9] Exhibit 5, pp. 52-53.

 

[10] Exhibit 5, pp 9-10

 

[11] Exhibit 5, pp. 13-16

 

[12] Exhibit 5, pp. 60-71

 

[13] Exhibit 5, pp. 81-82

 

[14] Exhibit 5, p. 74

 

[15] Exhibit 5. Pp. 72-73

 

[16] Exhibit 5, 75-76

 

[17] Exhibit 5, pp. 86-90

 

[18] Exhibit 3, National Documentation Package (NDP) for Mexico, (September 29, 2022), item 7.25

 

[19] Exhibit 3, NOP for Mexico, (September 29, 2022), item 7.2

 

[20] Exhibit 3, NOP for Mexico, (September 29, 2022), item 1.4

 

[21] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710.

 

[22] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

 

[23] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710.

 

[24] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

 

[25] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.15, RIR MEX 106302.E

 

[26] Ibid.

 

[27] Ibid.

 

[28] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.32, RIR MEX200968.E

 

[29] Exhibit 3, NDP for Mexico, (September 29, 2022), item 7.8

Categories
All Countries India

2022 RLLR 19

Citation: 2022 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: September 27, 2022
Panel: Olukunle Ojeleye
Counsel for the Claimant(s): Roberto Colavecchio
Country: India
RPD Number: VC2-00259
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the refugee claim of XXXX XXXX (the “claimant”), a citizen of India. He is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[i]

Administrative Matters

[2]       The Minister intervened regarding credibility, identity and program integrity on April 05, 2019.

ALLEGATIONS

[3]       The allegations are fully set out in the claimant’s Basis of Claim form and his narrative. In summary, the claimant alleges that that he will be harmed and may be killed by a Youth Congress member, XXXX XXXX, whose sister the claimant got pregnant out of wedlock, and the family considered their honour tarnished by the incident. Furthermore, he alleges fear of the Punjabi police acting at the behest of XXXX XXXX.

[4]       The claimant met a lady by the name of XXXX XXXX XXXX during his 11th grade schooling. They became attracted to each other and started meeting even after leaving the school. While the claimant was away studying in Singapore, he kept in contact with XXXX. On return to India in XXXX 2016, the claimant and XXXX continued their relationship and began meeting at one of the motels in secret.

[5]       In XXXX 2016, XXXX became pregnant. She told her mother of her relationship with the claimant, and her mother took her to a doctor for abortion. When XXXX father and XXXX (the brother) became aware of what had happened, XXXX went with some of his friends to look for the claimant at home, but he was absent.

[6]       On XXXX XXXX, 2016, while the claimant was returning home in the evening, he was accosted by two men who were instructed by XXXX to kill him. The claimant was beaten with hockey sticks and an acid was used to remove the tattoo of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant was left for dead and passerby that saw him called the claimant’s father who came and took him to the doctor for treatment. 

[7]       After being discharged from hospital, the claimant was taken by his father to a friend’s place in Ludhiana because XXXX had returned with some men to the claimant’s residence threatening to kill him for tarnishing the reputation of his family, socially and politically.

[8]       The claimant’s friend in Ludhiana advised him that he could not stay in hiding all his life and that relocation within India would be difficult. When he was also advised by a lawyer that he should leave the country to avoid honour killing, the claimant’s friend got him an agent to help facilitate leaving India.

[9]       In XXXX 2017, the agent took the claimant to New Delhi and kept him in hiding. The agent later misplaced the claimant’s passport but promised he would get him out of India. On XXXX XXXX 2017, the agent put the claimant on a flight to Canada on a passport with the name of XXXX XXXX. On arrival in Canada, the claimant was met at Vancouver Airport by the agent’s representative who took the false passport from him after the claimant had cleared customs. The claimant was thereafter introduced to someone else who promised to find him work as well as arrange a permanent residency in Canada.

[10]     When the claimant tried to stay legally in Canada through work and explained his circumstances as well as fear of honour killing to his employer, he was advised to seek legal support. The claimant thereafter made an application for refugee protection.

DETERMINATION

[11]     The panel finds that the claimant is a person in need of protection, pursuant to section 97(1)(b) of the IRPA, because, on a balance of probabilities, he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, should he return to India.

ANALYSIS

Minister’s Intervention

[12]     The Minister of Immigration, Refugees, and Citizenship Canada (the Minister) intervened in-writing in this matter on April 05, 2019.[ii]

[13]     The Minister noted that the claimant only had the following identity documents with him when he made his refugee claim: a unique identification authority of India card; a card from the electoral commission of India; a Punjab senior secondary school certificate; and a birth certificate that had a translated photocopy without the translator’s attestation. The Minister therefore submitted that the claimant has not proven his identity having failed to produce a copy of his passport, or a copy of the passport as well as other travel documents with which he travelled into Canada under a false identity of Gurpreet Singh.

[14]     On May 16, 2022, as part of disclosures made by the claimant, he submitted a copy of his Indian passport to verify his identity. Same disclosure was made to the Minister and the panel did not receive any objections to the disclosure from the Minister.

Identity

[15]     The claimant’s identity as a national of India has been established on a balance of probabilities by the sworn statement in his BOC form,[iii] his testimony, his XXXX card and school certificate,[iv] as well as a copy of his Indian passport.[v]

Nexus

[16]     The panel finds that the claimant has not established a nexus with a Convention ground. The claimant’s fears do not arise from his political opinion, religion, race or nationality or membership in a particular social group.

[17]     The claimant is a victim of crime or personal vendetta.  Those who targeted the claimant have done so out of revenge to teach his family a lesson, while the Punjab police have acted against the claimant at the behest of the agents of harm. The Court has held that victims of crime, corruption or vendettas, including blood feuds generally cannot establish a link between their fear of persecution and one of the five Convention grounds.[vi] The panel finds that there is nothing particular about this case which takes it outside these general principles.

[18]     The principal claimant fears future criminality which is not connected to one of the five Convention grounds. The panel therefore assessed his claim pursuant to section 97(1) of IRPA.

Credibility

[19]     When a Claimant swears to the truth of allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[vii] However, this presumption does not extend to inferences, which are conclusions from facts, or speculation, which are allegations without any evidentiary basis.

[20]     In assessing the Claimant’s credibility, the Panel has considered potential difficulties that the Claimant may face in giving his testimony including:

  • the impact of trauma,
  • cultural and social factors,
  • the Claimant’s age and educational background,
  • the unfamiliar hearing environment and the high-stakes nature of refugee proceedings.

[21]     On a balance of probabilities, the panel accepts the claimant’s allegations as credible. There were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before the panel which have not been satisfactorily explained.

[22]     The claimant submitted numerous documents to substantiate his claim.[viii] These include:

  • An affidavit from the claimant’s parents explaining that XXXX XXXX with unknown members of his party, and the police, have kept coming to them seeking the claimant’s whereabout. The affidavit further stated that the efforts by the claimant’s parents to reconcile with XXXX XXXX and family have been a failure.
  • Affidavit from the claimant’s friend in Ludhiana where he was taken by his father after receiving medical treatment on XXXX XXXX 2016.
  • A medical report from XXXX XXXX that confirmed the injury the claimant received on XXXX XXXX 2016 – “hand burnt with acid, injury on forehead and face swollen” – and the treatment he was provided.
  • Various media articles as objective evidence.

Upon a review of these documents, the panel finds no reason to doubt their authenticity. The panel places significant weight on them as having probative values in substantiating the claimant’s allegations.

[23]     The panel notes that the claimant first arrived in Canada on XXXX XXXX, 2017. He was asked why he did not make a claim then. The claimant testified that he knew very little about Canada and the immigration process. He stated that the agent that got him his visa arranged for someone to meet him in Vancouver who took the passport and documents he travelled with from him, and also arranged for him to start working at a company in Vancouver. He stated that he was told a permanent residence would be arranged for him. He testified that in XXXX 2018 when he asked his supervisor about his application for a permanent residence, and his passport was requested, he narrated how he came into Canada and was at that point advised that he had no legal status in Canada and should go to Montreal to seek advise.

[24]     The panel finds the claimant’s explanation regarding his delay in claiming to be reasonable. The panel does not draw a negative inference regarding claimant’s credibility.

Forward Facing Risk

[25]     The panel finds on a balance of probabilities that the claimant has been targeted by the Punjabi police at the behest of the family of XXXX XXXX XXXX who feels dishonored by the claimant’s pre-marital relationship with their daughter that resulted in an aborted pregnancy.

[26]     According to Subsection 97(1)(b) of the IRPA, a person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

  • to a risk to their life or to a risk of cruel and unusual treatment or punishment if
  • the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
  • the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
  • the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
  • the risk is not caused by the inability of that country to provide adequate health or medical care.[ix]

[27]     The risk to life, a risk of cruel and unusual treatment or punishment, or death faced by the claimants is captured by subsection 97(1)(b) of the IRPA.

[28]     The initial basis for the risk arose from the claimant’s pre-marital relationship family with XXXX XXXX XXXX whose family seek revenge against the claimant for dishonoring them.

[29]     The claimant has established on a balance of probability that he is personally at risk. The panel finds that the assault on the claimant in XXXX 2016 by two men who were instructed by XXXX to kill him, and the application of acid on the claimant’s hand XXXX XXXX XXXX XXXX XXXX XXXX XXXX, indicates a high degree of the risk identified above.

[30]     Objective evidence corroborates the claimant’s subjective fear of honor killing. It is reported that “‘Honour killings’ do take place in India in cases of alleged adultery, premarital relationships, rape or falling in love against family wishes”.[x] Between 2014 and 2016, India’s Supreme Court registered 288 cases of such killings.[xi] A report by the Law Commission of India indicates that honour-based violence are under-reported, and honour-related murders are often reported as suicides or as accidents. It is reported that the harmful traditional practise has remained persistent in the country.[xii]

[31]     Further objective evidence supports the claimant’s fear of how the Indian police treat suspects. The prevalence of corruption within the Indian police and the judicial system is highlighted with bribery reported to be prevalent.[xiii] It is reported that unwarranted arrests and maltreatment during police detentions are regular occurrences in India.[xiv] All this documentary evidence serves as an objective basis for the claimant’s fear and corroborates his allegations.

[32]     The panel finds that risk is not faced generally by other individuals in or from that country, as per section (97)(1)(b)(ii). The panel finds that the claimant has been targeted by XXXX XXXX XXXX family who has blamed the claimant for tarnishing the reputation of their family, socially and politically. They have gone further by influencing the Punjab police to seek the whereabout of the claimant. The panel finds that these circumstances change the nature of the claimant’s risk from a generalized risk of indiscriminate crime or police harassment to a non-generalized risk particular to him.

[33]     Likewise, the panel finds that the risk faced by the claimant is neither inherent or incidental to lawful sanctions, as per section (97)(1)(b)(iii) since there is no evidence that he has committed a crime for which he is legally wanted, nor the risk the claimant faces caused by the inability of the country of reference to provide adequate health or medical care, as per section (97)(1)(b)(iv).

[34]     Based on the evidence before the panel, as well as the credible evidence of the claimant that he has been targeted by the police at the behest of XXXX brother and father, the panel finds that the claimant has established the objective basis of his claim and has further established on a balance of probabilities, that the risk he faces is one that is personal to him, and it is not a risk faced generally by the population of India.

State Protection

[35]     The panel finds there is clear and convincing evidence that the state is unable or unwilling to provide the claimant with adequate protection.

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

[37]     The claimant testified that the Punjabi police have been to his parents’ home to inquire about his whereabouts. He testified that he cannot live anywhere in India safely due to the quest by the family of XXXX to redeem their family dignity by killing him for impregnating their daughter, and their involvement of the Punjabi police in seeking his whereabouts. The claimant’s parents attested in an affidavit, that the Punjab police are seeking the whereabout of the claimant under the influence of XXXX family. The panel has no evidence to indicate that the police search for the claimant, is consequent to his being charged with an offence relating to his relationship with XXXX.

[38]     Objective evidence indicates that the police, just like the judicial system, is riddled with corruption, with bribes and irregular payments exchanging hands in return for influencing the redress system and obtaining favourable court decisions.[xvi] It is reported that widespread human right abuses are conducted with impunity by the police. It is further reported these abuses include arbitrary detention, torture, kidnappings, and extra-judicial killings.[xvii]

[39]     Given the claimant’s testimony, and the attestation from his parent, the panel concludes that on a balance of probabilities, the claimant faces persecution in the hands of the Punjabi police as agents of the state, at the behest of the family of XXXX XXXX XXXX.

[40]     The panel finds that the presumption of state protection is rebutted in this case. Since the state through the Punjabi police is an agent of persecution, the panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state considering his particular circumstances.

Internal Flight Alternative

[41]     For a viable IFA to exist, two things must be the case. First, the claimants must not face a serious possibility of persecution or, on a balance of probabilities, a danger of torture, risk to life or risk of cruel and unusual punishment in the proposed IFA location. Second, it must not be objectively unreasonable in all the circumstances for the claimant to seek refuge there. Once an IFA has been proposed, the onus is on the claimant to establish that the proposed IFA is not viable. The standard of objective unreasonableness for a proposed IFA is high and requires proof of adverse conditions which would jeopardize the life and safety of the claimant in travelling to and in living in the proposed IFA location.[xviii]

[42]     The panel considered whether a viable internal flight alternative exists for the claimant in Dharamshala, Jaipur and New Delhi.

[43]     The panel finds that the claimant has established that on a balance of probabilities, he faces serious possibility of persecution in the proposed IFA.

First Prong: Is it safe for the claimant to relocate in India?

[44]     The claimant was asked if he has been to Dharamshala, Jaipur or New Delhi before. He testified that he had been to New Delhi when the agent facilitated his exit from India. He was asked if either of the IFAs would be a safe location for him. The claimant testified that he fears that the XXXX family and the police will find him anywhere in India.

[45]     To assess whether the claimant would be at risk of harm in the IFA location, the panel considered whether the evidence indicates that the family of XXXX XXXX XXXX have the motivation and interest to continue pursuing the claimant.

[46]     The claimant was asked by why he believes that the XXXX brother and family would still be interested in harming him after more than three years, he testified that his parents told him the agents of harm went looking for him about three months ago.  The claimant testified that XXXX family are politically active and influential. The claimant did not provide any evidence to establish how XXXX family would be able to influence the Youth Congress and the Congress Party in Dharamshala, Jaipur or New Delhi to harm him.

[47]     The panel further considered whether the agents of persecution have the means to locate the claimant. The claimant testified that if he were to move to any of the proposed IFAs, he would have to submit identifications before he is able to rent an accommodation and that such identification would be subjected to verification with the police in Punjab. He further testified that as soon as the local police receives information about his whereabout, XXXX family would be aware of his location. He stated that XXXX family would then utilise their connections with the Youth Congress and the National Congress Party to influence the police to arrest the claimant wherever he is.

[48]     The panel accepts the claimant’s allegations that he has been targeted by Punjabi police at the behest of XXXX family. Although the claimant did not provide any evidence to establish that he is legally and officially wanted by the police, the panel is mindful of objective evidence that “police authorities in India are able to track and locate persons of interest, depending on the heinousness of the crime and the pressure received from political authorities”.[xix] It is reported that the police in India are susceptible to endemic corruption which results in the undue influence of the police by those able to afford bribes that may be demanded.[xx] Even though the tenant registration system is noted as limited in its effectiveness, it is reported that it can be used to verify the history of any tenant “whether the person had any criminal involvement or absconding from other states”[xxi].

[49]     Based on the testimony that XXXX family together have been seeking the claimant’s whereabout to redeem the perceived tarnished image of their family,  the objective evidence already cited about honor killings in India, and the allegations that the Punjab police are seeking to know the claimant’s whereabout at the behest of XXXX family, the panel finds that on a balance of probabilities, XXXX family have sufficient interest and motivation to continue to seek the claimant’s whereabout in India.

[50]     Furthermore, the panel finds on a balance of probabilities that if the claimant’s identity is verified through the tenant registration system with the Punjab police, the Punjab police under obligation to XXXX family may divulge knowledge of the claimant’s location in India, thereby providing a means for XXXX family as agents of persecution to locate and harm the claimant in the proposed IFAs.

[51]     Based on the evidence before it, the panel finds that the claimant has provided sufficient evidence to demonstrate that the agents of persecution are motivated and have the capacity to locate and harm him in the proposed IFA. Accordingly, the panel finds that the claimant does face a serious possibility of persecution in India.

[52]     Given the findings on the first prong of the IFA test, the panel finds that there is no viable internal flight alternative for the claimant within his country, and there is no need to examine the second prong of the IFA test.

CONCLUSION

[53]     Considering the preceding, the panel concludes that the claimant has established that he is a person in need of protection, pursuant to section 97(1)(b) of the IRPA. The panel therefore accepts his claim.

(signed) Olukunle Ojeleye

September 27, 2022


 

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

 

[ii] Exhibit 4.

 

[iii] Exhibit 2.

 

[iv] Exhibit 1.

 

[v] Exhibit 5.

 

[vi] Kang, Hardip Kaur v. M.C.I. (F.C., no. IMM-775-05), Martineau, August 17, 2005; 2005 FC 1128, at

para 10. 

 

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

 

[viii] Exhibits 5.

 

[ix] Immigration and Refugee Protection Act, S.C. 2001.

 

[x] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5. ​DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.

 

[xi] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 5.10: ​Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020). Immigration and Refugee Board of Canada. 4 June 2020. IND200256.E..

 

[xii] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 2.11: ​Compilation on India. Office of the United Nations High Commissioner for Human Rights. 22 February 2017. A/HRC/WG.6/27/IND/2.

 

[xiii] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5.

 

[xiv] Exhibit 3, National Documentation Package, India, 30 June 2022, item 10.10. ​Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

 

[xv] Ward [1993] 2 S.C.R. 689

 

[xvi] Ibid

 

[xvii] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 10.10: ​Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

 

[xviii] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, Court of Appeal.

 

[xix] Exhibit 3, National Documentation Package, India, 30 June 2022, tab 10.13: ​Databases, including the tenant registration (or tenant verification) system, the Crime and Criminal Tracking Network and Systems (CCTNS), and POLNET; police access to these databases and their ability to track individuals; cases of individuals … Immigration and Refugee Board of Canada. 7 June 2022. IND201036.E..

 

[xx] Exhibit 3, National Documentation Package, India, 30 June 2022, item 1.5. ​DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.

 

[xxi] Ibid.

Categories
All Countries Honduras

2022 RLLR 13

Citation: 2022 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2022
Panel: Alanna Hatch
Counsel for the Claimant(s): Wendy Aguilar
Country: Honduras
RPD Number: VC1-06006
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division in the claims of XXXX XXXX XXXX XXXX XXXX XXXX (the “principal claimant”) and her spouse, XXXX XXXX XXXX XXXX (the “associate claimant”). The Claimants are citizens of Honduras and are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The details of the Claimants’ allegations are fully set out in their Basis of Claim (BOC) forms and were supplemented by their oral testimony.[1] In summary, the Claimants fear they will be killed by the Mara 13, also known as the MS13, in Honduras because they stopped paying the ‘war tax” that the Mara 13 had extorted from them weekly and because the Claimants filed a report against the Mara 13 with the Honduran police.

DETERMINATION

[3]        I find on a balance of probabilities that the Claimants would be subjected personally to a risk to their lives or to a risk of cruel and unusual treatment or punishment, at the hands of the Mara 13 should they return to Honduras, for the following reasons.

ANALYSIS

Identity

[4]       The Claimants’ identities as nationals of Honduras are established by the sworn statements in their BOC forms and the certified copies of their Honduran passports contained in evidence.[2]

Nexus

[5]       For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds enumerated under s.96 of IRPA: race, religion, nationality, membership in a particular social group or political opinion. Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons.[3] 

[6]       The Claimants submit that there is a nexus in their case to the Convention ground of political opinion and allege they face persecution due to their imputed political opinion.

[7]        I find that there is nothing particular about this case which takes it outside the general principles as set out in Kang.  I find the Claimants were victims of crime and their lives are at risk because they face retribution for ceasing to obey the Mara 13.  As victims of crime who fear future criminality, I find that the Claimants have not established a nexus to one of the Convention grounds.  I will therefore assess their claims under section 97(1) of IRPA.

Credibility

[8]       The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[4] The presumption of truthfulness does not apply to inferences or speculation.

[9]       In this case, I have found no reason to doubt the truthfulness of the Claimants.  The principal claimant testified in a straightforward and convincing manner and was able to answer questions spontaneously and in detail about the extortion and the fear she felt on a daily basis. The Claimants provided corroborating evidence, found in Exhibit 5, to support their allegations including their business licence, photographs of the Claimants in their business, and a copy of the police report filed on XXXX XXXX, 2021.

[10]     I find that the following facts have been established on a balance of probabilities: 

  1. The Claimants owned an operated a XXXX XXXX, or “XXXX”, in Honduras.  The XXXX was a profitable business and had a large clientele.
  • In XXXX 2021, a masked man who identified himself as Mara 13 and who had XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX attended the XXXX and demanded the Claimants pay a “war tax” of 5000 lempiras on a weekly basis.  The man stated that he knew everything about the Claimants’ family and their business and stated the Claimants would be killed if they did not pay the money.  
  • Based on the man’s self identification as a member of the Mara 13 and because of his XXXX XXXX, I accept that the individual who extorted the Claimants was a member of the Mara 13 on a balance of probabilities.
  • Between XXXX 2021 and XXXX 2021, the amount the Claimants were extorted to pay rose from 5000 lempira weekly to 30,000 lempira weekly. The Claimants used profits from the business, their savings, and ultimately sold their cars and some personal belongings in order to make the payments.
  • The Claimants made one payment of 30,000 lempira on XXXX XXXX, 2021. The Claimants abandoned their home and business on XXXX XXXX, 2021, the day before the next payment of 30,000 lempira was due. 
  • The Claimants made a police complaint against the Mara 13 on XXXX XXXX, 2021 at a police station in a different town.  The Claimants spent the night of XXXX XXXX, 2021 at the airport awaiting their flight out of Honduras on XXXX XXXX, 2021.

Risk of Harm

[11] In order to establish they are persons in need of protection under section 97(1)(b), the Claimants must show they would be subjected personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment which is not faced generally by others in Honduras.

[12] When I consider the objective country evidence in relation to the Claimants’ profile as small business owners who have been previously extorted by the Mara 13, I find that the Claimants have established on a balance of probabilities that they face a risk to their life at the hands of the Mara 13 if they returned to Honduras. 

[13] The National Documentation Package contains several articles and reports on the Mara 13. A report by Insight Crime, states that:

The Mara Salvatrucha (MS13) is one of the world’s largest and arguably most violent street gangs. After relatively humble beginnings in Los Angeles in the 1980s, it has spread to more than a half-dozen countries and become a central focus of law enforcement in two hemispheres. In spite of these efforts, the MS13 remains a persistent threat and shows signs of expanding its criminal portfolio. The MS13 has between 50,000 and 70,000 members who are concentrated in mostly urban areas in Central America or locations outside the region where there is a large Central American diaspora. In Honduras and Guatemala, the gang is still largely urban. Violence is at the heart of the MS13 and is what has made it a target of law enforcement in the United States, Central America and beyond. It is central to the MS13’s ethos, its modus operandi, and its evaluation and discipline of its own members. Violence also builds cohesion and comradery within the gang’s cliques. This use of violence has enhanced the MS13’s brand name, allowing it to expand in size and geographic reach, but it has undermined its ability to enter more sophisticated, money-making criminal economies.[5]

[14] The US Department of State Travel Advisory for Honduras states:

Hondurans continue to be affected by MS-13 (Mara Salvatrucha) and Calle 18 gang activity in cities such as Tegucigalpa, Choloma, La Ceiba, Tela, and San Pedro Sula. Most crime victims are members of rival gangs, small business owners who resist gang extortion, passengers on public transportation, or those involved in land disputes. The MS-13 and Calle 18 gangs are the most active and powerful gangs present in Honduras. Gangs are not reluctant to use violence, and specialize in murder-for-hire, carjacking, extortion, and other violent street crime…[6]

[15] In addition, the objective evidence indicates organized crime groups, including the Mara 13, use extortion as one of their primary sources of income.[7] One clique of the MS 13 murdered approximately 40 people between 2016 and 2019 “for not paying extortions, or on suspicion that [the victims] were informants for authorities”.[8]

[16] Furthermore,

Clique leaders keep a close eye and strict control over who gets targeted for extortion, how much money is collected and how often. New targets can be proposed and accepted during meetings. Gang leaders may also discuss issues with collection during those meetings, including whether or not to discipline a target for not paying, not paying on time or absconding.[9]

[17] One recent example of retribution against a pulperia owner occurred in October 2021.  As reported in a Honduran newspaper, a pulperia owner refused to pay the extortion demands and was shot and killed on the street, presumably by gang members.[10]

[18] The objective evidence discussed above establishes that MS13 is a prominent and highly violent gang operating throughout Honduras, which uses the extortion of small business owners as a primary source of income. 

[19] Given the Claimants have already been targeted by the Mara 13 and subsequently stopped making their regular extortion payments, I find, on a balance of probabilities, the Mara 13 are motivated to harm or kill the Claimants in retaliation for ceasing to pay them money, for reporting them to the police, and as a warning to others who refuse the Mara 13’s demands.

State Protection

[20] I find that there is no adequate state protection for the Claimants in Honduras. 

[21] The principal claimant testified that when she and her husband filed the complaint with the police, the police told the Claimants that they would not be able to protect them as the police were understaffed and underfunded.

[22] The objective evidence supports the principal claimant’s testimony.  As cited above, the Mara 13 has not been suppressed by state authorities; rather, the Mara 13 has been growing in both size and geographical reach.  Objective evidence shows that police response to crime is unsatisfactory and undermined by lack of training and resources:

The government lacks resources to investigate and prosecute cases; police often lack vehicles/fuel to respond to calls for assistance. Police may take hours to arrive at the scene of a violent crime or may not respond at all.[11]

[23] Therefore, based on the evidence discussed above and the Claimant’s own experience in seeking protection from the police in Honduras, I find, on a balance of probabilities, that the Claimants will not be able to access adequate state protection in Honduras, and that the presumption of state protection has been rebutted.

Internal Flight Alternative (IFA)

[24] I find that there is no viable IFA for the Claimants in Honduras. The agent of harm is motivated to pursue the Claimants for refusing to comply with their demands and for reporting them to the police.   As stated above, the Mara 13 uses violence to ensure compliance with their demands of extortion.  The Mara 13 is a widespread criminal organization with significant resources and have the means and presence throughout the country to pursue the Claimants anywhere in Honduras.   As already discussed, the objective evidence shows targets are disciplined by the Mara 13 for not making their payments and for absconding, both of which the Claimants have done. Therefore, I find that the Claimants will not be able to live safely anywhere in Honduras and they do not have a viable IFA.

CONCLUSION

[25] When I consider the Claimants’ personal circumstances, the objective country evidence, the lack of state protection and lack of viable IFA, I find that the Claimants have established on a balance of probabilities that they face a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the Mara 13 if they were to return to Honduras.  I therefore find that the Claimants are persons in need of protection pursuant to section 97 of IRPA and accept their claim.

(signed) Alannah Hatch

January 18, 2022


 

[1] Exhibits 2.1 and 2.2.

[2] Exhibits 1 and 5.

 

[3] Kang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1128at para. 10).

 

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

 

[5] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.2 :  MS13 in the Americas:  How the World’s Most Notorious Gang Defies Logic, Resists Destruction.  Insight Crime; Center for Latin American and Latino Studies.  Steven Dudley, Héctor Silva Ávalos. 16 February 2018.

 

[6] Exhibit 3, National Documentation Package (NDP), Honduras, November 30, 2021, tab 7.14: OSAC Country Security Report, September 13, 2021.

 

[7] Exhibit 5, “Extortion Drives Displacement of Victims and Perpetrators Alike in Honduras”, Insight Crime, Aug. 2, 2018. See also, “The MS13’s Vital Fuel:  Extortion”, Insight Crime, April 26, 2019.

 

[8] Exhibit 5, “Inside an MS13 Clique’s Campaign of Terror at the Honduras-El Salvador Border”,  Insight Crime, June 5, 2020.

 

[9] Supra, Exhibit 3, Tab 7.2.

 

[10] Exhibit 5, “Pulperia owner killed due to extortion”, La Prensa¸ October 11, 2021.

 

[11] Supra, Exhibit 3, Tab 7.14.

Categories
All Countries Mexico

2021 RLLR 80

Citation: 2021 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: November 25, 2021
Panel: Rupinder Nirman
Counsel for the Claimant(s): Marianne B Lithwick
Country: Mexico
RPD Number: TC0-02951
Associated RPD Number(s): TC0-03020 / TC0-03037
ATIP Number: A-2022-01778
ATIP Pages: N/A

REASONS FOR DECISION

[1]       The principal claimant, XXXX XXXX XXXX XXXX, and the minor claimant, XXXX XXXX XXXX XXXX, the female claimant, XXXX XXXX XXXX XXXX  claim to be citizens of Mexico, and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

Joined Claims

[2]       These claims were joined in accordance with Rule 55 of the Refugee Protection Division

(RPD) Rules.[2]

Designated Representative

[3]       The principal claimant, XXXX XXXX XXXX XXXX was appointed the designated representative of the minor claimant.

ALLEGATIONS

[4]       The facts and events alleged in support of the claim are set out in the claimants’ Basis of Claim (BOC)[3] forms. To summarize, the principal claimant fears for his and his family’s life by the hands of few corrupt police officers. The principal claimant started a XXXX in 2008, and four people came to the PC’s business and asked for derecho de suelo (payment to carry on a business). The PC was injured by one of the police officers in 2011. In 2012, the PC moved to Pachuca, Hidalgo, while his family remained in Mexico City. For four years, nothing happened, and the PC returned to Mexico City in 2018 and restarted the business. The PC was again threatened. In 2018, the PC’s wife and daughter was outside their home and some men attempted to kidnap the PC’s daughter.

[5]       In XXXX 2019, the PC came to Canada. While in Canada, his wife and daughter saw people following them. The PC went back to Mexico and brought his entire family back on XXXX 2019. The claimants filed for refugee protection on February 5, 2020.

DETERMINATION

[6]       Having considered the totality of evidence, I find that the claimant is a person in need of protection as he would be subjected personally to a risk to his life or a risk of cruel and unusual treatment or punishment or to a danger of torture should he return to Mexico under section 97(1) of the IRPA.

ANALYSIS

Identity

[7]       The claimants’ personal identities and Mexican nationality was established based on certified true copies of their Mexico-issued passports in Exhibit 1 and their testimony. I am satisfied, based on a balance of probabilities, that the claimants have established their identity.

Nexus

[8]       The PC ran a business and was targeted by corrupt police officer for extortion. The police officer demanded money for running the business. When the PC did not pay them, they targeted him and his family. The claimants were not targeted by reason of his race, nationality, political opinion, religion, or membership in a particular social group. I find, therefore, that there is no nexus to a Convention ground and that the claimant does not have a well-founded fear of persecution pursuant to section 96 of the IRPA. The claimant’ s allegations are more properly assessed under subsection 97(1) of the IRPA.

Credibility

[9]       I find that the claimants were credible.  The principal claimant provided details of the harm that he and his family experienced in a credible and consistent manner. He provided direct answers to the questions asked, with additional and spontaneous details. He was not overly pensive about his answers, nor was evasive when questioned. Furthermore, his evidence was free of material omissions or inconsistencies, and his testimony was consistent with his narrative.

[10]     In presuming the claimants to be truthful, I find that there is no foundation to rebut that presumption and I accept all of the evidence of the claimant.

[11]     The principal claimant stated that his problem started in 2008 when he was to pay derecho de suelo, a payment to carry on a business by four unknown people. The principal claimant did not pay the money to carry on his legitimate business. At that time that the principal claimant did not know that the people who threaten them were actually police officers. However, he later learned that truth. The principal claimant answered in a detailed and a straightforward manner without any embellishment. Therefore, I find on a balance of probabilities that the problems that the PC alleges did actually happen.

[12]     In 2011, the PC was seriously injured by the police officer because he was not paying his dues to run the business. The PC was hit so hard that he lost one of his testicles due to the injury. The panel did not go into the detail of the injury as it was a sensitive and emotional topic. However, the claimant answered in detail about the circumstances that led to the police officers injuring the PC. The PC answered in a straightforward manner without any embellishment, and as such I find on balance of probabilities that he is a credible witness.

[13]     The PC was asked about the incident in 2018 and 2019 when his wife and daughter was threatened to be kidnapped. The PC described the incident in detail and they were in line with his narrative. Therefore, on a balance of probabilities, I find the PC’s daughter and his wife were also threatened by the police officers for not paying the bribe money.

[14]     The claimants provided corroborating evidence such as daughter’s school documents, supporting letter from friends and family, medical documents, psychiatric assessment, etc., in Exhibits 4 and 5. I give weight to these documents and they corroborate the claimants’ testimonies.

Reavailment to Mexico

[15]     The PC came to Canada in 2019 by himself. I asked the PC that why did he go back if he was safe here in Canada. The PC stated that he thought that he was the problem and the police officers will not go after his family. However, while the PC was in Canada, there was an attempted kidnapping on the PC’s daughter. The PC stated that he went back to discuss with his wife the next steps, whether to move or leave the country. They decided to leave the country. The panel, on a balance of probabilities, find the PC’s response reasonable, and the panel is not making a negative inference regarding his reavailment. The PC was genuinely thought that his family would be safe without him, and once they were attacked his instinct was to go back and be with them.

The claimant faces a personalized risk, not faced generally by others

[16]     I find that the clamant has established, on a balance of probabilities, that he and his family faced the above incidents occurred as alleged. I find, on a balance of probabilities, that the claimants’ faces a personalized risk that is different from the risk faced generally by other citizens of Mexico. I find that the claimant has established, on a balance of probabilities, that he faces a risk to life that is specific to him because of his reluctance to break the rules and pay the extortion money to the corrupt police officers. Accordingly, this claim is assessed under s. 97 of the Act.

Objective Evidence

[17]     The evidence establishes, on a balance of probabilities, on objective basis for the claimant’s risk to life if he was to return to Mexico. The reading of the NPD, along with the claimant’s testimony shows that the corrupt police officers often collude with the cartel to extract money from the businesses.

[18]     The NDP item 2.1 reports:

Significant human rights issues included: reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings and forced disappearance; torture by security forces; harsh and life-threatening prison conditions in some prisons; arbitrary arrest and lengthy pretrial detention; violence against journalists and human rights defenders; serious acts of corruption.

[19]     The NDP item 7.15 further states about how police help cartel to track people in Mexico.

The Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use “corrupt law enforcement agents” to obtain information about people they pursue.

[20]     The NDP item 9.5 reports the following on corruption by the Police and Police in collusion with Carte in Mexico:

While both Mexico and the international community have been aware of the gravity of this crisis for some time, little attention has been directed at how the acts of corruption described, in part, here-notably, bribery of public officials and law enforcement officers by organized crime and the collusion it fosters contribute to atrocity crimes.

[21]     The claimant has established an objective basis for his claim and his fears are objectively well-founded.

State Protection

[22]     There is a presumption that a state is capable of protecting its citizens, except in situations where there is a complete breakdown. The PC was asked why he did not go to the police. The PC stated in a straightforward manner that the police officers told the PC that if he reported to the police, it would actually be reporting to one of them. The PC stated that the people who threatened and beaten him were police officers, and he did not want to take chances, and put his family’s life at risk by reporting to the police officers.

[23]     The country documentation for Mexico indicates that, while Mexico does have laws in place which criminalizes official corruption, and even though, some corrupt police officers have been arrested, “the government did not enforce the law effectively.”[4] State agents that commit crimes, including the police, continue to enjoy impunity.[5]

[24]     The NDP item 10.2 reports:

Similarly, an article by KPBS, a San Diego news service (KPBS n.d.), states that “[t]he federal government has said infiltration by organized crime is a problem in many police forces in Sonora and around the country”

The US Department of State’s Country Reports on Human Rights Practices for 2019 observes that “[t]here were credible reports of police involvement in kidnappings for ransom, and federal officials or members of the national defense forces were sometimes accused of perpetrating this crime.”

[25]     Based on my review of the objective evidence, and also in consideration of the claimants’ own particular circumstances and the profile of the agent of persecution, I find that the preponderance of the evidence is clear and convincing and rebuts the presumption of state protection in the claimants’ particular circumstances. I therefore find, on a balance of probabilities, that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[26]     I have also considered whether a viable Internal Flight Alternative (IFA) exists for the claimants in Mexico. The police officers have shown a continued interest in the PC and his family. The PC stated that if he moves with his family to another state, the police will have resources to locate him. The NDP item 14.2 corroborates claimants’ claim and stated the following:

According to the website of San Luis Potosf’s Executive Secretariat of the State Council for Public Security (Secretariado Ejecutivo del Consejo Estatal de Seguridad Pública), Plataforma México is a national network that houses forensic databases used by public security personnel, administered by the federal General Coordination of the Secretariat of Public Security (Coordinación General de Secretaría de Seguridad Publica) (San Luis Potosí n.d.).

[27]     Having considered all the evidence, I find that there is a serious possibility of risk to life throughout Mexico for the claimants in their particular circumstances, including in the IFA locations. A viable IFA does not exist for the claimants in Mexico.

CONCLUSION

[28]     Having considered the totality of evidence, I find that the claimants are persons in need of protection as they would be subjected personally to risk to their life or risk of cruel and unusual treatment or punishment or to danger of torture should they return to Mexico under section 97(1) of the IRPA.

[29]     Their claims are, therefore, accepted.

(signed) Rupert Nirman

November 25, 2021


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

[2] Refugee Protection Division Rules (SOR/2012-256), Rule 55.

[3] Exhibit 2.1, 2.2, and 2.3.

[4] Item 2.1

[5] Ibid., at item 7.18.

Categories
All Countries Egypt

2019 RLLR 210

Citation: 2019 RLLR 210
Tribunal: Refugee Protection Division
Date of Decision: March 13, 2019
Panel: M. Vega
Counsel for the Claimant(s): Ronaldo Yacoub
Country: Egypt
RPD Number: TB7-12354
Associated RPD Number(s): TB7-12373, TB7-12379
ATIP Number: A-2020-00518
ATIP Pages: 003355-003358

[1]       MEMBER: We are back on the record and the interpreter has been dismissed. I am going to give a decision at this time and there’s no further questions, as I said before, needed from counsel or submissions, and I’m prepared at this time — and counsel has waived translation, the claimants are both present at this time.

[2]       This decision is being rendered orally in the claims of XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX the principal file is TB7-12354, and the adult claimants are present today and the father is the designated representative with respect to the minor child, XXXX XXXX XXXX, and the father is the principal claimant here.

[3]       Now, the gender guidelines at Guideline 4 have been also considered with respect to the female claimant for both Egypt and Libya.

[4]       This decision is being rendered orally today and a written form of these reasons may be edited for syntax, spelling, grammar, references to the applicable case law, legislation and exhibits may also be included.

[5]       I find that the principal claimant is a citizen of Libya and of Egypt. The female claimant is a citizen of Egypt, and the minor child, claimant, is a citizen of Egypt.

[6]       Now, with respect to, and I concluded this based on the certified true copies of their passports which were provided in Exhibit 1, as well as by their testimony and birth certificates provided as well, so therefore on a balance of probabilities I have concluded that the principal claimant has full citizenship, that of Libya and Egypt, the female claimant only of Egypt, and the minor child has the citizenship of Egypt.

[7]       In this case, I find that you are all persons in need of protection, which you have made a claim against — or, sorry, pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have considered the issue of nexus, which is whether you have — your fear or persecution is linked or connected to the convention grounds. I have found that it is not connected to the convention grounds in your countries of nationality, given that it would be with respect to Ms XXXXin Libya, but she’s not making a claim — she’s not a citizen of Libya, therefore… I’ll break this down slower.

[8]       With respect to Libya, let’s start with Libya. The principal claimant fears the militias as they have in the past tried to extort him and have him pay. They know he had a business, a successful business/store, and they were trying to get money from him. In Libya there is much — the militias are divided by tribes as well. He has spoken how he was living in his tribal area of Benghazi. They tried to extort him, he was injured in a shelling and lost his leg on that occasion. His family — he lived there with his wife and child, and they lived there until 2013 when the war became unbearable and when the militias were threatening him. So he fled to Egypt where he had citizenship there as well.

[9]       He also has been in contact with his family members who live in Libya and who tell him that the militias keep asking about him and want to know where he is, and they advise him not to return.

[10]     Because you have another country of citizenship, Mr. XXXX, I am not making any conclusion about your claim against Libya, I am then going to look at your situation in Egypt, and that is where also your wife and child have their citizenship. So I’m not drawing a conclusion with respect to whether you would be at risk in Libya, but just to say that I see that you would, you would face risk there. Part of the reason it the country situation in Libya, and I just want to speak briefly about that situation before I leave the whole topic of Libya.

[11]     If you face the problems with the militias, you would not be able to obtain any type of protection from government or the state to help you. Libya is currently in a state of civil war, there is no unified government or standardized method of delivering any type of security services. There’s an uncertainty with respect to the political and security situation, and this situation leads me to conclude that there would be no state protection for you if you were there with your family, none for your family, and there would not be an internal flight alternative available to you as well.

[12]     Furthermore, if your wife were there she would be at risk of gender-related persecution, as war — unfortunately, rape is rampant in war, and she would be at risk of that, so of sexual assault.

[13]     The position of the United Nations suggests that internal flight is not reasonably available in Libya, therefore now I look to Egypt.

[14]     The situation with the family in Egypt, according to the allegations in the basis of claim form, which I won’t repeat, basically the principal claimant’s first wife, as he had the two wives, and they were concurrent at one point until he divorced the first wife, that that was legal in Egypt. The problem was despite the first wife agreeing that he could take on the second wife, XXXX XXXX, she later changed her mind and then she had her brothers, there are seven of them, cause false threats and assaults against the principal claimant, threats against his wife, and there was a threat on kidnapping their son, XXXX, in order to retaliate or make the principal claimant suffer for his having scorned her or for having taken a second wife.

[15]     Now, this brings us to the issue. So this is where there’s no nexus to the convention definition, I believe. This is where what you fear, what your whole family fears, is not — I believe it’s a personal life risk, but it is not a nexus because there’s no convention ground that will, in my opinion, cover this.

[16]     However, on a balance of probabilities, which is the threshold I have to use, I find that there is, on a balance of probabilities, a personalized risk to your lives in Egypt. There’s also no state protection, in my opinion, given that your ex-wife’s brother worked in XXXX XXXX department in Egypt. If he were merely a government employee perhaps it wouldn’t be the same. But given that        you’ve provided evidence by way of your testimony and your belief that he is an XXXX XXXX XXXX and the documentary material is clear with respect to the human rights situation deteriorating in Egypt where many human rights groups have spoken out against how the government in Egypt has, on many occasions, basically — it is respecting the human rights of the citizens.

[17]     The authorities in Egypt arbitrarily restrict the rights to freedom of expression, association, peaceful assembly, any opposition to them is basically taken in for questioning and they will not tolerate anyone being in any type of opposition to the government or expressing it in anyway.

[18]     But apart from that, the question is on the street level, would the police protect you? You’ve testified how this brother, how police officers were even present at the assault when you were stabbed, Mr. XXXX. Now, that’s not to say all the police are corrupt or would do that, but given the fact that the documentary material speaks about that there’s a very high level of corruption in Egypt and that this brother who is one of the persons who has been threatening your family, given that he is also in the XXXX XXXX and the documentary material makes it clear, in my opinion, that a person who has those types of connections, with the corruption that is rampant in Egypt, can accomplish harming you if you were to try to go elsewhere.

[19]     So I don’t believe there’s an internal flight alternative for you and your family and I don’t believe that the state will adequately and effectively protect the three of you if you were to try to get help against them. You did file a report against them and the report, which is in evidence, didn’t go anywhere. If anything, the other family filed counter-charges against you, for which you’ve testified that you were then having to appear in court.

[20]     The documentary material also speaks about prolonged detention for people in Egypt, sometimes without charges or without a trial, and how the Egyptian authorities have misused many of their powers against their own citizens, according to many human rights groups throughout the world.

[21]     So for all of these reasons, I find on a balance of probabilities that XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, that you are all persons in need of protection under Section 97(1) because your life is at risk in Egypt. Therefore, these three claims are now allowed.

[22]     Thank you. 

[23]     CLAIMANTS: Thank you.

[24]     MEMBER: Do you understand? Have a good day. Thank you, counsel.

– – – UPON RECESSING – – –

– – – UPON RESUMING – – –

[25]     MEMBER: We’re back on the record. I just wanted to comment and say with respect to credibility, I had my concerns with respect to certain omissions, and I considered them a lot throughout the hearing, and I found your explanations reasonable for why these omissions occurred. You did mention them, they were mentioned as attacks in the basis of claim form. The only thing is that they were not — you did not provide the dates specifically. But you did mention them. I understand and I found your explanations reasonable for you, Ms XXXX, because they were very painful to talk about and to put down and for you, sir, because you didn’t have the proof, you only had the proof of one, and you did mention it and it is in your evidence.

[26]     So overall — and I found that this doctor’s letter explaining that you have XXXX XXXX XXXX XXXX XXXX helps me to understand why you kind of would not answer my questions. I don’t believe you were trying to be evasive.

[27]     So, for all of these reasons, I have accepted your credibility, and therefore your allegations. That’s why I’ve also accepted you as persons in need of protection.

[28]     This hearing is now concluded. Thank you and good day to all.

– – – DECISION CONCLUDED – – –

Categories
All Countries Georgia

2020 RLLR 189

Citation: 2020 RLLR 189
Tribunal: Refugee Protection Division
Date of Decision: August 27, 2020
Panel: N. Bower
Counsel for the Claimant(s): Vera Povaliaeva
Country: Georgia
RPD Number: VB8-02778
Associated RPD Number(s): N/A
ATIP Number: A-2020-00859
ATIP Pages: 000562-000572

REASONS FOR DECISION

INTRODUCTION

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

DETERMINATION

[2]       I find that the claimant is a person in need of protection.

ALLEGATIONS

[3]       The claimant is from Martkopi, a town in Georgia about half an hour’s drive from the capital city of Tbilisi.

[4]       In May 2007 the claimant was convicted of possessing small amounts of two narcotic drugs and was sentenced to seven and a half years in prison. He appealed the sentence, and reached a plea agreement with the prosecutor. His sentence was reduced to two years’ imprisonment and five years’ probation. The claimant alleges that one of the drugs, heroin, was planted on him to increase his sentence.

[5]       As part of the plea agreement for a reduced sentence, the claimant was required to provide a statement to the authorities that he had purchased drugs from a specific named individual. The claimant did not recognize the name and had never purchased drugs from him. The claimant’s lawyer recommended that the claimant provide the statement, and the claimant did so.

[6]       When the claimant was imprisoned his relationship with his wife ended. He entered into a common-law relationship with another woman after he was released from prison.

[7]       In 2013 the claimant needed his ex-wife’s signature as part of his application for a Canadian work visa. His ex-wife’s brother, the claimant’s prior brother-in-law, demanded that the claimant sign a dept receipt stating that the claimant owed the brother-in-law US$10,000 before the ex-wife would sign as required. The claimant signed the debt receipt, and his ex­ wife signed for the work visa application.

[8]       The claimant received a Canadian work visa in 2013 and travelled to Canada. He has remained in Canada since except for two brief trips to Georgia to visit his wife and their son, who was born very shortly after the claimant first came to Canada. He extended his work visa multiple times. After he was unable to obtain an extension in 2018, he sought refugee protection.

[9]       Since seeking protection in 2018, the claimant has learned that a strange man has been looking for him, demanding to know from the claimant’s brother and common-law partner where to find the claimant. This man blames the claimant for destroying his life, apparently by naming this man as a drug dealer, resulting in over a decade in prison. This strange man has assaulted the claimant’s brother in Martkopi, and has threatened and harassed the claimant’s common-law partner and young son in Tbilisi.

[10]     The claimant alleges that he faces harm from Georgian police because of his history of drug use. He alleges that he will be imprisoned for using drugs, even though he now no longer uses drugs. He alleges that his ex-brother-in-law will harm him because the claimant left his ex-wife and because the ex-brother-in-law wants the claimant to pay the amount promised by the debt receipt. He alleges that he faces a risk to his life from the stranger who blames the claimant for his lengthy imprisonment.

ANALYSIS  

Identity

[11]     I find that the claimant is a national of Georgia. He has provided a copy of his Georgian passport with the Canadian work visa he used to enter Canada.2 He has also provided a certificate from the Ministry of Justice of Georgia stating that he is a citizen of Georgia who received amnesty for his conviction.3

Exclusion – 1F(b)

[12]     I find that the claimant is not excluded from protection by Article 1F(b) of the Convention.

[13]     Under section 98 of the IRPA and Article 1F(b) of the Convention, a person is excluded from protection if there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. I find, based on the evidence before me, that there are not serious reasons for considering that the claimant committed a serious crime outside Canada before seeking protection in Canada.

[14]     If a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, there is a presumption that the crime is serious.4 Factors to consider when determining if a crime is serious include the elements of the crime, the mode of prosecution, the prescribed penalty, and the aggravating and mitigating circumstances underlying the crime.5

[15]     I find that there are serious reasons to consider that the claimant has possessed prescribed drugs in Georgia for personal use. He has acknowledged that he used drugs in the past. I find that there are not serious reasons to consider that the claimant trafficked in drugs; there is no evidence before me to suggest that the claimant has been involved in trafficking.

[16]     I find in the circumstances of this claim that possession of drugs for personal use is not a serious crime. The maximum sentence in Canada for possession for personal use (as opposed to possession for the purpose of trafficking) is seven years’ imprisonment.6 It is not presumed serious. As noted specifically in the context of the severe punishments imposed for personal use of drugs in Georgia, criminalizing drug use has few if any benefits for either public safety or for the health of those addicted to drugs.7 Canadian courts are recognizing that drug addiction is a health issue rather than a moral choice deserving of condemnation, and possession of personal use of even “hard” drugs may result in a conditional discharge (which does not leave a criminal record should the person sentenced complete the conditions).8 There is nothing aggravating about the circumstances of the claimant’s possession. Although the claimant was initially sentenced to more than seven years in prison in Georgia, Georgia’s criminal laws regarding drugs are particularly harsh, and have become somewhat more liberal since the claimant’s conviction.9

Credibility

[17]     I find that the claimant was a credible witness.

[18]     The claimant testified in a spontaneous and responsive manner. There were no significant inconsistencies in the evidence before me.

[19]     The claimant provided several corroborating documents. He has provided a notarized letter from his Georgian lawyer regarding the claimant’s drug conviction.10 He has provided a second notarized statement from his Georgian lawyer about his statement about the stranger.11 In these letters the lawyer states that it is common for police to plant drugs on suspects, that the claimant did not want to plead guilty to the charges he faced, and that the lawyer recommended that the claimant plead guilty in order to receive the minimum punishment of seven and a half years in prison instead of nine and a half years in prison. The lawyer goes on to state that the prosecutor’s office forced the claimant to state that the claimant purchased drugs from someone the claimant did not actually know, in exchange for a significantly reduced sentence. He has provided a copy of the verdict of the Chamber of Appeals of Criminal Cases of Tbilisi Court of Appeals reducing his sentence on the motion of the prosecutor.12

[20]     The claimant has provided notarized letters from his brother13 that a stranger has threatened the claimant and attacked the brother after demanding information about the claimant. He has provided a notarized letter from a witness who heard one encounter and saw the claimant’s brother immediately after the brother was beaten by the stranger.14 He has provided a notarized letter from a friend who saw the claimant’s brother’s injuries immediately after another assault.15 He has provided copies of medical report about the brother’s injuries from this assault.16 He has provided copies of the police complaints made by the brother about the assaults, which note that each case was closed “due to inadequate evidence and lack of witnesses in the case.”17

[21]     The claimant has provided a notarized letter from his common-law partner that she was threatened on two occasions by a stranger who accused the claimant, her partner, of ruining the stranger’s life.18 He has provided a notarized letter from a witness to one of those threatening incidents.19 He has provided a notarized letter from a different witness to the other threatening incident.20 He has provided a copy of the police complaint made by his common­ law partner about the threatening, which notes that the case was closed “due to inadequate evidence and lack of witnesses in the case.”21

Risk of harm

[22]     Considering the evidence before me in this claim, I find that the claimant has established on a balance of probabilities that he faces a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Georgia.

[23]     The evidence shows that a stranger blames the claimant for the stranger’s lengthy imprisonment and intends to harm the claimant as revenge. The stranger has attacked and injured the claimant’s brother in Martkopi, the small town where the claimant used to live. In one encounter another man helped the stranger to assault the claimant’s brother. The stranger has threatened the claimant to the claimant’s common-law partner in Tbilisi, the capital and largest city in Georgia. The stranger approached the claimant’s son in a manner that made the claimant’s partner fear that the stranger might abduct or harm the son. The stranger has repeated that he blames the claimant for ruining his life and intends to enact his revenge on the claimant when he finds the claimant.

[24]     The claimant’s common-law partner and son moved to another neighbourhood within Tbilisi recently to avoid further harassment from the stranger. The partner stays in the house unless she has to go out, and the son only goes to school. The partner has been told by her prior neighbours that the stranger continues to appear around her previous house searching for her and threatening the claimant’s life.22

[25]     (I note that several of the translations of witnesses’ letters refer to a “foreign man.” At the hearing the claimant and the interpreter clarified that ‘foreign’ meant ‘strange’ or ‘unknown,’ rather than someone from another community or country.)

[26]     The claimant does not know much about this stranger. He does not know the person’s name, background, or available resources. He does not know how the stranger found his family, either his brother in Martkopi or his partner and son in Tbilisi. He suggests that the stranger may have been able to get this information from the criminal underground through connections from prison, but this is speculation.

[27]     As the claimant has never seen this man, and the claimant’s brother and common-law partner did not see the man who encountered the other, the claimant cannot be certain that it was the same man. However, I find the possibility that two men have recently begun to hunt the claimant making the same threats with the same justification to be implausible. It is more likely that it is the same man who first attacked the claimant’s brother and then threatened the claimant’s common-law partner.

[28]     Based on the evidence, I find the following. The stranger blames the claimant for his lengthy period of imprisonment that ruined his life. The stranger has found the claimant’s brother in Martkopi and assaulted him with a knife. The stranger has found the claimant’s family in Tbilisi and threatened them. The stranger has used physical violence against those close to the claimant, and has threatened to kill the claimant. The stranger has not faced any consequences for his actions.

[29]     Despite all that is unknown about the stranger, the evidence establishes that the stranger is motivated to find and harm the claimant, and has located those connected to the claimant in two different cities, including the largest city in the country. The stranger is willing to use a weapon and inflict violence of those connected to the claimant. There is nothing in the evidence that suggests that the stranger will not continue to pursue the claimant or will not carry out his threats against the claimant.

[30]     Based on the evidence before me in this claim, I find on a balance of probabilities that this man is able to and intends to seriously hurt or kill the claimant should the claimant return to Georgia. I therefore find that the claimant faces a risk to his life or a risk of cruel and unusual treatment or punishment in Georgia.

State protection

[31]     I find, considering the evidence before me in this claim, that the claimant would not receive adequate state protection in Georgia.

[32]     The police response to emergency calls is best in Tbilisi, the capital, but it can take over an hour for the police to respond to a call even there. Police officers have inconsistent levels of training and lack resources. Work still remains to improve the effectiveness of post-incident investigations by police.23 At times civilian authorities have not maintained control over security forces, and police forces have abused their powers to commit human rights abuses, particularly for political purposes.24 Failure to investigate into these abuses has further decreased public confidence in the police and prosecutors.25

[33]]    The claimant’s brother and common-law partner have both reported their encounters with the stranger to the police. The police did not investigate successfully. The claimant’s mother reported to the police an incident when the claimant’s ex-brother-in-law threatened her; that report was also closed “due to inadequate evidence and lack of witnesses in the case.”26

[34]     The claimant’s family members have not received adequate assistance from the police. They have continued to face violence from the stranger and the claimant’s ex-brother-in-law. This is consistent with the documentary evidence that reports Georgian police lack training and resources and do not have the confidence of the public.

Internal flight alternative

[35]     I find, considering all of the evidence before me, that the claimant does not have a viable internal flight alternative. I find that the claimant faces a risk to his life or a risk of cruel and unusual treatment or punishment throughout Georgia.

[36]     The stranger has located the claimant’s family members in his home town of Martkopi and in the capital city of Tbilisi. He has demonstrated an ability to locate those connected to the claimant in two locations, including the most populated city in the country.

[37]     Georgia is a relatively small country with a population under four million persons. Tbilisi, the capital, has just over one million persons. More than four in ten Georgians live outside urban areas.27 If the claimant relocated, he would likely be obvious as a newcomer to the area.

[38]     The Georgian government maintains a civil registry that includes the name, residence, and national ID number of each citizen, and a police officer may be able to access this registry to determine any person’s address.28 A person buying a SIM card in Georgia must register using a form of identification, either a passport, national ID card, or driver’s licence.29 Police have abused surveillance systems with impunity, although primarily for political purposes, and “there are no effective mechanisms for preventing corruption in state-owned enterprises and independent regulatory bodies.”30 The combination of national registration with addresses and official corruption provides a mechanism for someone with sufficient connections or wealth to discover a target’s location.

[39]     Considering all of the evidence, I find that the stranger has demonstrated the motivation and ability to pursue the claimant, and may have access to a national database listing the claimant’s address in Georgia. I therefore find that the claimant does not have a viable internal flight alternative.

CONCLUSION

[40]     Based on the analysis above, I conclude that the claimant a person in need of protection pursuant to section 97(1) of the IRPA. Accordingly, I accept the claim.

 (signed)          N. BOWER

August 27, 2020

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

2 Exhibit 1.

3 Exhibit 10.

4 Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, para. 62.

5 Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404, para. 44.

6 Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 3(a).

7 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 9.4: Harsh Punishment. The Human Toll of Georgia’s Abusive Drug Policies. Human Rights Watch. 13 August 2018.

8 R. v. Park, 2020 ONSC 3941.

9 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 9.4: Harsh    Punishment. The Human Toll of Georgia’s Abusive Drug Policies. Human Rights Watch. 13 August 2018.

10 Exhibit 7, pp. la-5a.

11 Exhibit 6, pp. 24-28.

12 Exhibit 6, pp. 14-23.

13 Exhibit 6, pp. 29-33; exhibit 7, pp. 14a-16a.

14 Exhibit 6, pp. 38-41.

15 Exhibit 7, pp. 25a-26a.

16 Exhibit 6, pp. 34-37; exhibit 7, pp. 19-20.

17 Exhibit 6, pp. 42-43.

18 Exhibit 6, pp. 51-55.

19 Exhibit 6, pp. 58-62.

20 Exhibit 6, pp. 63-66.

21 Exhibit 6, pp. 56-57.

22 Exhibit 7, pp. 34a-45a.

23 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 7.1: Georgia. 2020 Crime and Safety Report. United States. Overseas Security Advisory Council. 11 May 2020.

24 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 2.1: Georgia. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

25 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 2.2: Georgia. Human Rights in Eastern Europe and Central Asia: Review of 2019. Amnesty International. 16 April 2020. EUR 01/1355/2020.

26 Exhibit 7, pp. 32a-33a.

27 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 1.3: Georgia. The World Factbook. United States. Central Intelligence Agency. 17 June 2020.

28 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 10.1: Police structure at the national and local levels; whether there exists a national computer system or registry of citizens that police have access to; whether police officers in districts not under their jurisdiction have access to an individual’… Immigration and Refugee Board of Canada. 25 March 2015. GEO105101.E.

29 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 11.1: Georgia. Freedom on the Net 2019. Freedom House. 2019.

30 Exhibit 3.2: National Documentation Package, Georgia, 30 June 2020, tab 2.1: Georgia. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020.

Categories
All Countries Egypt

2020 RLLR 187

Citation: 2020 RLLR 187
Tribunal: Refugee Protection Division
Date of Decision: March 20, 2020
Panel: Megan Kammerer
Counsel for the Claimant(s): Thaer Abuelhaija
Country: Egypt
RPD Number: VB9-01049
Associated RPD Number(s): N/A
ATIP Number: A-2020-00518
ATIP Pages: 003794-003802

REASONS FOR DECISION  

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

ALLEGATIONS

[2]       The claimant is an Egyptian citizen who lived in Saudi Arabia from 2002 to 2018. He alleges that when he returned to Egypt he was arrested and assaulted by members of the police force, who told him that he had to pay them XXXX XXXX XXXX Egyptian pounds or they would fabricate a file on him which demonstrates that he belongs to the Muslim Brotherhood.

[3]       The claimant is worried that he will be killed if he returns to Egypt.

DETERMINATION

[4]       I find that the claimant is a protected person pursuant to section 97(1) of the Act.

ANALYSIS

Identity

[5]       I find that the identity of the claimant as a national of Egypt has been established by his testimony and the supporting documentation filed, including his passport.2

 Credibility

[6]       When a claimant swears to the truth of his allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. In this case, I have found no reason to doubt the claimant’s truthfulness with respect to the allegations he has made about being detained and beaten by the police when they attempted to extort him. His testimony on this point was straightforward and consistent with his Basis of Claim form and narrative. I accept these allegations as recounted by the claimant during his testimony as true.

[7]       I do note that the claimant has provided several documents to corroborate his allegations, including short affidavits written by his mother, his brother, and an individual who says he witnessed the claimant being taken by the Egyptian police to an unknown destination.3 I note that these witness statements are very short, vague, and undated. I therefore attach very little weight to them. The claimant has also provided a police report which indicates only that on XXXX XXXX XXXX 2019 his brother reported their mother’s personal supply card had been lost but does not otherwise corroborate his allegation that his mother was beaten and robbed by state authorities who were searching for him.4 Again, I attach little weight to this police report. Despite the low probative value of these corroborating documents, I do not find that they detract from the credibility of the claimant with respect to the allegations he has made about the police beating and trying to extort him.

[8]       I do have some doubts about the veracity of the claimant’s allegations with respect to his political opinion, which was raised as an issue by his counsel who asked him a series of leading questions about his political involvement and whether he supports the current regime in Egypt. These allegations contradict many of the statements made in the claimant’s narrative, in which he stated that he is “not a member of the Muslims Brotherhood or any other groups,” that he has “nothing to do with politics,” that he “personally was neither with nor against president Morsi, and never belonged to any political groups,” and that he is a “peaceful person who has never been a member of any political group, and never had any political views.” Although I do acknowledge that the claimant wrote in his narrative that he has “always been against injustice, oppression, and poverty” and that he participated in demonstrations against the regime of Husni Mubarak in 2010, I find that his statements about his political opinion during the hearing directly contradicted many of the statements made in his narrative and that his allegations with respect to being vulnerable to persecution due to his political opinion are not credible.

Nexus

[9]       I find that the claimant’s fear of state authorities in Egypt is not tied to a Convention ground. Rather, the claimant fears state authorities who tried to extort him due to the perception that he is wealthy and lived abroad. As such, I do not find that there is a nexus between the claimant’s allegations and any of the refugee Convention grounds and I have assessed this claim under section 97(1) of the Act only.

[10]     Although counsel argued on behalf of the claimant that there is a nexus to political opinion, the claimant clearly stated in the narrative attached to his Basis of Claim form that he “has never been a member of any political group” and has “never had any political views.” He also stated that when he was arrested by the police, they told him “we know that you have nothing to do with any political parties, and that you are not a member of the group of Muslim Brotherhood, and that you don’t belong to the Party of Light and justice, like your cousin.” I thus find that there is insufficient evidence to establish a nexus to political opinion in this case.

Risk of Harm

[11]     To establish his status as a person in need of protection in Egypt, the claimant must show that he would be subjected personally on a balance of probabilities to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture, if he returned to Egypt. The claimant has submitted that he is being targeted by state authorities who are trying to extort him.

[12]     The claimant testified that he moved back to Egypt from Saudi Arabia in XXXX 2018. In approximately XXXX 2018, the claimant visited his cousin, who had been accused of being a member of opposition political parties and who had recently been released after having been detained by state authorities for a year and a half. The claimant was on his way home when he was stopped by police officers who grabbed him and asked him why he had been visiting his cousin. They asked to see his identification and noted that he had managed a restaurant in Saudi Arabia. One of the individuals took a picture of his identification card. The altercation lasted for approximately two hours, following which the claimant was released and told not to visit his cousin again.

[13]     In approximately XXXX 2018, the claimant testified that he was sitting at home when he was apprehended by individuals in a police patrol car and taken to The Greater Mahalah’s third police station. He testified that this police station is heavily guarded and has a reputation for being where prisoners are tortured. The claimant testified that he was blindfolded, handcuffed, and made to take off his clothes. He was beaten, insulted, and had cold water thrown over him. At one point, both his feet were tied together and he was hung from the ceiling. Throughout this ordeal, the claimant heard his captors saying “this guy is recommended, this is the guy of Saudi Arabia.”

[14]     When the claimant was told to put his clothes back on, he was told that because he possessed an iPhone he would be expected to pay. He was transferred to a different room and recognized one of the individuals who had taken a photograph of his identification card in XXXX. He was told: “we know that you have nothing to do with any political parties, and that you are not a member of the group of Muslim Brotherhood, and that you don’t belong to the Party of Light and justice, like your cousin” but that if he did not pay XXXX XXXX XXXX Egyptian pounds to the police then they would manufacture a full file about him which indicates that he belongs to the Muslim Brotherhood and he would be punished accordingly. The authorities told the claimant that because he has been living in Saudi Arabia for five years they know he has money.

[15]     The claimant negotiated with his captors and agreed to pay them XXXX XXXX XXXX Egyptian pounds. He agreed to provide them with the first XXXX XXXX XXXX Egyptian pounds the following morning and indicated that he would be able to make another payment in XXXX 2019.

[16]     The following morning, the claimant transferred the first XXXX XXXX XXXX Egyptian pounds as agreed. He finalized plans to travel to Canada and departed from Egypt on XXXX XXXX XXXX 2018 prior to the payment of the second installment.

[17]     The claimant testified that in XXXX 2019, after the second instalment was due, individuals identifying themselves as government officials went to his mother’s home to ask about his whereabouts. They searched her house, stole her identification documents and valuables, and hit her on the head. The claimant explained that his brother took their mother to the police station to report the incident and was told that if he proceeded further with the claim they would “eradicate” him from “the face of the earth.”

[18]     The claimant testified that following this incident he has minimized contact with his mother, so as not to endanger her. He worries that phone calls are being monitored. He has asked his mother indirectly if any individuals are still looking for him and believes that they are.

[19]     The objective evidence is consistent with the claimant’s allegations and indicates that incidents of arbitrary arrest and detention are “frequent.” In 2018, local activists and rights groups have stated that “hundreds” of arrests did not comply with due process laws. A report issued on December 10, 2018 by the Arabic Network for Human Right Information indicates that the police have gone so far as to refuse to release defendants that the court has ordered must be released. There is also evidence that civilians may be beaten and/or tortured while in detention, as well as reports of suspects being killed in unclear circumstances following their arrest. In 2018, for example, press reports indicated that Abdel Halim Mohamed El-Nahas died following a five-hour interrogation in Tora Prison. In June of that same year, authorities killed 10 persons and arrested two in raids conducted across the country, alleging that those who were killed or arrested were involved in an opposition movement.5 The Egyptian Coordination for Rights and Freedoms (ECRF) has identified 30 people who died from torture while being held in police stations and other Interior Ministry detention sites between August 2013 and December 2015. In 2016, the ECRF reported that its lawyers received 830 torture complaints and that a further 14 people had died from torture in custody.6

[20]     Based on the totality of the evidence before me, including the claimant’s testimony and the objective evidence, I find on a balance of probabilities that the claimant would face a forward-facing risk to his life from state authorities in Egypt. The principal claimant was detained and beaten on two occasions by state authorities who were seeking to extort him. He has now left the country with an outstanding debt to these officers. These state authorities continued to target the claimant’s mother after he left the country.

[21]     The next question for me to consider under a section 97 claim is whether, in the context of the allegations, the claimant has provided sufficient evidence of his specific circumstances to establish that his risk is distinct from that of the general population.

[22]     Pursuant to section 7(1)(b)(ii) of the Act, claimants are not entitled to protection under the Act if the risk they face to their lives of cruel or unusual treatment or punishment, in Egypt, is a risk that is generally faced by others in or from Egypt. The claimant must establish that he would face a risk different from those risks faced by the general population there.

[23]     Consideration of a claim under section 97(1)(b) requires an individualized inquiry on the evidence, in the context of a present or perspective risk for the claimant, to determine if the risk personally faced by the claimant is also faced by others, generally, in Egypt. In this case, the claimant has been targeted, threatened, and subjected to violence by state authorities. This escalated from an encounter on the street, to the claimant’s arrest, and finally to physical assault. This is a specific and personalized risk. I find that these circumstances change the nature of the claimant’s risk to a non-generalized risk that is particular to this particular claimant. In my view, the claimant has established the objective basis of his claims, and has also established that the risk he faces is one that he personally faces and that is not faced generally by the population of Egypt.

State Protection

[24]     Given that the state is the agent of harm in this case, I find that the state would not be willing or able to provide protection to the claimant. I find that the state agents who targeted the claimant are not merely rogue officers. The objective evidence indicates that Egyptian state authorities engage in widespread arbitrary arrests, enforced disappearances, and torture against perceived dissidents and that the way they treated the claimant is part of a larger pattern of abuse perpetrated against civilians.7

[25]     I find that the presumption of state protection has been rebutted.

Internal Flight Alternative (IFA)

[26]     The test for a viable Internal Flight Alternative is two pronged. The Board must be satisfied that there is no serious possibility of the claimants being persecuted, or on a balance of probabilities subjected personally to a section 97(1) risk of harm in the IFA location, and conditions there must be such that it would not be objectively unreasonable in all the circumstances, including those particular to the claimants, for them to seek refuge there.

[27]     In this case, I find that the state authorities who have demonstrated an interest in the claimant would likely be able to find the claimant anywhere in the country. The evidence in this case indicates that state authorities continue to be motivated to locate the claimant, as they tracked him down, arrested, and beat him while he was in Egypt, and continue to attempt to search for him at his mother’s house now that he has left the country.

[28]     I find that state authorities were initially motivated to look for the claimant due to the perception that he has financial resources because he spent a significant amount of time out of the country, and that he became a target once he was drawn to their attention following his visit to his cousin’s house. I further find that following the claimant’s disappearance from Egypt this motivation would have increased due to the perception that he did not abide by the “deal” he made with authorities when he was detained.

[29]     State authorities would certainly have the means to locate the claimant throughout the country, as the government maintains effective control across Egypt.

[30]     As such, I find on a balance of probabilities that it is more likely than not that the claimant would face a risk to his life throughout the country. In my view, there is no viable IFA available to the claimant.

CONCLUSION

[31]     For the foregoing reasons, I find that the claimant is a person in need of protection in Egypt under section 97 of the Act and accept his claim.

(signed)           Megan Kammerer   

March 20, 2020

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

2 Exhibit 1.

3 Exhibit 4.

4 Exhibit 5.

5  Exhibit 3, National Documentation Package (NDP), Egypt, September 30, 2019, Item 2.1.

6 Exhibit 3, NDP, Item 10.1.

7 Exhibit 3, NDP, Item 10.1.

Categories
All Countries Egypt

2020 RLLR 180

Citation: 2020 RLLR 180
Tribunal: Refugee Protection Division
Date of Decision: July 10, 2020
Panel: D. Willard
Counsel for the Claimant(s): Sherif Ashamalla
Country: Egypt
RPD Number: TB9-22509
Associated RPD Number(s): TB9-22529, TB9-22563, TB9-22564, TB9-22565
ATIP Number: A-2020-00518
ATIP Pages: 001001-001012

REASONS FOR DECISION

[1]       This is a decision of the Refugee Protection Division (RPD) in the claim for refugee protection put forth by Mr. XXXX XXXX XXXX XXXX (the principal claimant), Ms. XXXX XXXX XXXX XXXX (the female claimant), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX (the minor claimants) under sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 The panel has carefully and mindfully considered the claims in their entirety. The principal claimant was appointed as the Designated Representative for the minor claimants.

DETERMINATION

[2]       This is a split decision. The panel finds that the claimants who are citizens of Egypt only (that is, all of the claimants except for XXXX) are persons in need of protection as specified under section 97(1) of the IRPA. The panel finds that XXXX XXXX XXXX XXXX as a citizen of the U.S., is neither a Convention refugee nor a person in need of protection. The reasons are as follows.

[3]       In reaching its determination, the panel has taken into consideration the level of education and sophistication of the principal claimant and female claimant, including the stresses in the hearing room. The panel has further taken into consideration Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender Related Persecution.2

ALLEGATIONS

[3]       The details of the claimants’ allegations are found in the Basis of Claim (BOC) form narrative.3 In summary, the principal claimant indicates that his family was living in Kuwait for several years. He alleges that because his family was perceived to have lots of money, a neighbour named XXXX XXXX XXXX demanded money from him. Due to the pressure, he agreed to give him some money because of his association with thugs.

[4]       In June of 2019, when the principal claimant refused to lend more money to him, Mr. XXXX became very aggressive, verbally insulted and assaulted the claimant. The principal claimant was threatened and the contents of his apartment were destroyed. He sought assistance from the police and moved but the police took no action. Days later, his son XXXX was kidnapped for ransom by Mr. XXXX who called demanding money for his release or else he would be killed. The principal claimant rushed to the police and filed a report. Once he did, a thug associated with Mr. XXXX called to tell the principal claimant that reporting to the police was a mistake and fruitless. The claimant inferred that this was likely because they had connections to the Muslim Brotherhood. The police took no action so the claimant and his father­ in-law and friends raised money to pay the ransom. They paid the money to the kidnappers. The claimant’s son continues to suffer psychologically from the experience.

[5]       The claimants did not know where else to go because his own family do not agree with his decision not to perform FGM (Female Genital Mutilation) on his daughter. He also adds in his amended narrative that his spouse is fearful of living in Egypt because she will be forced to wear the hijab which she does not wish to do and that she will be subjected to sexual harassment and abuse on the streets. The claimants stayed at a hotel and then flew to Kuwait. Upon arrival there, he was informed that his employer would be terminating his work contract. As a result, he no longer had legal status in Kuwait. The claimant made arrangements and he and his family travelled to the U.S. on XXXX XXXX XXXX XXXX. They did not file claims there due to information they received. Rather, they chose to enter Canada on XXXX XXXX XXXX XXXX.

[6]       Since their arrival, the principal claimant’s father-in-law has been pursued and threatened for money despite his father-in-law’s relocation to Mansoura. His father-in-law moved to Cairo in XXXX of 2019 and kept a low-profile there until he was able to leave Egypt and move to Kuwait. The claimants seek protection in Canada.

ANALYSIS

Personal identity

[7]       The claimants state that they are citizens of Egypt. They provided their Egyptian passports at the time when they filed their claims. Copies are found in Exhibit 1. The panel notes that a U.S. passport was presented for XXXX XXXX XXXX. The claimants indicate that he is a citizen of the U.S. The panel accepts, on a balance of probabilities, their alleged names, dates of birth and citizenships.

Credibility

[8]       The panel found the claimants to be generally credible with respect to the allegations related to the principal claimant. Their testimony was spontaneous, fluid, internally consistent and consistent with the documentary evidence they filed. They provided a number of documents to corroborate their allegations, all of which are found in Exhibit 5. These include: police reports, medical reports, attestations, a photograph and proof of receipt of their documents. Accordingly, the panel determines that their allegations are credible, on a balance of probabilities.

Nexus

[9]       The principal claimant states that he fears a neighbour named XXXX XXXX XXXX who is associated with thugs and the Muslim Brotherhood. He fears this individual because he refused to continue to lend him money which he states then led to his son’s kidnapping for ransom. Upon being informed that this individual has connections with the police, the principal claimant believes that he is well-connected through the Muslim Brotherhood. The panel determines that this falls within the ambit of section 97 of IRPA.

[10]     The principal claimant states that he feared relocating to his own family’s location because they would want him to perform FGM on his daughter. The panel finds that this fear falls within the ambit of section 96 of the IRPA.

[11]     In his amended BOC narrative,4 the principal claimant states that his spouse only covers her hair with a hijab when she is in Egypt because of her family’s strict expectations and customs and also because she would be subjected to sexual harassment or abuse on the street if she did not wear a hijab. The panel finds that this also falls within the ambit of section 96 of the IRPA.

Subjective Fear – Failure to Claim in the U.S.

[12]     The claimants arrived in the U.S. with valid U.S. visas on XXXX XXXX XXXX XXXX. They remained in the U.S. for 4 days before arriving in Canada on XXXX XXXX XXXX XXXX. They indicate that they had heard that the U.S. did not look upon Muslims favourably and separated children from their parents.

[13]     The panel notes that the claimants (apart from XXXX who is a U.S. citizen) were in possession of valid visas during their 4 days in the U.S. The panel notes they relied on information they heard to determine that filing their claims in Canada was preferable. The panel finds that they did not remain in the U.S. for a lengthy period, were in possession of valid visas at the time, and intended to come to Canada. Accordingly, the panel determines that their actions are insufficient to impugn their subjective fear.

Claim based on FGM (Daughter)

[14]     The principal claimant indicates that he cannot relocate to live with his own family in their village because his own family would forcefully impose FGM on his daughter.

Documentary evidence and Assessment of FGM in Egypt

[15]     The claimants submitted evidence on FGM in Egypt.5 Similar to an excerpt in the claimant’s own disclosure,6 the NDP refers to FGM being illegal in Egypt, that actual criminal convictions have been ordered for some practitioners of FGM in Egypt, to a prison sentence and fines ordered, the law has increased prison sentences, a fatwa has been issued declaring FGM un-Islamic, and the practice of FGM is in decline in Egypt, although it is reported that a majority of women still have traditional FGM done in Egypt.7 This evidence does not support the allegation that the minor claimant, in the particular circumstances of the claimants where both parents do not want FGM performed, would be forced to undergo FGM in Egypt, if they did not want it.

[16]     In reaching this determination, the panel has been mindful of the principal claimant’s beliefs that his extended family (aunts and uncles) would impose it. He refers to an incident in 1999 (a year after his father passed away), more than 20 years ago, when his paternal and maternal uncles took his sisters and forced FGM on them. He indicated that both of his parents have now passed away, but he believes his uncles and aunts would insist upon it for his daughter. The panel notes that this incident in 1999 after his father died was considered in light of all of the evidence, the panel finds that the circumstances have vastly changed since that time given the change in the law in 2008 and its implementation. Accordingly, the panel does not find the fear of FGM to be a credible or well-founded one.

Claim Based on Gender in Egypt (Female Claimant and Daughter)

[17]     The female claimant, XXXX XXXX XXXX XXXX, states in the amended BOC at Exhibit 7 that she is fearful for herself and her daughter, XXXX XXXX XXXX XXXX XXXX, because of verbal assaults, harassment and mistreatment that she received and fears her daughter would receive in Egypt. The documents in the National Documentation Package for Egypt (NDP)8 mention discrimination, harassment and violence against women in Egypt.

[18]     Regarding violence or attacks against women outside of domestic or family violence, in the amended narrative found in Exhibit 7, the principal claimant added reference to his spouse not wishing to wear the hijab in Egypt and fearing sexual harassment on the street if she chooses not to wear one in Egypt.9 The panel notes that wearing a hijab is not mandatory by operation of law in Egypt. The harassment the female claimant states she has been exposed to in Egypt occurred when she wore a hijab. She stated that she feels forced to wear one because of harassment. She stated she does not wish for her daughter to wear a hijab either.

[19]     According to the United Kingdom Home Officer report in the NDP:10

8.1.1 The 2017 DFAT report observed that:

‘Sexual harassment is a frequent occurrence for women across the socioeconomic spectrum. A 2013 UN Women study found 99.3 per cent of Egyptian women had experienced sexual harassment, while 91.5 percent reported experiencing unwanted physical contact. Sexual harassment was found to be particularly prevalent during mass street celebrations such as religious feasts, or political demonstrations. The study found that most sexually assaulted women would not report the crime to the police or tell their families.’45

8.1.2 The USSD reported sexual harassment as a serious problem and that ‘Media and NGOs reported sexual harassment by police was also a problem, and the potential for further harassment further discouraged women from filing complaints’.46

[20]     According to another NDP source:

[… ]a study conducted by the Egyptian Center for Women’s Rights that “showed that a woman’s dress had no effect on whether she was molested; in fact, the majority of victims were veiled.11

[21]     The same source further states:

According to a poll conducted by the Thomson Reuters Foundation, in which 336 gender experts in 21 Arab League states as well as Syria were surveyed, Egypt is “the worst country in the Arab world to be a woman” (Thomson Reuters Foundation 12 Nov. 2013). The report states that sexual harassment contributed to this ranking (ibid.).

The same source quotes a representative from HarassMap as saying that women “regularly ‘have to fight with the police to actually make the report, in the street, and at the police station'” (ibid.).

[22]     A New York Times article submitted by the claimants via their counsel states:12

A 2017 survey by two groups that promote gender equality, Promundo and UN Women, found that sexual harassment is rampant on Egyptian streets, particularly in urban areas. More than 60 percent of Egyptian men reported in the survey that they had sexually harassed a woman or girl on the street, and more than three-quarters of male respondents cited a woman’ s “provocative” dress as a legitimate reason for harassment. And in a 2013 study by UN Women, 99.3 percent of Egyptian women and girls in a survey said they had been the victims of some kind of sexual harassment, from unwanted advances to rape. Ms. Orman [a human rights lawyer in Cairo] said the proliferation of security cameras in Cairo may have helped discourage some sexual assaults in the city, but the problem remains common at festivals and other large public gatherings. She said the civil and legal authorities across Egyptian society still need to take the issue more seriously.

[23]     The panel notes that the female claimant’s personal circumstances are highly relevant in the panel’s assessment as to what she has experienced or would experience upon return to Egypt as well as her daughter. The female claimant testified to being mistreated in public, even while wearing a hijab. She testified that there is a culture or tradition of viewing women without a hijab as “sluts”. She stated that while there is no law requiring her to wear a hijab, she wears one because she believes it would be worse for her if she did not. She testified to “always” receiving verbal assaults. When asked to clarify, she referred to women wearing a tight hijab refusing to talk to her. When asked about approaching the police, she stated that if she did, they would tell her that she is the cause of the harassment. She stated that there is no protection nor safe place to reside.

[24]     The panel finds the female claimant’s statements to be credible and trustworthy and consistent with the objective documentary evidence. However, the panel finds that verbal accosting by women wearing tight hijabs does not amount to persecution, even on a cumulative basis. The female claimant neither testified to being the subject of sexual harassment in the past, nor did she refer to having experienced it in the past in her BOC narrative amendment at Exhibit 7. Given the documentary evidence cited above which states that the absence or presence of a hijab is not determinative in how a woman is treated, the panel finds that while she may feel she cannot wear a hijab, she has not established that she has been persecuted nor would be on this basis in Egypt. Accordingly, the panel finds that she has not established that she or her daughter would be persecuted on this particular basis in Egypt.

Claim based on Section 97 Fear- Well-Foundedness, State Protection and IFA

Well-Foundedness and State Protection

[25]     The principal claimant testified credibly regarding the threats, kidnapping and maltreatment he and his family experienced at the hands of their neighbour who has police connections and who he believes may have Muslim Brotherhood connections. He explained that this individual and his associates have marked him and his spouse’s family as having money because of the time they have spent in Kuwait. He explained that his son was kidnapped for ransom and continues to suffer psychologically as a result. He explained that his father-in-law relocated to Mansoura City, a distance away from Belkas City and was found there by the agent of persecution. Furthermore, he explained that the agent of persecution was informed by an insider at the police station when the claimant filed a police report in Belkas. The agent of persecution persisted in seeking the family and then his father-in-law and the claimant believes it is due to their anger because the claimant reported them to the police.

[26]     The principal claimant testified that he approached the police on more than one occasion and they did not assist him. Rather, they informed the persecutor that the claimant had filed a report. Taking into consideration the objective evidence on rampant corruption in Egypt,13 combined with the claimant’s own efforts to seek state protection, the panel finds that the claimant has rebutted the presumption of state protection in his particular circumstances.

Internal Flight Alternative

[27]     The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam:14

  • The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
  • Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for him to seek refuge there.15

[28]     Both prongs must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with a claimant to show that they do not have an IFA. The finding of an IFA must be based on an analysis of the region proposed, taking account of a claimant’s personal circumstances. An IFA must be realistic and attainable. The claimant cannot be expected to encounter great physical danger or undergo undue hardship in travelling there and staying there.

[29]     The Australian Government confirms that the Egyptian constitution guarantees freedom of movement, residence and emigration and there is no legal impediment to internal movement.16 The UK Home Office Country Information and Guidance report for Egypt states that where the person fears non-state agents internal relocation is likely to be reasonable but “will depend on the nature and origin of the threat, as well as the person’s circumstances and profile.17

[30]     The panel proposed the cities of Cairo, Port Said and Alexandria as potential IFAs. Taking into consideration the particular circumstances of the claimants at hand, the panel determines that they have met the burden of demonstrating that there is no viable internal flight alternative for them in Egypt. In the case at hand, the agent of persecution was both motivated and able to successfully locate the claimant, abduct his son and locate his father-in-law and continue threatening him beyond Belkas City. The agent of persecution was also able to learn that the claimants had filed police reports.

[31]     Based on the actions of the agent of persecution and their determination to seek out the claimant and his family in retribution for approaching the police, being able to reach and locate members of the family in different regions, the panel determines that the claimants have, in their particular circumstances, demonstrated that they cannot relocate to other parts of Egypt safely. Therefore, the panel finds that a viable IFA is not present for them in Egypt.

Claim of U.S. Minor

[31]     The claimants indicated that they have no section 96 or section 97(1) claim against the U.S. on behalf of the minor child, XXXX XXXX XXXX. Accordingly, the panel determines that as he is a citizen of the United States, he is neither a Convention refugee nor a person in need of protection.

CONCLUSION

[32]     Having considered all of the evidence, the panel determines that there is not a serious possibility that the claimants would be persecuted in Egypt as per section 96 of the IRPA.

[33]     The panel does find, on a balance of probabilities, that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX, would be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment in their country as per section 97. Their claims are accepted.

[34]     The panel further finds that XXXX XXXX XXXX, a citizen of the U.S., is neither a Convention refugee nor a person in need of protection. His claim is rejected.

(signed)           D. WILLARD

July 10, 2020

Immigration and Refugee Protection Act, S.C. 2001, c. 27 (as amended).

2 Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration and Refugee Protection Act, Effective date: November 13, 1996.

3 Exhibits 2 and 7.

4 Exhibit 7, Claimant’s Documents, Amended Narrative, Lines 74-80.

5  Exhibit 6, Claimants’ Disclosure, Country Condition Documents, pages 1-5 and 8-21.

6 Exhibit 6, Claimant’s Disclosure, The Daily Mail “Girl 12, dies after genital mutilation in Egypt as her parents and the doctor are arrested over illegal practice” at page 1W.

7 National Documentation Package, Egypt, 30 September 2019, tab 5.10: Country Policy and Information Note. Egypt: Women. Version 2.0. United Kingdom. Home Office. June 2019.

8 Exhibit 3, NDP for Egypt, version September 30, 2019.

9  Exhibit 7, Claimant’s Documents, Amended BOC Narrative, lines 74-80.

10 Exhibit 3, National Documentation Package, Egypt, 30 September 2019, tab 5.10: Country Policy and Information Note. Egypt: Women. Version 2.0. United Kingdom. Home Office. June 2019.

11 Exhibit 3, National Documentation Package, Egypt, 30 September 2019, tab 5.1: Treatment of women who do not conform to Muslim practices and traditions, including wearing a veil (head covering), in rural and urban areas; state protection available to victims of mistreatment (June 2013-November 2014). Immigration and Refugee Board of Canada. 26 November 2014. EGY105005.E.

12 Exhibit 6, New York Times, “Video Showing Sexual Assault by Mob in Egypt Draws Outrage”, page 6.

13 Exhibit 7, Claimant’s Documents, pages 22-35 and Exhibit 3, NDP for Egypt version September 30, 2019, Item 2.1 United States Department of State Report for 2018 on Egypt.

14 Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1 FC 706.

15 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1994 1 FC 589.

16 Exhibit 3, Archive – National Documentation Package, Egypt, 30 September 2019, tab 1.4: DFAT Country Information Report: Egypt. Australia. Department of Foreign Affairs and Trade. 17 June 2019, page 44, section 5.32.

17 National Documentation Package, Egypt, 30 September 2019, tab 1.5: Country Information and Guidance. Egypt: Background information, including actors of protection and internal relocation. Version 2.0. United Kingdom. Home Office. July 2017.

Categories
All Countries Nigeria

2021 RLLR 5

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

DECISION

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

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

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

Allegations

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

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

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

Determination

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

Analysis

Identity

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

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

S. 97 Analysis

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

Credibility

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

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

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

Country Condition Evidence

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

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

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

State Protection

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

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

Internal Flight Alternative

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

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

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

Conclusion

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

(signed)    David Jones

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