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 – – – – – – – – – –

Categories
All Countries Colombia

2020 RLLR 141

Citation: 2020 RLLR 141
Tribunal: Refugee Protection Division
Date of Decision: February 3, 2020
Panel: Isis Van Loon
Counsel for the Claimant(s): Simon Trela
Country: Colombia
RPD Number: VB9-03954
Associated RPD Number(s): VB9-03929, VB9-03968, VB9-04026, VB9-04033, VB9-04034
ATIP Number: A-2021-01106
ATIP Pages: 000158-000162

DECISION

[1]       MEMBER: [XXX] the principal claimant, [XXX] and [XXX] her adult sons, [XXX] her adult daughter and the mother of and designated representative for the minor claimants [XXX] and [XXX] seek refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintained the designation of [XXX] as the designated representative for the two minor claimants pursuant to subsection 167(2) of the Act and Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules.

[2]       The claimants allege that FARC will murder them if they’re returned to Colombia because they’ve refused to pay the FARC’s extortion demands. The FARC has murdered the principal claimant’s uncle on [XXX] the [XXX] 2018 after their first written demands for payment were not met. I find the claimants have established on a balance of probabilities that they would personally be subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment upon return to Colombia. My reasons follow, the claimants’ identities and citizenship as nationals of Colombia were established by their testimony and the supporting documentation filed, including certified true copies of their passports in Exhibit 1.

Credibility

[3]       When a claimant swears to the truthfulness of certain facts, there is a presumption that what they have said is true, unless there’s sufficient reason to doubt the truthfulness. The claimants testified in a straightforward manner with no inconsistencies in their testimonies or contradictions between their testimonies and other evidence before me. I found the adult claimants to be credible witnesses and therefore accepted as true the facts that they have alleged in support of their claim. The minor claimant’s-­, actually one did testify a little bit, the other one did not testify. The claimants provided the following relevant and prohibitive documents in their Exhibit 4. Their corporate documents showing the family owned the [XXX], a [XXX] corporation located in Bogota. Their two threatening letters referred to as pamphlets from the FARC dated [XXX] of 2018 and [XXX] of 2019. There are various reports of crime-, of the crime related to the FARC to the police, including the ones made after [XXX] 2018 and on [XXX] 2019. As well as the homicide investigation documents from the police with respect to the murder of the uncle and these include photos and a description of gun-, of his cause of death as a gunshot wound to his face. There’s a copy of the-, of an advice letter from the Minister of Defense from [XXX] of 2019, which is outlining to the claimants steps that they personally should take to try to be safe.

[4]       There’s a dep-, depositions from three former employees that state that they were aware that the FARC had been threatening their employers and the FARC also demanded extortion payments from the workers. I found these documents were relevant and served to corroborate the claimant’s allegations that the family owned a company that was being extorted by the FARC. That they refused to pay the demand and reported the crimes to the police and that their uncle had been murdered for failure to pay the FARC. Victims of crime corruption or vendettas  generally cannot establish a link between their fear of persecution and one of the Convention grounds. Although the claimants are clearly politically opposed to the FARC, they were not targeted by the FARC on the basis of their political opinion, but they were targeted for criminal extortion. So, there is no information before me indicating that FARC targeted the claimants by reasons of a Convention ground and accordingly I’ve assessed these claims under Section 97(1) of the Act.

[5]       In order to be considered a person in need of protection under Section 97(1), claimants must demonstrate on a balance of probabilities that they would be subjected personally to a risk to their life or a risk of cruel and unusual treatment or punishment if they’re returned to Co-, Columbia in this case. In addition, in accordance with 97(1)(b)(ii), the risk that the claimant faces must not be one that is faced generally by other individuals in or from Colombia. The claimants have established that they’ve personally been targeted by the FARC group, in fact, the first FARC threat in the form of a pamphlet specifically named the principal claimant, her adult sons, and daughters, and includes the children that is her grandchildren, the minor claimants, in that first pamphlet. The risk the claimants face, I find, is unique to them and it’s significantly greater than the risk faced by others generally within Colombia. On [XXX] of 2018, the first threatening extortion pamphlet from the FARC was delivered to the claimants while they were en route to their summer place about four hours from Bogota. Two men on motorcycles stopped them in their car about an hour away from this summer house to deliver the threat, on [XXX] they noticed motorcycles around their business in Bogota and they informed the police. They also informed police of the first threat, the claimants went to hide at their summer house on [XXX] around 7 o’clock that evening, armed men came to demand the extortion payment and their uncle refused and they murdered him and threatened the entire family, if the payments weren’t made. The claimants reported this to the police and a homicide investigation was opened, the claimants received a number of threatening phone calls over time, where people identifying themselves as being from the FARC, said the claimants should pay or be killed like the uncle and there was nowhere they could hide. And the FARC gave specific details about the family that made the family believe that the FARC was monitoring them.

[6]       The claimants attempted to hide in [XXX] from [XXX] to [XXX] of 2019, this is the same province as the city of [XXX]. They continued to receive threats and warnings to pay, they then returned for a short time to Bogota, never staying long in one place, as there were legal documents with respect to the business that had to be signed. On [XXX] 2019 they received a second pamphlet from the FARC which named them as military objectives and warned their employees and they-, sorry they warned their employees, closed the business, and went to the police that same day to report this new threat. The police warned them that as the threats specified they were now considered FARC military objectives, there is nowhere safe in Colombia and they should leave the country. The police did provide them advice on how to be safe but essentially, it’s a self-protection type of advice that was provided, such as avoiding travel routines, routes used for transportation, et cetera, carry with you an effective device of communication, if you’re at a traffic  light, when you’ve had to stop or stop signs et cetera, look around to see if there’s anything suspicious and be ready to keep driving, and share these safety measures that you adopt yourself with your-, your family.

[7]       So clearly, the police themselves were not willing or able to more than to just give advice on what the claimants themselves could do to try to stay safe. The claimants fled to hide with a friend in Cartagena, the designated rep for the two minor claimants, their mother, was separated from her former husband and it took some time for her to locate him and get his permission to take the minor claimants out of the country. This delayed the family’s departure, they received the authorization from the ex-husband on [XXX] the [XXX] of 2019 and left for Canada on [XXX] of 2019. The minor claimant’s mother said that she had notarized documents giving her ex-husband’s permission to remove the children from the country and that it’d been necessary for her to show these documents while exiting Colombia and entering Canada. She did not have these notarized documents with her at the hearing but offered to provide them as she had them at home in Canada. On a balance of probabilities, I am satisfied that she did have authorization from the minor claimant’s father to take the two minor claimants out of Colombia.

[8]       The NDP 7.2 talks about the criminal groups and says that they pursue function of ter-, functions of territorial, social and economic control exerted by violent means. Their activities include murders, smuggling, drug trafficking, kidnapping, human trafficking and so on. They’re known to establish illegal checkpoint, enter private homes, and monitor private communications. NDP 7.18 states that initially the November 2016 peace process with the FARC brought over 11,000 members back to civilian life. At that time there were around 1,000 FARC dissidents who refused to cooperate and were acting in fact as de facto rulers in their desperate territories. Despite their origins, many of these dissident groups were even more abusive than the predecessors as they compete among themselves, sometimes brutalizing local communities to maintain their control. After the peace accord, the situation has worsened and there are more FARC members leaving the peace process, in spite of a concerted effort by the Colombian government with over 10 billion in U.S. assistance over the past 15 years. The rebel FARC group still operated in a large proportion of Colombia’s 32 departments and currently was estimated to have about 8,000 gorillas in its ranks, and this is more, this is a post peace accord document NDP 4.5. I note also maps showing dissident elements of FARC scattered throughout the country and NDP 1.2 stated that following the demobilization of the FARC in 2017 dissidents formed groups throughout Colombia. So, there’s plenty of evidence that indeed these FARC dissident groups are operational widely in Colombia.

[9]       NDP 7.21 states that the FARC is known to issue threats declaring people military objectives. When a person is declared a military objective, it means that they’ve been issued a threat to be killed. When a person is a military objective their life, physical integrity, and freedom are endangered and this threat also extends to their family. These declarations can come in many forms, including the pamphlets or-, or essentially, they appear to be letters from the FARC, that the claimants received. Based on the claimants’ testimony and supporting documents and the country conditions documents, I’m satisfied on a balance of probabilities the claimants would be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment at the hands of the dissident FARC if they return to Colombia.

[10]     Now except in situations where state is in complete breakdown, states are presumed capable to protect their citizens. To rebut this presumption the onus is on the claimant to establish on a balance of probabilities with clear and convincing evidence that their State’s protection is inadequate. So, we look at country documentation, it states that a citizen, not in a position of power or in the judiciary, might not receive protection from the police or other forces, this is NDP 7.21. The a-,which is a response to information request from the IRB, one of the people the IRB spoke to was an assistant professor who said relocation within Colombia is not an option for those who’ve been declared a military objective because paramilitary and guerilla structures have extended vertical organizations and large networks. As previously discussed, the FARC has wide reach in the country despite the State’s efforts, after they received the first FARC pamphlet and reported it to the police, the claimant’s uncle was murdered and the murder has not been solved. The FARC was able to locate the claimants in a number of places previously, the claimants describe how they were advised by police to leave the country after they were declared military objectives in the second pamphlet from the FARC. And this is in line with the country documentation that states that there is nowhere internally they can relocate and this would be despite the fact that there is a functioning state with some degree of state protection. The claimants also provided an Exhibit for that copy that I’ve referred to previously on the standardized advice police give to people at risk such as the claimants and it’s basically just self-care. The claimants had already been taking similar measures before they received the second pamphlet from the FARC, while stopped at an intersection in Bogota.

[11]     Satisfied on a balance of probabilities that the State of Colombia is unable to provide adequate protection to these claimants, if they return to Colombia and accordingly, I find that there is no adequate state protection for these claimants. Now, an internal flight alternative arises if a claimant who otherwise meets all the elements of a definition of someone who needs protection in their home area of a country, nevertheless, couldn’t-, could live safely elsewhere in that country and therefore would not be in need protection. There is a legal test which has two prongs, on the first prong I’d have to be satisfied that there would be a place in the country where the claimants could safely relocate. As well, conditions in that part of the country would have to be such that they weren’t unreasonable, in all circumstances, including those particular to the claimants for them to go there and seek refuge there. Well, the FARC has shown persistence in tracking these claimants over a period of time, twice finding them while traveling on the roads, and the FARC have indicated that they have details about the family members. Furthermore, they did not hesitate to kill the uncle when he refused their extortion demands, I’m satisfied that FARC has both motivation and means to harm the claimants. Furthermore, the country documents as previously discussed, shows that FARC is widely active in Colombia in spite of the 2016 peace accord. As well, the country documents previously discussed showed that for those declared military objectives, as these claimants have been, there is no viable IFA. They are not safe anywhere in Colombia.

[12]     Therefore, I find on a balance of probabilities, the claimants would be subjected personally to a risk of life or a risk of cruel and unusual treatment or punishment, if returned to Colombia. And accordingly, I’ve accepted their claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Jordan

2020 RLLR 135

Citation: 2020 RLLR 135
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: L. Bonhomme
Counsel for the Claimant(s): Talia Joundi
Country: Jordan
RPD Number: TB9-13034
Associated RPD Number(s): TB9-13090, TB9-13117, TB9-13128
ATIP Number: A-2021-01106
ATIP Pages: 000118-000127

REASONS FOR DECISION

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

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

Determination

[3]       The panel finds the principal claimant to be a person in need of protection within the meaning of s.97(1) of the IRPA.

[4]       The panel does not find the associate claimant or minor claimants to be Convention refugees or persons in need of protection.

Allegations

[5]       The details of the claimants’ allegations are more fully set out in the principal claimant’s Basis of Claim Form (“BOC”) and amended BOC.[2] In short, the principal claimant’s cousin murdered a teenaged neighbour belonging to another tribe. As a result, the principal claimant and his family are being pursued for a revenge killing by the tribe.

[6]       The oldest minor claimant, [XXX], is a citizen of the United States of America. The claimants do not make any allegations against the United States of America.

Analysis

Identity

[7]       The principal, associate and youngest minor claimants’ personal identities as citizens of Jordan have been established by the principal claimant’s testimony and the certified true copies of their Jordanian passports and Canadian visas on file.[3]

[8]       The panel finds on a balance of probabilities that the principal, associate and youngest minor claimants are who the say they are and that the country of reference for them is Jordan.

[9]       The personal identity of the oldest minor claimant, as a citizen of the United States of America, has been established by the principal claimant’s testimony and the certified true copy of his passport issued by the United States of America on file.[4]

[10]     The panel finds on a balance of probabilities that the oldest minor claimant is who he says he is and that a country of reference for this claimant is the United States of America.

Credibility

[11]     The determinative issue in this claim is credibility. In making this assessment, the panel has considered all the evidence, including the oral testimony and documentary evidence entered as exhibits as well as post-hearing disclosure. The principal and associate claimants both testified and although there were some inconsistences between the principal claimant’s testimony, the BOCs, and the documentary evidence, the panel finds that there is sufficient documentary evidence and credible testimony going to the core of the claim to overcome the inconsistencies.

[12]     The claimants allege in the BOCs that in [XXX] 2016, the principal claimant’s cousin, [XXX] murdered a seventeen year old named [XXX] by shooting him with a gun resulting in his death eight days later. The cousin and the victim were neighbours in the [XXX] neighbourhood of Irbid. The claimants submitted two news articles closely corroborating the details of the murder, including the timing and location and naming the individuals involved.[5]

[13]     However, the panel does note that there are some inconsistencies between the news sources’ accounts of the aftermath and the claimants’ testimony and BOCs.  According to the news reports, the cousin’s [XXX] and the tribe’s hosting place were burned that day, after the victim’s death was announced.  According to the BOCs, the principal claimant began receiving weekly phone threats which increased over time and both he and the associate claimant received warnings from neighbours of threats against their lives. At some point, the principal claimant received face to face threats while working, as his job involved [XXX] in the [XXX] neighbourhood.  The BOCs allege that the threats turned into action around [XXX] 2016 when the cousin’s store, the clan’s reception home, and the cousin’s brothers’ homes were set on fire. The BOCs do not mention any fires before that time.

[14]     At the hearing, the principal claimant testified that he learned of the shooting that same day as tribe members started to burn things and fire shots. When asked for specifics of what was burned, the principal claimant listed the cousin’s house, two reception homes, and stores.  The fires went on for a week after the shooting and after the victim died. This was repeated in [XXX]. When asked to explain this, the principal claimant described how tribe members would set fire to the building, burn it, put out the fire and then burn it again.  The principal claimant was asked why he did not indicate in his BOCs that the fires happened the same day as the shooting and he responded that he did not know. When asked why the BOCs only mention fires in [XXX] 2016, the principal claimant responded that the fires increased then. Although the panel does not find that the principal claimant’s explanations are compelling, the panel accepts that there were some fires related to the murder.

[15]     Aside from the timing of the fires, both claimants’ testimony was consistent with the BOCs and with one another. The principal claimant was able to adequately describe in detail the threats he received, both on the phone and in person, and how they changed over time. Furthermore, the claimants have produced a number of documents corroborating various aspects of their claim.

[16]     The principal claimant alleges in his BOCs that he is being targeted because he was particularly close with his cousin and in his testimony, he added that he is a young man distinguishable in the town. The principal claimant is university educated and active in the humanitarian field, having been employed for several years with the [XXX], and later the [XXX]. The claimants submitted a certificate indicating the principal claimant was awarded a [XXX] of [XXX] in 2009 and letters confirming his employment with the [XXX] from [XXX] 2013 to [XXX] 2017 and with the [XXX] from [XXX] 2017 to [XXX] 2018.[6] The claimants submitted a letter from the principal claimant’ s father expressing his fear for his son’s life and that his son’s life is particularly being threatened due to his relationship with the perpetrator of the shooting.[7] The claimants also submitted a letter from the leader of the [XXX] tribe dated [XXX] 2019 confirming the risk of revenge killing to the family members of [XXX] generally, including the claimants.[8]

[17]     The claimants allege that the motivation for the agents of persecution to pursue them increased when another local tribe enacted a revenge murder against another tribe in a similar blood murder situation, a year (in [XXX] 2018) after a sulha (truce) had been reached. The claimants submitted newspaper articles from [XXX] 2017 describing a truce between the two tribes due to the killing of one of the tribe members after a parking dispute. The claimants also submitted a travel advisory from the U.S. Embassy in Jordan in 2017 recommending that U.S. citizens avoid travel to the [XXX] area in Irbid due to violent incidents, including arson and fatalities in [XXX] 2017.[9] At the hearing, the principal claimant explained how word had spread that another tribe had exacted revenge whereas the [XXX] tribe had not yet done so. He testified convincingly that his fear was heightened as a result.

[18]     The claimants resided in the [XXX] neighbourhood. According to the principal claimant’s testimony, it was about a one to two minute walk from where the murder occurred. The claimants moved on at least two occasions to try to ensure their safety; however, the threats followed them. The claimants submitted two tenancy contracts: one from [XXX] 2016 to [XXX] 2017 for an [XXX] address and the other from [XXX] 2018 for an address behind the [XXX] Hospital and close to [XXX] College.[10]

[19]     The claimants alleged that in [XXX] 2019, threatening messages to the principal claimant were received on Facebook and that the principal claimant’s brother continues to receive threats. The claimants submitted communications to the principal claimant from “[XXX]” and from the principal claimant’s brother corroborating this allegation.[11]

Objective Basis

[20]     Sources in the National Documentation Package for Jordan confirm that revenge is part of tribal practices, including revenge killing. According to an article entitled, “Tribal Customary Law in Jordan,” when a murder takes place in a village, the male members of the victim’s family have the right under Bedouin law to murder a male member of the perpetrator’s family. The victim’s family will often choose the most respected member of the perpetrator’s family so as to bring shame on the perpetrator within his own family.[12]

[21]     Counsel for the claimants submitted numerous news articles attesting to the current prevalence of revenge practices in Jordan, including killings and retaliatory fire-setting.[13]

[22]     In considering the mostly credible testimony from the principal and associate claimants, the ample corroborating documentary evidence, and the country conditions, the panel believes what the claimants have alleged in support of the claim in relation to the principal claimant and finds that a personal risk to the principal claimant’s life of a revenge killing by the [XXX] tribe in Jordan is established, on a balance of probabilities.

[23]     The panel finds that there is not sufficient credible and trustworthy evidence to establish on a balance of probabilities that there is a personal risk to the lives, or risk of cruel and unusual treatment or punishment, of the associate and youngest minor claimant. There is no evidence of any threats to the youngest minor claimant, a two year old girl. The principal claimant testified emphatically that the tribe would not pick a child to exact revenge upon. The only evidence in relation to the associate claimant are warnings from neighbours of hearing of threats against their lives which the panel finds to be too vague. The principal claimant’s own evidence was that he was specifically targeted due to his relationship with his cousin, his gender and profile in the community, clearly distinguishing him from his wife who is not alleged to have enjoyed a similar relationship with the cousin. There is no evidence in the country conditions of females being targeted for revenge killings for murder.

[24]     The panel does not find that there is any evidence of a nexus to a Convention ground in relation to the associate claimant and youngest minor claimant and therefore the panel finds that the associate claimant and youngest minor claimant are not Convention refugees.

State protection

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

[26]     The claimants’ evidence was that the principal claimant consulted with some friends who work in the police force and was told there was nothing that could be done because he could not be given a personal security guard. The claimants submitted a document from the police directorate in Irbid dated [XXX] 2016 indicating that the principal claimant had requested protection for himself and his family from the [XXX] tribe but that he could not be provided with private protection and that if the identities of the individuals making the threats was known, further steps could be taken.[14]

[27]     In this case, tribal dispute resolution was invoked; however, the process was ineffective to the principal claimant. The claimants submitted a document that was translated as “deed of tribal truce by admission” issued February 3, 2016 describing a ja’ha between the Al-Rawabdeh tribe and the Al-Irjoob tribe due to the shooting on January 23, 2106 of Ayhan Ali Salah Al-Rawabdeh by Ibrahim Saleh Abdelhafiz Al-Irjoob.[15]

[28]     Sources in the National Documentation Package indicate that although tribal law in Jordan was abolished in 1975, tribal dispute resolution has come to forma prevailing part of the Jordanian culture and customs, despite the fact that it no longer constitutes a part of the Jordanian legal system. This is especially so in relation to blood crimes, honour crimes and conflicts between families.[16] In practise, the legal system defers to tribal customs and practises. Although the tribal dispute resolution process operates outside of and alongside the legal system, the state is often complicit and even active in tribal dispute resolution processes (e.g. police often supervise jalwa, atweh may be supervised by state security forces, state-appointed officials may form part of a jaha, state or members of the royal family may act as waseet).[17]

[29]     Based on the evidence before the panel, the panel finds that in this case the state is unwilling or unable to protect the principal claimant effectively.

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

Internal Flight Alternative

[31]     The panel has also considered whether a viable internal flight alternative exists for the principal claimant. Jordan is a small country. The tribe pursuing the claimants is a powerful and politically influential tribe, counting a former Jordanian Prime Minister as a member. Although the tribe is based in [XXX], members live outside the village. Given the profile of the tribe, the agents of persecution would likely have no difficulty being able to locate the principal claimant throughout the country.

[32]     The panel finds that, on a balance of probabilities, the principal claimant’s life would be at risk throughout Jordan and therefore finds that there is no viable internal flight alternative.

Conclusion

[33]     Based on the totality of the evidence, the panel finds the principal claimant to be a person in need of protection from Jordan and therefore his claim is accepted. The panel finds that the associate claimant and youngest minor claimant are not Convention refugees or persons in need of protection from Jordan and therefore their claims are denied.

[34]     The claimants did not make any allegations of persecution, risk of persecution or risk to life or cruel and unusual treatment or punishment in relation to the United States of America in the BOCs. When asked at the hearing what the principal claimant feared for his son in the United States of America, the principal claimant responded that when they lived there, two Muslim girls and a young man were murdered close to where they were living in North Carolina. The principal claimant alleged that it was a racist crime. Without any other evidence, the panel does not find that there is sufficient credible or trustworthy evidence to establish that the oldest minor claimant would face a serious possibility of persecution, nor on a balance of probabilities would he face a risk to life or qa risk of cruel and unusual treatment or punishment or a danger of torture, if he returned to the United States of America.

[35]     The panel finds that the oldest minor claimant is not a Convention refugee or a person in need of protection from the United States of America and therefore his claim is denied.


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

[2] Exhibit 2: Basis of Claim Form (BOC) TB9-13034 and Exhibit 11: Amended Basis of Claim Form (BOC) TB9-13034 dated January 10, 2020.

[3] Ibid.

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

[5] Exhibit 9: Claimant’s personal documents received January 5, 2020.

[6] Exhibit 8: Claimants’ disclosure package received January 3, 2020 (personal documents X2 and country conditions X1).

[7] Exhibit 12: Claimants’ late disclosure (personal document).

[8] Exhibit 8: Claimants’ disclosure package received January 3, 2020 (personal documents X2 and country conditions X1).

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Exhibit 6: National Documentation Package for Jordan version August 2019, Item 9.1.

[13] Exhibit 10: Claimants’ disclosure package received January 10, 2020 (personal documents X1 and country conditions X1).

[14] Exhibit 8: Claimants’ disclosure package received January 3, 2020 (personal documents X2 and country conditions X1).

[15] Exhibit 10: Claimants’ disclosure package received January 10, 2020 (personal documents X1 and country conditions X1).

[16] Exhibit 6: National Documentation Package for Jordan version August 2019, Item 9.1.

[17] Ibid, Item 5.10.

Categories
All Countries Mexico

2020 RLLR 119

Citation: 2020 RLLR 119
Tribunal: Refugee Protection Division
Date of Decision: July 7, 2020
Panel: Camille Theberge Ménard
Counsel for the Claimant(s): Mabel E. Fraser
Country: Mexico
RPD Number: MB7-12502
Associated RPD Number(s): MB7-12711, MB7-12712, MB7-12789
ATIP Number: A-2021-01106
ATIP Pages: 000001-000006

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for decision in the refugee protection claims filed by [XXX] and [XXX], who are alleging that they are citizens of Mexico and who are claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]       [XXX], you were appointed as the designated representative for the minor children.

ALLEGATIONS

[3]       You fear senior leadership of the [XXX] department of the State of Tabasco, Mexico.

[4]       [XXX], you stated that after you were hired, you reported many anomalies and indicators pointing to corruption to your supervisor, whom you trusted. However, she was ultimately cooperating with the individuals you had reported. You stated that you received many veiled threats.

[5]       An altercation then took place on [XXX] 2017, in which your wife was followed in a vehicle and stopped by an armed man who appeared to be a soldier. She stated that he was surprised to see her with a child; she attributed his surprise to the fact that you are the one who usually drives the truck she was using that day.

[6]       You then stated that some men entered the shop run by you and your wife. They asked for you and demanded that you pay them so they could ensure your safety.

[7]       You then lost your job without any justification and you received death threats in connection with your shop, which prompted you to seek refuge in Quintana Roo.

[8]       After arriving there, you received text messages on your cellphone containing death threats. You tried to settle there. However, after a job interview, a company higher-up from Mexico City mentioned you could not be hired due to problems you had had with influential individuals. You again feared even more for your life and your family’s lives and decided to leave the country.

[9]       You believe that you have neither a viable internal flight alternative (IFA) nor access to state protection.

DETERMINATION

[10] I determine that, on a balance of probabilities, you would be personally subjected to a risk to your life or to a risk of cruel and unusual treatment or punishment if you were to return to Mexico, for the reasons that follow.

ANALYSIS

Identity

[11]     I find that your identities have been established by means of your testimony and the copies of your passports filed on the record.[1]

Credibility

[12]     I find that you are credible witnesses; therefore, I believe your main allegations in support of your refugee protection claims.

[13]     Your testimony was sincere and did not contain any relevant inconsistencies. There were no relevant contradictions between your testimony and the other evidence before me that were not satisfactorily explained.

[14]     You indicate in the first version of your written account that the senior leadership, whom you fear, sent you polite messages but you specified during the hearing that they were veiled threats. You explain the content of the messages, with details, in an amended written account filed after you changed lawyers. Given the circumstances in your file, I find that the details you brought forward during the hearing and in the amendment to your written account explain this difference between your testimony during the first hearing and your first written account.

[15]     You also failed to discuss the threatening text messages you received on your cellphone after you arrived in Quintana Roo. You first explained that you had focused on the elements you were able to demonstrate and that there had been a lack of communication between you and your first lawyer. Given the very specific circumstances of your case, the reasons why you were forced to find a new lawyer and the fact that you provided numerous documents to support your allegations as a whole, I find that this omission is reasonably justified.

[16]     As for the documents you filed to support your claims, you filed a note indicating that you had indeed been hired by the [XXX] department. You also filed examples of official letters that you had sent to your supervisor to report the irregularities and acts of corruption that you kept track of at work.[2]

[17]     You also submitted photographs[3] of the shop you ran, as you stated, while you also worked at the [XXX] department. You also provided photographs of the shop’s closing[4] and the threats you stated you received, written across it. Finally, you also filed photographs of the truck[5] in which the female claimant was threatened.

[18]     The panel has no specific reason to doubt the credibility of these documents and finds that they are probative in supporting your allegations of fear.

[19]     In order to establish that you are a “person in need of protection,” you must demonstrate that there is a serious possibility that you would be subjected, on a balance of probabilities, to a risk to your life, to a risk of cruel and unusual treatment or punishment or to a danger of torture if you were returned to Mexico.

[20]     I find that the evidence submitted in support of your allegation establishes that there are, on a balance of probabilities, serious reasons to believe that you would be subjected to persecution or the other alleged harm.

[21]     You received many threats from influential [XXX] department personnel whom you had tried to report. Meanwhile, you were getting visits from criminal group members who were extorting money from you. During the hearing, you indicated that the people visiting your shop addressed you by the title you had at the [XXX] department. You also alleged that these individuals were paid by the influential personnel of the department and you consider that this demonstrates that the area’s criminal groups are connected to the department.

[22]     Not only did those people threaten you and your family, but they also followed your wife while she was driving your truck, which suggests the threats were becoming increasingly serious.

[23]     Furthermore, the objective evidence in the National Documentation Package (NDP) on Mexico confirms that corrupt federal officials and their ties to various criminal groups are a significant and ongoing reality in Mexico.[6]

[24]     The city of Tabasco, where you lived, is in the lowest tier of safe cities, which means it is one of the cities in Mexico with one of the highest crime rates and impunity rates for both crime and human rights abuses.[7]

[25]     I find that it would be objectively unreasonable for you to seek state protection considering the particular facts of your refugee protection claim. In addition to the previously cited documentary evidence confirming the high impunity rate, the individuals who threatened you and whom you fear hold important public administration positions and they therefore have significant influence and resources that enable them to be informed of your undertakings if you were to try to file a complaint against them.

Internal flight alternative

[26]     I also assessed whether you have an IFA available to you. I find that there is nowhere in the country where you would not face, on a balance of probabilities, a risk to your lives or a risk of cruel and unusual treatment or punishment.

[27]     When you sought refuge in Quintana Roo with your family, you continued to receive threatening messages on your cellphone. The content of these messages indicated that the individuals who were looking for you were aware that you had left the area for the location where you were hiding. After that, you tried to find a job in that region and you were told that you must have been having problems with important individuals, because the head office of the company you were applying to had decided not to hire you. This situation demonstrates that your name had been given to an organization, with significant reach beyond the city of Tabasco and influence in Mexico City. That was when you learned that you would not be safe anywhere in Mexico. The panel agrees.

CONCLUSION

[28]     For the above-mentioned reasons and after analyzing all of the evidence, I determine that you are “persons in need of protection” within the meaning of paragraph 97(1)(a) or 97(1)(b) of the IRPA.

[29]     I therefore allow your refugee protection claims.


[1] Document 1 — Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada: passports.

[2] Document 6 — Exhibits P-6 to P-9.

[3] Document 6 — Exhibit P-11.

[4] Document 6 — Exhibit P-12.

[5] Document 6 — Exhibit P-14.

[6] Document 3 — National Documentation Package (NDP), Mexico, August 30, 2019, Tab 2.1: Mexico. Country Reports on Human Rights Practices for 2018, United States, Department of State, March 13, 2019; Document 3 — NDP, Mexico, August 30, 2019, Tab 1.5: Mexico Peace Index 2019, Institute for Economics and Peace, April 2019, page 74/98.

[7] Idem, Tab 1.5.

Categories
All Countries Jordan

2020 RLLR 87

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

REASONS FOR DECISION

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

ALLEGATIONS

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

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

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

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

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

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

DETERMINATION

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

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

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

ANALYSIS

Identity

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

Country of Former Habitual Residence

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

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

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

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

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

Credibility

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

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

Well-Founded Fear of Persecution & Risk of Harm

Principal Claimant – Jordan

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

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

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

Minor Claimant – Jordan

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

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

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

Associated Claimant – UAE

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

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

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

State Protection

Principal Claimant

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

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

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

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

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

Internal Flight Alternative

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

CONCLUSION

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

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


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

[2] Exhibit 1.

[3] Exhibit 1.

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

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

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

[7] Exhibit 3.2, NDP, Item 3.6.

[8] Exhibit 4.

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

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

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

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

[13] Exhibit 3.3, NDP, Item 2.1.

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

[15] Exhibit 3.1, NDP, Item 13.1.

[16] Exhibit 3.1, NDO, Item 2.1.

Categories
All Countries Nigeria

2020 RLLR 64

Citation: 2020 RLLR 64
Tribunal: Refugee Protection Division
Date of Decision: February 26, 2020
Panel: Angelina Guarino
Counsel for the Claimant(s): Eric Freedman
Country: Nigeria
RPD Number: MB8-01156
Associated RPD Number(s): MB8-01171, MB8-01221
ATIP Number: A-2021-00800
ATIP Pages: 000030-000037

REASONS FOR DECISION

[1]       The principal claimant, [XXX], his wife, [XXX] (the female claimant), and their minor child, [XXX] (the minor claimant), are citizens of Nigeria. They are claiming refugee protection in Canada under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]       The panel appointed the principal claimant as the designated representative of his minor child, [XXX].

[3]       The wife and minor child are basing their refugee protection claims on the principal claimant’s written account in the Basis of Claim Form (BOC Form).[1]

ALLEGATIONS

[4]       The principal claimant alleges that he fears his deceased father’s third wife, named [XXX], as well as his police officer half-brother, named [XXX], born from that relationship, who threatened to kill the male claimant and go after his family after he refused to give them the major share of the inheritance from his father.

[5]       According to the will, the inheritance was to be divided equally between all the children of the male claimant’s father, and [XXX] request was very poorly received by the other heirs. Following their refusal, [XXX] threatened to kill the claimant and his brothers and sisters.

[6]       The male claimant also alleges that two of his brothers were killed after receiving death threats from [XXX]. According to the male claimant, it was [XXX] who ensured that her threats were carried out. She was questioned by the police after the death of the male claimant’s brothers because people had witnessed her uttering threats. However, the investigation quickly ended as her son [XXX], a [XXX], intervened to have her released. The male claimant alleges that [XXX] has many influential contacts among the Nigerian authorities and that he is involved in shady dealings.

[7]       Consequently, the male claimant fears that he will be the next victim of violence at the hands of [XXX] and her son owing to this conflict, especially since the issue of the inheritance has not yet been resolved and the other heirs do not want to agree to an unequal split.

DETERMINATION

[8]       The panel concludes that the refugee protection claimants are “persons in need of protection” for the reasons set out below.

ANALYSIS

Identity

[9]       The panel is satisfied as to the refugee protection claimants’ identity, which was established, on a balance of probabilities, by means of the testimony of the adult claimants and by the submission on the record of the certified true copy of their respective Nigerian passports.[2]

Analysis under paragraph 97(1)(b)

[10]     In his BOC Form and during the hearing, the principal claimant stated that he feared being mistreated or even killed because of the conflict with his father’s wife and with his half-brother [XXX], a conflict involving the estate of his deceased father. He also feared that his agents of harm could go after members of his nuclear family, as the threats targeted them as well. Refugee protection claims involving a physical risk from family members in Nigeria because of an inheritance fall under subsection 97(1) of the IRPA since there is no nexus to the Convention.[3]

[11]     It is also clear that, in relation to the claimants’ fears toward Nigeria, this refugee protection claim does not involve any danger of the claimants’ being subjected to a danger of torture within the meaning of paragraph 97(1)(a) of the IRPA.

[12]     The panel has therefore analyzed this refugee protection claim under paragraph 97(1)(b) of the IRPA, that is, whether the claimants would be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they were to return to Nigeria.

Credibility

[13]     The male claimant gave frank and sincere testimony before the panel about the conflict between [XXX] his half-brother [XXX], and himself, regarding the inheritance left by his deceased father.

[14]     First, the male claimant provided detailed information about the way the inheritance was split between his father’s three wives. Subsequently, he explained the reasons that led [XXX] to insist on an unequal  split–according to her, she was his father’s favourite wife–and  stated that she had demonstrated her desire to appropriate the largest share of the inheritance by not hesitating to threaten the other heirs. The male claimant provided details on relationship dynamics within his family and the difficulty he had getting along with his half-brothers on his father’s side.

[15]     The male claimant explained how the threats had escalated over time, with the murder of his two brothers. The male claimant also described the various means he had used to try to resolve the conflict. He testified that he had asked the police to intervene following the murder of his brothers, but said that the investigation had been sabotaged by the intervention of his half-brother, the [XXX]. The male claimant also asked the other heirs to agree to [XXX] demands in order to end the conflict, but they refused. The male claimant indicated that he had finally left the inheritance under the management of a company. This implies not only that it became more difficult for [XXX] and the claimant’s half-brother to appropriate the inheritance, but also that their desire for revenge grew.

[16]     The male claimant testified that, on [XXX] 2017, he moved with his wife and child to the home of an uncle in Ogun State, as he felt that his life was in danger in Lagos. Nevertheless, he was found by men sent by [XXX] and his half-brother [XXX]. On [XXX] 2017, the claimants were informed by neighbours that some men had been asking about them, and it was because of this suspicious visit that the claimants decided to leave Nigeria for good.

[17]     The principal claimant spontaneously answered every question he was asked. His answers were consistent not only with his written account but also with the various affidavits submitted in support of his claim.[4]

[18]     In addition to his credible testimony, the principal claimant provided several pieces of evidence to corroborate his allegations. He submitted into evidence his father’s will,[5] his brothers’ death certificates[6] and posters announcing their funerals,[7] the contract stipulating that the inheritance is being managed by a management company,[8] as well as evidence that his half-brother [XXX] is a [XXX].[9] The male claimant’s attempts to obtain protection from the Nigerian authorities following the murder of his brothers are corroborated by a police report.[10]

[19]     The panel notes that the claimants arrived in the United States on [XXX] 2017. They finally left that country on [XXX] 2018. The principal claimant specified that he did not claim asylum because of the hostile climate toward asylum seekers in the United States. The panel considers this an unreasonable explanation for the failure to claim asylum. Nevertheless, as the claimants had valid status and given the duration of their stay, which lasted a few months, the panel is of the opinion that this behaviour is not determinative to undermine the credibility of the alleged facts taken as a whole.

Objective basis of the fear

[20]     The objective documentation on Nigeria reports that violence related to inheritance issues is common. Indeed, in a European Union report, the Director of the Initiative for Equal Rights in Nigeria states that this is a major problem in Nigeria and that quarrels can happen between several family members; the violence that follows can go as far as killing.[11]

State protection

[21]     Objective documentation indicates that the Nigeria Police Force is perceived as corrupt and ineffective.[12] The reports also highlight problems in the judicial system, which is reported to be short-staffed, underfunded, ineffective, subject to political intervention, corrupt, and lacking training and resources.[13]

[22]     The panel also notes that the male claimant testified that he reported some of the incidents to the police. He submitted a police report[14] into evidence and testified about the time he went to file a complaint. He explained that the police officers questioned [XXX] but that they quickly released her. The male claimant thinks that [XXX] son, [XXX], himself a [XXX], may have bribed the police. The male claimant explained that he knew about his half-brother’s illegal trafficking in cars. The half-brother told the male claimant about his activities and influence within the police when he threatened him.

[23]     For all these reasons, the panel is of the opinion that the male claimant has established, through clear and convincing evidence, that he would not have access to adequate state protection.

Internal flight alternative

[24]     The panel considered the Jurisprudential Guide dealing with the various internal flight alternatives in major cities in southern and central Nigeria for claimants fleeing non-state actors.[15] Having considered the profile of the male claimant’s agents of harm, the analysis in the Guide is not applicable in this case.

[25]     The panel questioned the male claimant about the possibility of relocating to Port Harcourt in order to escape [XXX] and his half-brother [XXX]. Asked to explain why [XXX] and his half-brother would want to find him in the proposed IFA, the male claimant stated that they are motivated by their desire for revenge as well as by the fact that the male claimant is the last male heir standing in the way of management of the inheritance passing into the hands of his half-brother [XXX]. Asked about the ability of [XXX] and his half-brother to find him in Port Harcourt, the male claimant answered that, regardless of where he went in Nigeria, his agents of harm would be able to find him because of his half-brother’s duties as a [XXX] and his access to personal information banks. The male claimant’s agents of harm found him when he moved to his uncle’s home with his family, which demonstrates a strong and sustained interest in him. The principal claimant added that his agents of harm are capable of committing very violent acts, as they have demonstrated with the murder of his brothers.

[26]     The panel takes note of the male claimant’s testimony regarding the means at the disposal of his agents of harm. The panel has also taken into account their potential interest in finding the claimant with a view to eliminating him from the line of inheritance and taking revenge on him for standing in the way of their demands as well as for having filed a complaint with the police against [XXX] regarding the murder of his brothers.

[27]     Consequently, the panel is of the opinion that, on a balance of probabilities, the claimants face a risk to their lives or a risk of cruel and unusual treatment or punishment throughout Nigeria.

[28]     In light of the above and taking all the evidence into account, the panel is of the opinion that the claimants have established that, should they return to Nigeria, they would be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment within the meaning of subsection 97(1) of the IRPA.

CONCLUSION

[29]     For all these reasons, the panel concludes that the refugee protection claimants are “persons in need of protection” and allows their refugee protection claim under paragraph 97(1)(b) of the IRPA.


[1] Document 1 — Basis of Claim Form.

[2] Document 1 — Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada, formerly Citizenship and Immigration Canada.

[3] Njeru v. Canada (Citizenship and Immigration) (F.C., No. IMM-2258-09), Russell, December 16, 2009, 2009 FC 1281; Kang, Hardip Kaur v. MC.I. (F.C., No. IMM-775-05), Martineau, August 18, 2005, 2005 FC 1128.

[4] Document 4 — P-20 to P-23.

[5] Document 4 — P-13.

[6] Document 4 — P-15 and P-18.

[7] Document 4 — P-14.

[8] Document 4 — P-23.

[9] Document 5 — P-24: Nigerian [XXX] ID card for [XXX].

[10] Document 4 — P-16 and P-17.

[11] Document 3 — National Documentation Package on Nigeria, November 29, 2019; Tab 1.3: European Union, European Asylum Support Office, August 2017, EASO COI Meeting Report: Nigeria.

[12] Document 3, Tab 1.4: European Union, European Asylum Support Office, June 2017, EASO Country of Origin Information Report: Nigeria. Country Focus.
Document 3, Tab 16.2: United Kingdom, Home Office, 2016, Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation. Version 2.0.

[13] Document 3, Tab 1.4: European Union, European Asylum Support Office, June 2017, EASO Country of Origin Information Report: Nigeria. Country Focus, p. 29.

[14] Supra footnote 10.

[15] Jurisprudential Guide, decision TB7-19851, May 17, 2018.

Categories
All Countries Haiti

2020 RLLR 61

Citation: 2020 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2020
Panel: R. Jackson
Counsel for the Claimant(s): Tina Hlimi
Country: Haiti
RPD Number: TB8-25759
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000008-000010

DECISION

[1]       MEMBER: So, I am just going to read you your Decision now. It is a positive decision. So, if everybody could just mute their microphone, I am going to read it to you, okay?

[2]       I have considered your testimony and the other evidence in the case, and I am ready to render my Decision orally. These are the reasons for the Decision in the claim of [XXX], who claims to be a Citizen of Haiti and is claiming refugee protection pursuant to 96 and 97(1) of the Immigration and Refugee Protection Act or IRPA or the Act.

[3]       You alleged that in your role in the [XXX] you made some enemies. There were two individuals who were for revenge upon you. One of them wishes to personally harm you, and the other has hired a gang to kill you. You fear you will be killed should you return to Haiti. I find on a balance of probabilities that you would be subjected personally to a risk to your life should you return to Haiti for the following reasons:

[4]       I find that your identity as the national of Haiti is established by the documents provided, including copies of your passport and birth certificate.

[5]       To establish your status as a Convention Refugee or as a person in need of protection, you had to show that there was a serious possibility that you will be persecuted or that you will be subjected on a balance of probabilities to a risk to life or of cruel and unusual treatment or punishment or danger of torture if you move to Haiti. You stated that you fear being killed because of the vendetta that (inaudible spot – 00:02:12) have against you because of (inaudible spot 00:02:15) arrest and suspension among other matters of internal church politics.

[6]       Refugee protection claims involving vendettas usually follow under subsection 97(1) of the Act, and since there is no nexus that I can mention. I therefore analyzed your Refugee Protection Claim under Section 97(1)(b) of the Act, and that is whether you would be personally subjected to a risk to your life or a cruel and unusual treatment or punishment should you return to Haiti.

[7]       I find that the evidence presented in support of your allegations does establish a likelihood on a balance of probabilities of a risk to your life. I find you to be a credible witness and therefore believe what you have alleged in support of your claim.   You testified in a straightforward manner, and you were able to spontaneously provide consistent testimony, as well as details of the many events in your narrative. You also provided evidence from credible sources which corroborates your allegations regarding what happened to you in Haiti. Your claim was very well documented. There is objective support for your allegations. Item 7.1 of the National Documentation Package describes the security situation in Haiti as bad, worrisome, precarious and unpredictable. Organized crime exists throughout the country, and there is a high level of crime and murder, kidnappings for ransom money or (inaudible spot – 00:03:44). Violent crime is primarily perpetrated by gangs in Haiti as well.  I find that there is clear and convincing evidence before me that the state is unable to provide you with adequate protection. Section 4.2 of the National Documentation Package states that democracy is precarious in the country. 2.1 states that the perception of widespread impunity discourages some witnesses from testifying at trials. These factors will impact your ability to receive any protection from the state. Item 7.1 states that the police force does not have sufficient capacity to carry out its missions, on the other hands it is also reported that the forces demonstrated an increased capacity in the planning and execution of complex operations including the securing of elections and crowd control while simultaneously performing routine tasks in combatting crime and more effectively maintaining the public order. Nevertheless, sources report that Haiti’s police force is too small given the crime rate.

[8]       Sources also reports that the police force lacks resources and means and doubts have repeatedly been raised as to whether the National Police Force is able to guarantee the security needed to protect Citizens, enforce the law and promote political stability.  Haiti’s judicial system is also under resourced and inefficient and is burdened by a large backlog of cases. Bribery is common at all levels of the judicial system. So, taking all of that into consideration I do not find that there is going to be a reasonable state protection for you and there is prior convincing evidence that the state is unable to provide you with adequate protection in your particular circumstances from the people who are after you.

[9]       I have considered whether a viable Internal Flight Alternative exists for you, and I find that there are no other parts of the country where you would not face a risk to your life. Haiti is a very small country, and you have been located more than once when you attempted to relocate within the country.

[10]     Based on this analysis, I conclude that you are a person in need of protection, and accordingly I accept your claim.

[11]     So that is the end of your hearing. Do you have any questions?

[12]     You have to unmute if you have a question.

[13]     CLAIMANT: I don’t have question.

[14]     MEMBER: Okay.  Well that’s it then.

[15]     COUNSEL: Okay. Thank you.

[16]     MEMBER: Thanks everybody. Thank you, Mr. Interpreter.

[17]     INTERPRETER: Okay. Thank you, Madam Member.

———- REASONS CONCLUDED ———-

Categories
All Countries Haiti

2020 RLLR 51

Citation: 2020 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Milan Milenkovic
Country: Haiti
RPD Number: VB9-06803
ATIP Number: A-2021-00655
ATIP Pages: 000139-000148


REASONS FOR DECISION

INTRODUCTION

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

DETERMINATION

[2]       Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[3]       Its reasons are as follows:

ALLEGATIONS

[4]       The claimant’s complete allegations are set out in the Basis of Claim Form (BOC)2 and need not be repeated here in detail.

[5]       To summarize briefly, the claimant was targeted by organized crime after refusing to give up his XXXX to the members of this organized crime group. The claimant was employed by [XXX] in Haiti. He was employed as a [XXX] (in Port­au-Prince), a dangerous area overrun by bandits. He testified that his work involved [XXX]

[6]       On [XXX] 2019, while working, the claimant was approached by a stranger. The man asked him to give him his [XXX]. The claimant refused, explaining the procedure involved in handing over an [XXX]. The stranger became furious and threatened him. Strangers started asking the security guards at work about the claimant.

[7]       On [XXX] 2019, while at the [XXX], the claimant was called out by an individual who took an interest in his [XXX]. This person knew when the claimant’s work shift ended, and the name of the person assigned to the following shift. Out of fear, the claimant remained at the [XXX] for several hours after his shift ended, until he felt it was less risky to leave the [XXX].

[8]       After this incident, the claimant took precautions in his means of transportation to work. Eventually, the situation became too stressful and the claimant quit his job on [XXX] 2019. He did so as he thought that quitting the job would put an end to his troubles.

[9]       On [XXX] 2019, while exiting [XXX], two persons gestured for him to stop his car. These persons shot in the direction of the car. The claimant sought state protection from the police in [XXX] on [XXX] 2019, to no avail. He does not know if the police investigated his complaint. The claimant moved to be away from his wife and daughter. He did this to keep them safe. Despite his move, on [XXX] 2019 a car chased him at high speed on the [XXX] highway. The car went out of its way to reach him. The claimant left Haiti on [XXX] 2019 on a plane ticket paid for by his sister. He landed in [XXX] USA, and made his way to Canada. His claim was referred at the Port of Entry on Aug 29, 2019.

[10]     The claimant fears being killed by the bandits who tried to kill him on [XXX] 2019 and [XXX] 2019.

[11]     The claimant also alleges risk to his life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm

[12]     The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in his country of nationality.

ANALYSIS:

[13]     The main issue is internal flight alternative (“IFA”).

Identity

[14]     The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file, along with other documents. The panel is satisfied of the claimant’s identity.

Nexus

[15]     For the claimant to be a Convention refugee, the fear of persecution must be “by reason of’ one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

[16]     There are numerous Federal Court cases which have held that victims of crime, corruption[1], or vendettas[2] generally fail to establish a link between their fear of persecution and one of the five grounds in the definition of Convention refugee.

[17]     The panel finds that the harm feared by the claimant is not by reason of one of the five grounds enumerated in the Convention refugee definition. The panel finds that the allegations concern criminal acts perpetrated against the claimant for reasons not related to a nexus. The panel shall therefore analyse the claim under section 97(1).

Credibility

[18]     When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts3 there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility the panel is entitled to rely on rationality and common sense4. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.

[19]     The claimant’s allegations do not run contrary to generally known facts. The claimant was interviewed by CBSA at the border5. The claimant’s statements during the interview are consistent with his BOC allegations. In fact, they provide detail which adds to the credibility of the allegations. This adds to the credibility of the claimant as a witness. The claimant’s testimony at the hearing was consistent with his allegations. The testimony was spontaneous and direct. He has documented his allegations. The claimant is credible.

S. 97 ANALYSIS

[20]     Section 97 is based on an objective assessment of risk, and the evidence must establish a specific, individualized risk for a claimant rather than generalized human rights violations in a country. Being a victim of crime does not make someone automatically qualify under section 97. There must be evidence establishing, on the balance of probabilities, that the claimant would be subjected personally to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment. In addition, to succeed under s. 97(1)(b), the claimant must also establish that the risk they face is not faced generally by others in or from the country.

[21]     The panel finds that the claimant would be subjected personally to a risk to life, or risk of cruel and unusual treatment or punishment in Haiti because of criminals’ interest in getting back at him since his refusal to give them his [XXX] in [XXX] 2019. The panel further finds that the claimant’s risk is not faced generally by others in or from Haiti.

[22]     The claimant does not name the criminals who have targeted him. But these criminals’ continued threats against him would, the panel finds, reasonably point to one same group of criminals who are targeting him. On a balance of probabilities, the panel accepts that the threats were by the same group of criminals targeting the claimant. This is because the claimant was specifically targeted by people who knew his identity, his schedule and his whereabouts. These criminals tracked and targeted him by threatening and attacking him, trying to shoot at him and run him off the road. This targeting carried over during various months and in various locations. There is no evidence that the claimant had any other problems with criminals in Haiti. People in Haiti are susceptible to crime and violence, but the claimant in this case the evidence establishes that the claimant was individually and specifically targeted by the same group of criminals.

[23]     Moreover, the events described go well beyond the general situation of gang crime or organised crime that is prevalent in Haiti. Even after the claimant quit his job as an [XXX] at the [XXX] in [XXX] 2019, he continued to be targeted, notably outside of [XXX], while on the road to [XXX] This was after he moved from his home in [XXX] 2019. This is relevant as he no longer had access to the [XXX] which was the starting point for the criminals’ interest in him in [XXX] 2019. The risk shifted to the claimant independently of whether his employment makes him of interest to the criminals. The risk has also now shifted independently of whether the claimant works in the area where he was first threatened. It is a risk that is more significant and more direct than that faced by others in Haiti.

[24]     In sum, the panel finds on a balance of probabilities that the claimant would be subjected personally to a risk to life or risk of cruel and unusual treatment or punishment in Haiti that is not faced generally by others in or from Haiti.

[25]     The risk he faces started as a risk resulting from his employment as a [XXX] for [XXX] at the [XXX]. That risk has now evolved to a specific, individualized risk that is unrelated to his employment as the risk is about him alone. That risk is not faced generally by large segments of the population in Haiti.

Similarly situated persons and objective basis

[26]     The objective country conditions evidence contains various documents on the harm faced by someone who has an unsettled score with gangs or other criminal elements6. The Board’s Response to Information Request (RIR) on Acts of Revenge committed by gangs or by other organized crime entities7 provides relevant information on the objective basis of this claim. Several sources in this RIR state that gangs and armed groups commit acts of revenge in Haiti. These acts of revenge are described as one of the methods of control used by gang leaders. Independently of their connection to gangs, criminals reportedly also commit acts of revenge. The perpetrators of acts of revenge may be guns for hire who work for others. Given the number of sources cited in this RIR, the panel gives this information significant weight. The information it provides is in conformity with other documents on file on the country conditions in Haiti.

[27]     Having established the prevalence of acts of revenge committed in Haiti by a variety of actors, the panel turns to the question of the motive for these acts of revenge. They are described, still in this same RIR, as occurring for a variety of reasons. Among these reasons is wanting to punish or dissuade those who oppose armed groups, and to settle scores. According to one source, those who report criminals to the police are particularly targeted. The panel notes that the claimant did file a police report. Acts of revenge are generally described as including murder and other grievous acts.

[28]     As for the ability to track down victims, the principal means described in the same RIR is word of mouth. The RIR refers to the effectiveness of different ways of locating people in Haiti. In addition, it reports that anyone outside a one’s small area will be quickly recognised. People in Haiti are reportedly “generally well aware of their neighbours’ business”8. The ability to track someone reportedly persists for years when a gang remains interested in that person. Some victims of acts of revenge have reported that the police helped assailants locate them.

[29]     Based on all of the stated evidence, the panel finds that there is an objective basis to the claim.

State Protection:

[30]     Claimants must show, on a balance of probabilities, that adequate State Protection is not available. The issue before the panel was whether it was objectively unreasonable for the claimant(s) to have sought state protection. While states are presumed to be capable of protecting their nationals, it was open to the claimant(s), according to the law, to rebut the presumption of protection with “clear and convincing” evidence.

[31]     The claimant sought state protection to no avail. This is consistent with the available country conditions evidence.

[32]     Several items of the NDP9 mention the inability of the police in Haiti to protect the people of Haiti. Corruption and impunity for crimes are described as being widespread in Haiti. One document references the French OFPRA report, which explains that: “The capabilities of the Haitian National Police are not sufficient, both in terms of the number of police officers who are mainly present in the capital, and in terms of the equipment available to the police, noting in particular the lack of fuel, cars and computers. » In the same vein, it states that “Haiti’s National Police has a limited response capacity and lacks the resources to complete investigations, which compromises the deterrent effect on criminals who act without fear of the police authorities.” The document also indicates that the police are notable to protect themselves from criminals in Haiti. When the panel considers the entirety of the evidence on country conditions in Haiti, it finds that the claimant could not avail himself of adequate state protection in Haiti. The presumption of state protection has been rebutted.

Internal Flight Alternative (IFA):

[33]     The IFAs of [XXX] were suggested at the hearing. Having heard the evidence the panel finds that the analysis of IFA fails on the first prong. The panel finds that the people who have targeted the claimant could locate the claimant in an IFA. As seen in the section on risk under section 97(1), the agents of harm have demonstrated their motivation to pursue the claimant outside of [XXX]. They have also demonstrated their motivation to pursue him over time. As seen in the section above on the objective basis, the social and neighbourhood networks in Haiti would make it possible for the agents of harm to locate him in the proposed IFAs. The panel finds that, on a balance of probabilities, the claimant faces a risk to life or risk of cruel and unusual treatment or punishment in the proposed IFA – s. 97(1) and throughout Haiti, which is a geographically small country.

CONCLUSION

[34]     Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.

[35]     The claimant is credible.

[36]     The panel concludes that the claimant is a person in need of protection and the panel therefore accepts their claim.

(signed)           Miryam Molgat

October 19, 2020

[1] Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v ME.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; and Vargas, Maria CecillaGiraldo v. ME.I. (F.C.T.D., no T-1301-92), Wetston, Mary 25, 1994.
[2] Marincas, Dan v ME.I. (F.C.T.D., no IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); and Xheko, Aida Siri v. M.C.I. (F.C.T.D., no IMM-4281-97), Gibson, August 28, 1998.
3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
4 Shahamati, Hasan v. Minister of Employment and Immigration (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994
5 Solemn Declaration by C. Cabot, Exhibit 1
6 National Documentation Package, Haiti, 1 September 2020, sections 2 and 7.
7 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
8 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
9 National Documentation Package, Haiti, 1 September 2020, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.National Documentation Package, Haiti, 1 September 2020, tab 7.8: Major criminal groups, including their areas of operation, their structure and their activities; state response (2016-May 2019). Immigration and Refugee Board of Canada. 6 June 2019. HTI106293.FE.

Categories
All Countries Colombia

2020 RLLR 46

Citation: 2020 RLLR 46
Tribunal: Refugee Protection Division
Date of Decision: August 11, 2020
Panel: Zhanna Perhan
Counsel for the Claimant(s): Justo Vega Castro
Country: Colombia
RPD Number: TB9-19730
ATIP Number: A-2021-00655
ATIP Pages: 000111-000114


DECISION

[1]       MEMBER: This is the decision for [XXX], TB9-19730. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally.

[2]       You claim to be a citizen of Colombia and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a person in need of protection as your return to Colombia would subject you personally to a risk to your life for the following reasons.

[4]       The allegations of your claim can be found in your Basis of Claim form in Exhibit 2. In short, you allege the risk to your life at the hands of the criminal organization, in particular, Clan del Golfo or Golf Clan who have threatened to kill you unless you agree to collaborate with their security plan in Colombia through regular extortions.

[5]       Your personal identity as a citizen of Colombia has been established on a balance of probabilities by your testimony and the supporting documents in Exhibit 1, namely, copies of your passport and your national identity card.

[6]       With respect to the Nexus to the Convention, there is insufficient evidence that you were targeted for Convention grounds for race, religion, nationality, political opinion or membership in particular social group so the claim is being examined under Section 97.

[7]       In terms of your general credibility, I have found you to be a credible witness and I therefore accept what you have alleged in your testimony and in your Basis of Claim form. You testified in a straightforward manner about your fears without embellishment. There were no major inconsistencies that went to the core of the claim that were not reasonably explained. You described how the threats from Clan del Golfo began in [XXX] 2019 when you were intercepted by a truck or a van and a motorcycle, threatened and demanded to pay extortions. You did not-, you were later in [XXX] 2019 supplied with instructions on when, where and how to bring the money and you did not comply with the demands, hoping for police protection. You relocated to Bogota to escape the criminals. When you retuned after almost two months, somebody broke into your home at the end of [XXX] 2019.

[8]       You left for Bogota again, lost hope for protection measures and because you had a tourist visa to Canada, you decided to leave Colombia as fast as you reasonably could and you flew to [XXX] 2019. Overall, your testimony was spontaneous including being able to provide details about your professional activities as a cattle farmer, an entrepreneur as well as the details of the threats and seeking protection from the authorities. You filed the denunciation, asked for protection. You turned to the army for additional protection, but you were only given recommendations and nothing else.

[9]       In particular, I noted substantial documentary evidence that you presented, particularly, in Exhibit 6 which corroborates your personal and professional identity as well as the details of the threats and attacks, paperwork and supporting letters confirming your professional activities as a cattle farmer, entrepreneur. Also supporting letters from family members who confirmed you were a victim of extortions and threats. Moreover, there are copies of denunciations made at Attorney General and copies of protection measures and crime reports, however, one of them, Exhibit 5 reports that you were first threatened by Golf Clan in 2013. When I asked you to explain why this information was omitted from your Basis of Claim form, you said, in 2013, it was a closed case. You didn’t lose any money [XXX]. In addition, the perpetrators back in 2013 were never identified as Clan del Golfo. The protection unit that took care of that case said that it was simply a paramilitary or a criminal group. That is why you did not mention it in your Basis of Claim form.

[10]     I find that explanation reasonable and it does not undermine your credibility. I find your testimony was consistent in content and chronology without the documents provided that were central to your claim and I find you are credible and I accept your allegations as identified in your written and oral testimony.

 [11]    I find that you would be subjected to a greater personalized risk compared to the general population in Colombia. Your professional activities as a [XXX] make you more affluent and thus easily targeted by the gangs for extortions. In addition, due to the nature of your professional activities, you’re well known in the community, hence, it made yourself open to public and easy to locate. I find on a balance of probabilities that you have established the personalized risk to your life that goes beyond the generalized risk in Colombia. Moreover, taking into account the past persecution at the hands of Clan del Golfo, I find you have established strong likelihood of harm in the future.

[12]     To just briefly comment on State protection and internal flight alternative. I find for two reasons that you have rebutted the presumptions of State protection and demonstrated there is no viable internal flight alternative. Firstly, you have provided credible evidence that you relocated, and you went into hiding in Bogota. You provided evidence that you approached the authorities for assistance and you applied for protective measures, but no adequate protection was provided. Due to the threats from Clan del Golfo that continued in spite of the complaints and recommendations from the police, you decided it was unsafe to remain in Colombia especially because no protection was forthcoming.

[13]     Secondly, I have reviewed the country condition evidence as reflected in National Documentation Package. Items 1.2 and 1.7 as well as the documents provided by the counsel on your behalf. Specifically, in Exhibit 5. The documents illustrate that while Colombia has made efforts to improve State protection, its ability to do so is severely limited due to a lack of presence and capacity in many areas of the country that have been recently vacated by FARC as well as significant issues of corruption and complicity by local offi-, officials. National Documentation Package, Item 7.2 reports that Clan del Golfo has succeeded in infiltrating divisions of the armed forces and the justice system. This narco-parla-, paramilitary group has infiltrated official institutions, forged alliances with public servants including armed forces, police, Attorney General and local governments officials so it would be the protection in my opinion would not be forthcoming in your particular circumstances. The preponderance of documentary evidence is clear and convincing in that.

[14]     In addition, I find you would be unable to safely relocate to any other parts of Colombia and that you fa-, face risk throughout that country at the hands of Golf Clan. Peace and Reconciliation Foundation reports in Item 7.2 in NDP and Exhibit 5 news articles provided by the counsel in particular, Colombia reports, news Latin America and Revista Semana ail confirm that Clan-, Golf Clan or Clan del Golfo also known as Urabenos or Clan Usuga or Autodefensas Gaitanistas de Colombia or AGC. They’re currently the largest criminal gang operating in Colombia. It had grown to include more than 8000 members, including informants. It has also become the largest and most powerful self American narco poster. Clan del Golfo has a presence in 279 municipalities in 27 departments, that’s NDP Item 7.2.

[15]     Clan del Golfo has made alliances with smaller groups and gangs throughout Colombia. They have a national reach and an ability to operate across the country. According to Human Rights Watch, there have been documented cases of persons being tracked down by the Cla-, Golf Clan after fleeing to other parts of the country and that’s in Item 7.15 on page 20. I find that Clan del Golfo has taken sustained efforts to locate you and having determined on a balance of probabilities that you are a credible witness, I am satisfied that this group has both the means and the motivation to locate you anywhere you go in Colombia. Therefore, on the evidence before me and based on your particular circumstances, I find that on a balance of probabilities you face risk to your life by the Clan del Golfo anywhere in Colombia and there is no viable internal flight alternative for you.

[16]     So, for all these reasons above, I find that you face risk to your life if you return to Colombia and accordingly I find you to be a persan in need of protection pursuant to Section 97(1)b of Immigration and Refugee Protection Act. Therefore, I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2020 RLLR 28

Citation: 2020 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: Jacqueline Gallant
Counsel for the Claimant(s): Fiona Begg
Country: Mexico
RPD Number: VB9-05754
Associated RPD Number(s): VB9-05768
ATIP Number: A-2021-00540
ATIP Pages: 000166-0000173


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision of the claim of [XXX] (the “Principal Claimant”) and his spouse [XXX] (the “Associate Claimant)”, who claim to be citizens of Mexico, and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

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

DETERMINATION

[3]       For the reasons that follow the panel finds that the claimants have satisfied the burden of establishing that, on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment upon return to their country.

ALLEGATIONS

[4]       The claimants fear they will be killed by members of the Cartel Jalisco Nueva Generacion (CJNG) if they return to Mexico.

ANALYSIS

Identity

[5]       The panel finds that the claimants’ identities as nationals of Mexico is established by their testimony and the documentary evidence filed including their Mexican passports.

Nexus

[6]       The panel finds that that there is no nexus between the claimants’ allegations and one of the five Refugee Convention grounds, and has therefore assessed these claims only under the provisions of s. 97(1) of the IRPA

Credibility

[7]       The panel finds the claimants to be credible witnesses. They testified in straightforward and forthcoming manner and there were no relevant inconsistencies in their testimony or contradictions between their testimony and the other evidence before the panel.

[8]       The panel accepts the following on a balance of probabilities:

The claimants opened a store in Guadalajara at the end of [XXX] of 2017 and members of the CJNG demanded the claimants pay them [XXX] Mexican pesos for the CJNG to provide protection to the store over the Christmas season. When the claimants did not pay this fee, [XXX] days later, the amount was increased to [XXX] Mexican pesos and the CJNG members threated the Associate Claimant telling her they knew about her daily activities and where the claimants lived.

On [XXX], 2017 three CJNG members came to the claimants’ store. Two of the men attacked the Principal Claimant and the other man stole merchandise from the store. The claimants went to the prosecutor’ s office to make a complaint but was told nothing could be done.

The claimants spent Christmas at the Principal Claimant’s family’s home in [XXX], Michoacan and when they returned home on [XXX], 2017, their home had been broken into but nothing had been stolen.

On [XXX] 2018 the members of the CJNG came to the claimants’ store, beat up the Associate Claimant and locked her in the bathroom while they robbed her store. The CJNG members told the Associate Claimant they now want [XXX] Mexican pesos and they would continue to steal merchandise until the claimants paid this amount. The CJNG members also told the Associate Claimant that if they ever made a complaint to the police again they would kill the claimants and their family. The CJNG members stole merchandise and the money from the cash register before they left.

The CJNG members continued to visit the claimants store throughout much of 2018. In [XXX] of 2018 the CJNG members came to the claimants’ store and threatened to kill the claimants and told them that this is no longer about the money but about the claimants having challenged the CJNG by not paying the money requested.

On [XXX], 2018 the Principal Claimant was dragged out of his car and badly beaten by members of the CJNG. The CJNG members told the Principal Claimant they were going to kill him and stole all of the Christmas presents that were in his car.

In [XXX] of 2019 members of the CJNG ransacked the claimants’ store and the claimants ultimately arranged to sell the business and merchandise that was left.

In [XXX] of 2019 the claimants visited the Principal Claimant’ s family in Michoacan and on [XXX], 2019 the Principal Claimant received text messages from members of the CJNG asking him if he thought this would end just because they went to Michocan. The Principal Claimant’s mother purchased the family plane tickets to travel to Canada on [XXX] 2019 to disappear for a while.

On [XXX], 2019 the Associate Claimant’s mother told them not to come back to Mexico as members of the CJNG had been to their place looking for them and told her they would be paying attention and were not finished. Members of the CJNG visited the home of the Associate Claimant’s mother again in [XXX] of 2019 looking for the claimants.

Since coming to Canada, the Associate Claimant has started receiving text messages from members of the CJNG threatening death to the claimants and including pictures of dead and tortured bodies. These threats have continued as to as recently as a month prior to the hearing of this matter.

[9]       The panel finds that the claimants’ have established a subjective fear of harm by the CJNG in Mexico.

[10]     The objective evidence of country condition in the National Documentation Package (NDP) for Mexico supports the claimants’ allegations. In 2015 the Mexican government declared the CJNG one of the most dangerous cartels in the country and one of two with the most extensive reach. In October of 2016 the US Department of Treasury names the CJNG as one of the world’s most prolific and violent drug trafficking organizations. The CJNG’s reputation for extreme and showy violence continues in 2019, including 19 bodies found on display m Michoacan, some of which were dismembered and others that were hung from overpasses.3

[11]     The panel therefore finds that the claimants have established that they would each face a personalized risk to their life or of cruel and unusual treatment or punishment that is not faced generally by others in their country.

State Protection

[12]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate.

[13]     The claimants indicated that they did approach the police for assistance but were not provided with any assistance or protection.

[14]     Overall, the evidence regarding state protection in Mexico is mixed:

According to item 7.18 of the NDP, in addition to federal police, Mexico had 382,277 police personnel as of 2015, as well as additional soldiers engaged in law enforcement activities4. According to item 9.11 of the NDP, these officers are arresting individuals who commit crimes and such individuals are being successfully prosecuted by the court system; there are presently more than 229,915 prison inmates in Mexico, with about 60% having been convicted of a crime, and the rest in pre-trial detention pending a trial or sentence.5

The US DOS’ report at Item 2.1 of the NDP explains that “organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials.”6

The Victimology of Extortion report from Rice University found at item 7.16 of the National Documentation Package indicates that various levels of government in Mexico are “incapable or unwilling to protect its citizens and often collaborate with the organized crime groups to further their criminal endeavors”. The report describes the Mexican government as being “willfully blind and permissive of criminal activity” and reiterates that in many cases the state has become a “partner in crime” with several criminal organizations or cartels.7

An August 2019 Response to Information Request found at item 7.15 of the NDP indicates making a complaint to a state authority against a gang “would lead to pressure to drop the complaint and ‘almost certainly’ lead to death if the individual did not comply.”8

[15]     Upon consideration of the evidence as a whole, the panel finds that the presumption of state protection has been rebutted. Certainly, the state is not entirely ineffective and is able to provide some protection to some of its citizens. However, given the claimants’ own experiences and the country condition evidence before it, the panel finds that the state is either unable or unwilling to provide adequate protection to the claimants.

IFA

[16]     In Rasaratnam v. Canada,9 the Federal Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative (IFA) was raised, the onus is on the claimant to show that she does not have an IFA. To find a viable IFA, the panel must be satisfied that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, a danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the proposed IFA and (2) that the conditions in that part of the country are such that it would be reasonable in all the circumstances, including those particular to the claimant, to seek refuge there.

[17]     The first question is whether the claimants would be safe in proposed IFA. At the outset of the hearing the panel identified that IFA was in issue and proposed the IFA locations of Campeche City and Mérida.

[18]     When the claimants were asked if they could live in either of the proposed IFA locations they said they do not believe they can be safe anywhere in Mexico as the entire country is controlled by cartels. When asked specifically about whether members of the CJNG could find them in Campeche City or Mérida the Principal Claimant said the CJNG can find anyone within the republic of Mexico and that the cartel may track them through their relatives. When asked about how the CJNG would be able to find them in the IFA locations, the Principal Claimant said that that the CJNG was able to find them in Michoacan and even in Canada. When asked for details regarding the motivation of the CJNG to find them, the claimants both said that this is no longer just about money and that the CJNG believes that the claimants have mocked them and made a fool of them by not paying them the money they demanded and being able to escape without being harmed.

[19]     The panel finds that the claimants have provided sufficient evidence to establish that the agents of harm in their case would have the means and motivation to find them in Campeche City or Mérida. In coming to a decision, the panel has considered the CJNG’s size, its area of operation, and its level of interest in the claimants.

[20]     The CJNG is not present in Campeche City or Mérida, as indicated in the 2019 Stratfor Global Intelligence map in the NDP,10 however the NDP describes that a group such as the CJNG could leverage corrupt officials in another location or utilize “strategic alliances” with other groups to locate someone if sufficient interest exists.11 According to the NDP, it is possible for cartels to track people outside of their areas of operation; the common motivation to do so being something the magnitude of “a large debt or a personal vendetta”.12

[21]     Campeche City and Mérida are both over [XXX] km and about a [XXX]-hour drive from where the claimants lived in Guadalajara. However, the agents of harm have shown they were able to track the claimants to the home of the Principal Claimant’s mother in Michoacan, and have even managed to locate them in Canada to continue the threats. The panel finds that the CJNG’s persistent interest in the claimants, including the very recent threats received in Canada, support an ongoing vendetta by the CJNG that would reach the magnitude necessary for the CJNG to have sufficient interest in using their ability to track the claimants outside of their area of operation.

[22]     On the evidence before it, the panel finds on a balance of probabilities the claimants are at risk to life or cruel and unusual punishment throughout Mexico and that the claimants therefore have no viable IFA.

CONCLUSION

[23]     The panel finds that the claimants have satisfied the burden of establishing on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. The panel therefore accepts their claims.

(signed)           Jacqueline Gallant

February 11, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996.
3 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and
Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
4 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.18: Criminality, including organized crime; state response, including effectiveness; protection available to victims, including witness protection (2015 – July 2017), Immigration and Refugee Board of Canada, 21 August 2017. MEX105951.E.
5 Exhibit 3; National Documentation Package, Mexico, 30 August 2019, tab 9.11: Criminal Procedure Reform in Mexico, 2008-2016. The Final Countdown for Implementation. University of San Diego. Justice in Mexico Project. Octavio Rodriguez Ferreira; David A. Shirk. October 2015.
6 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 2.1: Mexico. Country Reports on Human Rights Practices for 2018, United States. Department of State, 13 March 2019.
7 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.16: The Victimology of Extortions in Mexico, Rice University. James A. Baker III Institute for Public Policy, October 2016.
8 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEXI06302.E.
9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
10 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
11 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEX106302.E.
12 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, Item 7.15: Drug Cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico; Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E.