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.

Categories
All Countries El Salvador

2020 RLLR 25

Citation: 2020 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: John Kivlichan 
Counsel for the Claimant(s): Emily Rebecca Gerhard
Country: El Salvador
RPD Number: TB9-14423
Associated RPD Number(s): TB9-14504
ATIP Number: A-2021-00540
ATIP Pages: 000146-0000150


DECISION

[1]       MEMBER: The claimants are Ms. [XXX] and her minor daughter [XXX]. They are citizens of El Salvador who claim refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. At the start of the hearing, I appointed the principal claimant as the designated representative for the minor child, her daughter, given there has been long term separation of daughter from her birth father, who now lives in the USA. It is not contended there’s any issue here of abduction otherwise or problem about the principal claimant having sole custody of the minor claimant.

[2]       I determine that both claimants are citizens of El Salvador and no other country by reference to the copies of the passports found in Exhibit 1. The certified true copy of that for the principal claimant and the copy of a copy for the minor claimant. It was explained to me that the original passport for the minor claimant is being held by the US immigration authorities.

[3]       Let’s refer to the allegations in brief. The claimants assert a fear of the Maras otherwise known as the MS- 13 in El Salvador. Specifically, because the principal claimant was involved in a number of [XXX] as a [XXX] whose primary function was to work with at risk youth and try to divert those youth from otherwise becoming involved with the Maras, the gangs, who are the criminal actors in El Salvador. Because of the principal claimant’s work then and her background as a [XXX] who ran several programs to work with the at-risk [XXX], the Maras took a dim view of this, they threatened her repeatedly, they forced her to leave one job and relocate to another job. And in the most recent occupation in a new [XXX] starting in or so of [XXX] 2017, she only lasted there for about [XXX] months because by [XXX] of that year, she began to receive serious threats from a Mara member, personally identified himself to the principal claimant at her [XXX] as being from the MS-13 and he warned her that if she did not do as she was told then she would face the consequences “she took this as being a death threat”. She was also aware that in pervious positions, other [XXX] had been killed and in that most recent position, the [XXX] who were her pre-assessors had been forced to flee for their own lives. The principal claimant tried to seek help from the local police in [XXX] 2017 but while the police took her statement, nothing concrete came of the corn plaint. More importantly, as she was leaving the police station, she was approached by a runner or observer, a young boy acting on behalf of the Maras who was following her and who asked why she had gone to police. She knew at that point that she was under constant surveillance by the Maras, she never returned to the [XXX]. And furthermore, she learned soon afterwards that the extent of the Maras interest in her also went as far as her own daughter.

[4]       For these reasons, she decided to leave El Salvador as quickly as possible. A smuggler or snake head was found to get mother and daughter into the USA. They crossed the border first through Guatemala and then Mexico and into the USA by way of a raft on the Rio Grande. She was then picked up with her daughter in the USA and they were processed at that time however they found the detention conditions and the church to be aberrant. And furthermore, there were in the USA awaiting the outcome of their claims because of the situation there and other reasons which were detailed in oral testimony, they felt they would be safer by far in this country and thus made their move to come north into Canada. For these foregoing reasons they make their current claims.

[5]       I find to determine that the claimants are persons in need of protection due to risk to life or risk of cruel and unusual treatment or punishment for the following reasons. I accept that the testimony was credible throughout, it was given in a forthright and detailed fashion by the principal claimant. There were very few missed steps. There were some areas of concern primarily through gaps of the written narrative. I per say the narrative cannot be all encompassing for fear as it would be too lengthy but I would of appreciated for example, further details as to the problems in the second [XXX] where the principal claimant started in [XXX] or [XXX] 2017. The written narrative jumped into the problems in that second place by reference to an event in [XXX] 2017 but by comparison the oral testimony indicated area of problems from [XXX] even some months before hand. Furthermore, the country documentation disclosed by the claimants indicates that even before the principal claimant arrived at that [XXX] there was a history of violence against [XXX] like herself who had tried to engage the at-risk [XXX], this we see from Exhibit 6, page 13 and 14, the news article. So, in my view it is certainly my perception it would have been ideal to have seen greater detail as to why the principal claimant went to that [XXX] despite knowing-, actually said in oral testimony, all the history of problems there but that’s a minor point where one has easily overall thrashed the claim. So, to-, it would have been preferred had we been able to obtain the credible fear interview notes from the USA which I believe one from the access through the appropriate Access to Information Request to US CBP or INS or both, that might of assisted by corroborating that the allegations put forward to the USA at the credible fear interview stage were the same or consistent with the current claims. I see confirmation of the US credible fear interview though as being successful by way of the Notice to Appear from the US, department of Homeland Security appendant to Exhibit 2.1, the Basis of Claim From for the principal claimant.

[6]       So, in summary, I found the testimony given throughout was credible and trustworthy. There was appropriate corroboration by way of letters from calling [XXX] in the Exhibit package 6. We see the attestation also of the police and deputy inspector at page 1 to 5, employment letter regarding her [XXX], letters from the principal claimant’s colleagues and principal. All these serve to corroborate the details of the situation for the principal claimant and her daughter in El Salvador. Furthermore, the information applied by the principal claimant is entirely consistent with the known country conditions in El Salvador. Persons who are [XXX] are one of the classes of individuals who are at particular risk in so far as the gangs whether the MS-13 or the MS-18, consistently have reacted with the violence even murder against those who try to divert young [XXX] ages 10 and up from following the gang lifestyle. We this for example, when one looks at the report on the eligibility guidelines for assessing the international protection needs of asylum seekers from El Salvador, this from the UNCHR at Tab 1.5 of the National Documentation Package, Exhibit 3 on page 40, paragraph sub 10. It states, due to the youthful membership of the gangs in El Salvador, gangs reportedly often seek to exert inference on and in [XXX] and [XXX] institutions where they operate. [XXX] and other [XXX] working across the country where gangs are present reportedly occupy themselves subject to extortion demands and those who represent as I believe the principal in this insist, also did an alternative source from authority or resist or oppose the gangs and their recruitment of local youths have reportedly been threatened and killed by the gangs. It goes on then to state, depending upon the particular circumstances of the case, UNCHR considers that [XXX] and [XXX] working in [XXX] and [XXX] institutions may be in need of international refugee protection on the basis of their imputed political opinion or on the basis of other Convention grounds.

[7]       Given the outcome as positive, I dare say that the claimants care little that in my view there is questionable Nexus to any Convention refugee ground. The fear of persecution in my view is not necessary to enter the five grounds, I’ve considered the claimants testimony and I find that they fear crime or vendetta from members of the criminal gang, the MS-13. And the federal court cases in this regard for the most part have held that victims of such generally failed to establish any link between their fears in any one of the Convention grounds and that’s noted in the case law. For example, Marincas, M-A-R-I-N-C-A-S citation IMM-5737-93, more recently Bacchus, B-A-C-C-H-U-S that’s 2004 FC 821. So, certainly is an arguable point as to whether there is a Nexus or not. UNCHR takes a different view in the final outcome given my determination in positive, I doubt it matters to the claimants per say.

[8]       The claimants in view have also rebutted the presumption of state protection. They went to police as noted in the oral testimony and as evidenced by the reports we find in the Exhibit 6 package but with no success and more to the point the attempt to seek help from the police created a negative reaction from the gangs who were then able to identify the principal claimant as being what we would refer to ask a snitch and that itself exposed her to grave problems of irate immediate nature necessitating her departure from her job that very same day. So, as I said I consider that they have rebutted the presumption of state protection and all the circumstances and given that the country documentation consistently indicates in my view from Exhibit 3 NDP that there is no state protection both because of the inability but also because pervasive corruption that the MS-13 and MS-18 have managed to infiltrate various local police.

[9]       There was a further question mark about the abandonment of the US claims. As I said, I might of preferred to have seen more careful discussion of that in the written narrative. The only mention about the USA really indicates when I looked to the narrative at line 91 and 92 and thereafter, there were problems securing a lawyer, Jack of fonds and that was the real reason to depart from the USA for fear of deportation or arrest. The oral testimony differed from this because we got forward details about the oppressed conditions in the USA that indeed when the principal claimant consulted with the lawyer after arriving in the USA, in or about [XXX] 2018 she was advised that there was little chance of success in making a claim based on gang violence in El Salvador. The lawyer according to oral testimony based that upon directors from the president himself. My specialized knowledge and expertise is of course that the directive to restrict the ability to make a refugee or asylum claim in the USA arose from the promulgation of the then Attorney General, Mr. Sessions, S-E-S-S-I-O-N-S in or about [XXX] 2018. Whoever said it, I acknowledge that the US law is in flux, there is a clear indication from the highest authorities in the US that there is a grave risk of rejection of one’s asylum claim based upon the grounds of gang violence in El Salvador. So, for that reason, I draw no adverse inference in the all the circumstances that the claimants abandoned their US asylum claims in order to come here seeking true safety.

[10]     So, to summarize, as I said, there is ample documentation from the claimants to corroborate their process situation. The articles presented by counsel in the Exhibit package 6 address the particular problems of those who deal with [XXX] children who are at risk. We see this for example in the articles presented at page 18 from the Atlantic Magazine, the Rogers article at page 25 and the Inside Crime Discussion starting at page 31, all within the country disclosure section and these are all consistent with the allegations from the principal claimant. I did note also, in my discussion with her during the course of oral testimony that she had applied for a Canadian visitor visa but being rejected even as early as we see from the GCMS notes in Exhibit 1, in or about May or so of 2017, sometime before she actually left the country to go to the USA. Upon questioning the principal claimant, she said because of her prior experiences in the previous [XXX], she was then worried about getting further threats and had little confidence about her long-term prospects in El Salvador, however she lacked the fonds to get a visa from the either the Canadian authorities or US authorities at that time and was thus refused. It is apparent that there was the-, not shall we say obligation to leave the country even then so there is a slight question mark as to the timing of departure. In theory, the claimants might have left earlier then they did but in all these circumstances, I draw no negative inference. It would appear that their finances were limited and the principal claimant was trying her best to seek a new avenue of employment where she had been assured in the second [XXX] where she had worked most recently that she would be offered security. After a few months in that place in Morazan, M-O-R-A-Z-A­N, she found out that her employers had misled her because the police protection was withdrawn leaving her to the approaches by the gangs at their mercy.

[11]     My point here is essentially, I draw no adverse inference from the delay in leaving, from the abandonment of the US claim and ail the circumstances and I find the claimants have successfully made their made as persons in need of protection. I, therefore determine that the claimants [XXX] and her minor daughter [XXX] are persons in need of protection due to the risk to life or risk of cruel and unusual treatment or punishment which is more likely then not were they to return to El Salvador in the present day. And which risk is entirely personalized in nature given the repeated escalating threats to the principal claimant from the Maras in El Salvador. That concludes my decision.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2020 RLLR 20

Citation: 2020 RLLR 20
Tribunal: Refugee Protection Division
Date of Decision: June 19, 2020
Panel: Tyler Nicholson
Counsel for the Claimant(s): John W Grice/Cemone Morlese
Country: Sri Lanka
RPD Number: TB9-00748
Associated RPD Number(s): TB9-00789, TB9-00806, TB9-00807
ATIP Number: A-2021-00540
ATIP Pages: 000124-0000129


REASONS FOR DECISION

[1]       The claimants [XXX] (hereafter the “male claimant”), [XXX] (hereafter the “female claimant”), [XXX], and [XXX] purport to be citizens of Sri Lanka. They have claimed refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

Designated Representative

[2]       At the time of the hearing, the minor claimants [XXX] and [XXX] were minors. As the principal claimant is their father, the panel designated him as their representative. At the start of the hearing, the principal claimant confirmed his role as the designated representative and his responsibilities therein.

[3]       Given their ages, the panel did not require the minor claimants to testify during the hearing.

ALLEGATIONS

[4]       The claimants’ allegations are set out in full in their Basis of Claim (BOC) forms.2 The claimants allege that they are being persecuted due to the male claimant’s work as [XXX] for a NGO that [XXX] of politicians.

[5]       The male claimant claimed to have become involved with the [XXX]. As part of his work, he investigated a number of prominent politicians and after reporting discrepancies in their [XXX], testified he became a target.

[6]       The claimant indicated that he was kidnapped, brought to a rural village, and severely beaten, and was threatened with further harm.

[7]       The claimants left Sri Lanka on [XXX], 2018. The principal claimant’s mother testified that the police have come to their house repeatedly and asked about the claimants.

DETERMINATION

[8]       The panel concludes that the claimants are persons in need of protection due to a risk to their lives.

ANALYSIS

Identity

[9]       The panel was provided with true copies of valid passports and birth certificates from Sri Lanka for all claimants.3

[10]     The panel finds that these documents and the testimony of the claimants are sufficient to establish their identities on a balance of probabilities.

Nexus

[11]     The claimants are Sinhalese, Buddhist, and speak the Sinhala language, in common with the majority of the country.

[12]     The claimant indicated that he was being targeted due to his political affiliation with [XXX] political party, the National Unity Alliance. The male claimant was asked what party symbol appeared on ballots next to the party name, a traditionally important symbol in Sri Lankan politics.

[13]     The claimant indicated he did not know. When it was put to him that it traditionally used an image of eyeglasses, the claimant was candid with the panel that he was not heavily involved in the political side of the foundation, and did not regularly vote.

[14]     The panel finds it unlikely that the male claimant would be imputed as a supporter of a political movement he had next to no involvement in. Given the male claimant’s clear testimony on the matter, the panel did not draw a negative inference with regard to his credibility.

[15]     Taking in to account the claimant’s BOC narrative and his testimony, the reason his agents of persecution are targeting him relies on his performance of accounting duties with [XXX] and his probable reporting of crimes and regulatory offences. It is not because of his political beliefs. The panel finds that the male claimant was not politically involved in Sri Lanka, and finds that there is not a nexus connection to the Convention on the ground of political belief. This also means that the other claimants are not members of a particular social group as family members of the male claimant.

[16]     The panel finds that the claimants have not established a nexus to the convention. The panel must find that the claimants are not Convention refugees. The panel will continue its analysis regarding Section 97(1) of IRPA.

Credibility

[17]     The panel found both adult claimants to be generally credible in their testimony. They answered questions clearly and completely, were spontaneous, and did not seem calculating in their responses. The claimants also provided considerable corroborating documentary evidence, including affidavits from family members, medical notes, and letters from the organizations the male claimant was a member of.

[18]     The panel accepts that the male claimant worked as an [XXX], that he was abducted and beaten by the police as described, and that the other claimants were threatened due to his actions.

Objective Basis

[19]     The panel also considered objective evidence contained in the National Documentation Package, which noted that police in Sri Lanka are notorious for being able, despite legal guidelines, to arbitrarily detain and question suspects.4 The panel finds that, given the local police and other thugs have been after the claimants, the claimants have credibly indicated that the claimants have been targeted by the agents of persecution and are being pursued and face a risk to their lives.

[20]     Given the specific targeting of the claimants due to the male claimant’s accounting of funds of specific politicians, the panel finds that this would not be a risk generally faced by others, and is not inherent or incidental to lawful sanctions.

[21]     The panel finds that the claimants have established an objective basis for their claim, and finds that they fear, on a balance of probabilities, a risk to their lives or of cruel and unusual treatment or punishment if detained.

STATE PROTECTION

[22]     The state is presumed able to provide adequate protection to its citizens. Therefore, claimants have the duty to seek state protection before seeking protection in Canada. However, in certain circumstances, it would be objectively unreasonable to expect a claimant to do so. Furthermore, the protection available to a claimant may not be adequate given their specific circumstances.

[23]     The claimants testified that the local police were targeting them, and that they feared going to authorities due to them being targeted by politicians. This is corroborated by objective evidence, which notes that witness protection regimes in Sri Lanka are not considered viable or up to international standards, and are prone to abuse.5

[24]     The panel finds that the claimants have rebutted the presumption regarding adequate state protection existing in Sri Lanka.

Internal Flight Alternative (IFA)

[25]     The panel finds the claimants have credibly established that the agents of persecution have the ability to track the claimants, given that they have effective control over the entire country, and finds that there is no IFA for the claimants in the entirety of Sri Lanka due to a risk to the claimant’s life existing, on a balance of probabilities, throughout Sri Lanka.

CONCLUSION

[26]     The panel finds that the claimants, on a balance of probabilities, face a threat to their lives if they were to return to Sri Lanka and are persons in need of protection.

[27]     Their claims are accepted.

(signed)           Tyler Nicholson

June 19, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibits 2-5.
3 Exhibit 8, pp. 73-89.
4 Exhibit 3, 1.4 at 8.2.4
5 Exhibit 3, 1.4 at 6.6.4, 1.9 at 5.12.

Categories
All Countries Bangladesh

2020 RLLR 10

Citation: 2020 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: September 29, 2020
Panel: Ana Rico
Counsel for the Claimant(s): Md Wazir Hossain
Country: Bangladesh 
RPD Number: TB8-19236
Associated RPD Number(s): TB8-19239, TB8-19247, TB8-19248, TB8-19249
ATIP Number: A-2021-00540
ATIP Pages: 000066-000071


REASONS FOR DECISION

[1]       These are the reasons for decision of the Refugee Protection Division (RPD) in the claim for protection filed by [XXX], [XXX], [XXX], [XXX], and [XXX] under sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The Board appointed Mr. [XXX] as the designated representatives of the minor claimants.

ALLEGATIONS

[3]       The allegations are fully set out in the Basis of Claim forms (which can be found at exhibit 2.1-2.5). In short, the claimants allege that they face a risk to their life at the hands of Awami League and Communists cadres because they seek to extort them for [XXX]. If returned to Bangladesh, the claimants fear that they will be subjected to further assaults, kidnappings, and ultimately lose their lives.

DETERMINATION

[4]       The panel determines that the claimants are persons in need of protection as they face a risk to their lives in Bangladesh because of extortion threats from criminal elements.

ANALYSIS

Identity

[5]       The claimants’ identities as nationals of Bangladesh are established, on a balance of probabilities, through the certified true copies of their passportsi, and other government issued documentsii that were submitted to the Board.

Nexus- Section 97(1) Claim

[6]       The panel finds, for the reasons outlined below, that the fear alleged by the claimants fall under section 97(1) of the IRPA and has assessed it as such. Though the claimants are targeted by a politically motivated organization, the reasons for them being targeted is not tied to a Convention ground. The claimants indicate in their evidence that they are targeted because of their wealth, and social standing. While the claimant believes that the targeting may also be tied to a future political bid, the claimant indicated that he had no aspirations for politics. Moreover, in none of the incidents of persecution do the persecutors allude to any political reasons for targeting the claimants. It is clear in the agent of persecutions’ threats and actions that the reasons for targeting the claimants is tied to their wealth. A person’s socioeconomic status is not an innate or immutable characteristic as contemplated by the ground of membership in a particular social group. Given that the claimants are targeted because of their wealth, the panel finds that they have failed to establish a nexus to a Convention ground.

Credibility

[7]       Testimony given under oath is presumed to be true unless there are reasons to doubt its veracity. The claimants have given the panel no valid reasons to doubt the veracity of their evidence. There were no significant, unexplained inconsistencies, implausibilities or omissions from the principal claimant’s testimony. The principal claimant appeared to testify in a spontaneous and forthright manner.

[8]       The principal claimant provided realistic detail about the incidents of persecution that remained largely consistent with his Basis of Claim and other evidence contained in the record. The claimant provided significant detailed testimony concerning the first extortion event, the kidnapping of his sons, as well as, the agent of persecutions ability to locate them after relocating within Bangladesh.

[9]       While the principal claimant’s police report regarding the kidnapping of his son omitted the actual kidnapping, the panel finds the explanation given to be reasonable. It is entirely reasonable that the principal claimant would omit the kidnapping to shield the children from any greater violence, as he was threatened with death if he reported the kidnapping to the police. Given the threats made, and the police’s past inability to protect, that the principal claimant would not provide these details to the police.

[10]     Overall, the principal claimants’ evidence remained internally consistent and consistent with the other evidence in the record. Moreover, the allegations are well supported with a plethora of evidence whose authenticity the panel has no reasons to doubt. The corroborative evidenceiii, including police reports, witness statements, proof of sale of properties/assets to pay ransoms, proof of hiding in Bangladesh, is persuasive evidence that the allegations are, on a balance, true.

[11]     For the reasons state above, the panel finds that the claimants claim is credible, and that they have established that the allegations are true on a balance of probabilities.

Personalized Risk to Life

[12]     The panel must consider whether the claimants face a personalized risk to their life that is not faced generally by others in Bangladesh. The panel finds, for the reasons outlined below, that the claimants face a personalized risk to their life in Bangladesh. While kidnappings and extortion of wealthy persons is commonly faced by citizens in Bangladesh, the specific and repeatedly increased violent targeting of the claimants escalated the risk from that faced by others generally in the country to that of a personalized targeting of the family. It is evident from the claimants’ evidence that the targeting escalated from extortion threats, to threats of violence, to kidnappings. The steady increase of violence meted against the claimants, as well as the agent of persecutions pursuing the claimants to other parts of Bangladesh, clearly demonstrates that the targeting, and ultimately risk to the claimants’ lives, was very personal in nature. As such, the claimants face a personalized risk to their lives that this not face generally by others in Bangladesh.

State Protection

[1]       There is a presumption that States can protect its own citizens; however, it is open for a claimant to rebut this presumption with clear and convincing evidence of an unwillingness or inability of the State to protect them.

[13]     In the present case, the claimant sought state protection on four occasions. The claimants’ actions of seeking state protection is corroborated by the General Diaries contained in the record.iv While the police did record the claimant’s recounting of the incidents, the police did not investigate further, nor did they offer the claimants any protection, despite promising to take steps to follow up. Despite the claimants’ repeated attempts to follow up regarding the open investigation, the police failed to respond or provide any concrete information as to the state of the open investigations. The claimants above described personal experiences demonstrate that the police failed to provide adequate state protection to the claimants.

[14]     The objective documentary evidence also demonstrates that, in this case, state protection at an operational level remains inadequate. The National Document Package for Bangladesh contains many reports of extortion, kidnappings, and threats made by Awami League cadres, and their counterparts. The NDP for Bangladesh also highlights that the crimes go largely unpunished, and under-reported. There are reports of impunity for crimes committed by Awami League cadres, and their supporters. There are also instances in which the police collaborate with Awami League cadres to perpetuate these very same crimes against citizens in Bangladesh.v

[15]     Given the claimants’ own experiences with the police, and the level of impunity documented in the objective evidence, the panel finds that there is no adequate state protection for the claimants in Bangladesh at this time.

Internal Flight Alternative

[16]     As the agent of persecution is active throughout Bangladesh and has located the claimants even after relocating within Bangladesh, the panel finds that there is no viable internal flight alternative for the claimants.

CONCLUSION

[17]     Based on the totality of the evidence, the panel concludes that the claimants are persons in need of protection. The panel accepts their claims.

(signed)           Ana Rico

September 29, 2020

i Exhibit 1.
ii Exhibit 6; items 1.1-1.4.
iii Exhibits 6 and 7.
iv Exhibit 6, items 8.1-8.2, and items 9.1-9.2.
v Exhibit 3, National Document Package for Bangladesh, March 32, 2020, tab 2.1, tab 2.3, 2.7, and 2.9.