Categories
All Countries Colombia

2019 RLLR 56

Citation: 2019 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: May 8, 2019
Panel: D. Marcovitch
Counsel for the claimant(s): Jonathan W. Jurmain
Country: Colombia
RPD Number: TB8-04624
Associated RPD Number(s): TB8-04707, TB8-04708, TB8-04745, TB8-21591,TB8-21612, TB8-21613, TB8-21548
ATIP Number: A-2020-01274
ATIP Pages: 000108-000113


DECISION

[1]       MEMBER: This is an oral decision in the claims for refugee protection submitted by [XXX], [XXX], [XXX], [XXX], [XXX], [XXX], [XXX], and [XXX].

[2]       I’ve considered your testimony and all the evidence in this case and I’m ready to render my decision orally.

[3]       The claims were joined pursuant to Rule 55 of the RPD rules. [XXX] was the designated representative for the minor claimants [XXX] … [XXX] and [XXX] and [XXX] was the designated representative for [XXX] and [XXX] pursuant to Section 167(2) of the Immigration and Refugee Protection Act.

[4]       Your claims for protection have been made pursuant to Sections 96 and Sections 97(1) of the Immigration and Refugee Protection Act.

[5]       The claimants allege that they face a threat to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Columbia.

[6]       The claimant [XXX] was a [XXX] in Columbia and was actively involved in helping poor claimants … sorry, poor citizens who had been affected by the various active conflicts that have been plaguing Columbia.

[7]       [XXX]’s immediate family in this claim includes [XXX] his wife and his two children [XXX] and [XXX].

[8]       [XXX] came to the attention of the Clan del Golfo when he attempted to enter a poor neighbour in Cucuta North Santander with the intention of meeting a social leader and setting up forms where he could meet citizens and try to help them with land restitution or other [XXX].

[9]       Before you could enter the neighbourhood [XXX] was stopped and investigated by four armed men who claimed to be part of a neighbour … to be part of neighbourhood security and members of the Clan del Golfo. He was eventually free to leave but the men had called their commander and advised that they would be calling him later so that he could do them a favour.

[10]     [XXX] went to the police and filed a denunciation.

[11]     In [XXX] 2017 [XXX] received a call from the Clan del Golfo telling him to return to Cucuta within 10 days in order to discuss a business proposal. [XXX] was advised that the Clan de Golfo knew where he was living in [XXX] and knew many other details about him and his family. Nonetheless, [XXX] did not travel to Cucuta for the meeting.

[12]     After this [XXX] was approached and threatened on several more occasions.

[13]     By [XXX] 2017 the Clan de Golfo had stopped trying to gain his cooperation and instead demanded [XXX] pesos every three months in order for him to continue living. This demand was presented in a threat letter from the Autodefensas Gaistanistas de Columbia and was on their letterhead. The letter also declared XXXX and his family military objectives.

[14]     [XXX] went to the police, the Attorney General, and the Ombudsman seeking assistance for the continued threats and demands. He had also hired private security to protect himself while working.

[15]     Despite being a [XXX] and being familiar with State protection mechanisms, [XXX] was unable to get meaningful assistance from any of the previously mentioned government bodies.

[16]     As a result, [XXX] and his family left Columbia in [XXX] 2018.

[17]     The claimant [XXX] and his immediate family which consists of his wife [XXX] and his children [XXX] and [XXX] claim refugee protection based on being threatened by the same Clan de Golfo members that were seeking out his brother-in-law [XXX].

[18]     [XXX] alleges that he was approached on the street in Bogota on [XXX], 2018 by people claiming to be members of the Clan de Golfo and that they were seeking the whereabouts of [XXX]. [XXX] did not provide them with the information as he not seen [XXX] in several months and was unsure of his location. The Clan de Golfo offered [XXX](ph) … sorry, offered [XXX] financial reward if he had helped them.

[19]     About a week later [XXX] filed a report with the Attorney General about the incident even though he had been turned away from the police twice when he attempted to seek their assistance. [XXX] managed to get a protection order from the Attorney General and provided it to the police. The police dropped by his home and provided three telephone numbers for him to call if he noticed anyone following him.

[20]     The Clan de Golfo contacted [XXX] by phone on [XXX] and then again on [XXX], 2018 to see if he had the requested information. [XXX] reported both of these calls to the fiscalia.

[21]     Eventually, [XXX] received a letter from the Clan de Golfo which declared him and his family military objectives. Along with the letter were also photographs of [XXX]’s family members outside their home and at different locations within Bogota.

[22]     As a result, [XXX] and his family fled Bogota to the United States where they then irregularly crossed into Canada. It was always their intention to come to Canada but could not do directly as their temporary resident visa application had been denied on the basis that [XXX] and his family had already applied for refugee protection.

[23]     [XXX] and his family entered Canada on [XXX], 2018.

[24]     I find that all the claimants are persons in need of protection pursuant to Section 97 of the Immigration and Refugee Protection Act as the risk was occasioned as a result of criminality and extortion and not … and not on the basis of [XXX] political opinion.

[25]     I find that the claimant’s personal identities as nationals of Columbia has been established, on a balance of probabilities, by certified copies of each claimant’s passports which have been seized by Canadian Immigration officials.

[26]     With respect to credibility, I find that the claimants were all credible witnesses.

[27]     I asked extensive questions of [XXX] and he was able to answer my questions clearly and with detail.

[28]     I was concerned about the placement of the fiscalia emblem on the reverse side of his fiscalia reports but in the absence of evidence that such a practice is abnormal, I do not take a negative inference against it.

[29]     I had a few credibility concerns with [XXX]’s testimony as it related to an omission regarding his activities on the day following his first Clan de Golfo contact wherein he went to the United States Embassy in Bogota, but I do not have any clear basis to impugn the core of his allegations on this point alone.

[30]     The claimants also submitted credible documentary evidence in support of their claims, including support letters from politicians, security guards, fiscalia reports, Ombudsman reports, copies of the AGC threat letters, and a text threat message which corroborates their testimony.

[31]     I therefore accept what the claimants have alleged in support of their claims.

[32]     I also note that the objective documentation confirms that Clan de Golfo is an alternative name for the Autodefensas Gaistanistas de Columbia also known as the AGC, and I therefore accept that when the claimants indicate they were threatened by the Clan de Golfo, but the threat letter is from the AGC, that it is the same organization.

[33]     Now, I would normally have considered that the claimants could have had an internal flight alternative in the City of Tunja in Boyaca Department, but because the claimants have been declared military objectives I removed this options as an active issue.

[34]     Documents on file indicate that when a person is made a military objective it means that their life, physical integrity, and freedom are endangered and that this threat extends to the family.

[35]     The National Documentation Package response to information request at Item 7.2(1) suggests that when someone is declared a military objective means they had been marked as someone who is to be killed. I therefore found it odd that [XXX]’s threat letter from the AGC demands money at the same time as declaring him a military objective. This does not directly fit without being declared a military objective plays out according to the NDP document.

[36]     However, on a balance of probabilities, I find that you were, in fact, declared military targets. Further, given that you made several denunciations and sought State protection, I find, on a balance of probabilities, that the risk to [XXX] and his family would have increased.

[37]     Likewise, [XXX]’s family having also been declared military targets and in conjunction with the photographs taken of him and his family, that the threat letter declaring them military target is credible.

[38]     For the following reasons I find that State protection would not be forthcoming for the claimants.

[39]     The objective documentation notes that there’s been some improvement in State response to bacterium groups but the efforts have been mainly confined to a peace with the ELN.

[40]     The State has also managed to see a large demobilization of FARC. However, despite this groups such as the Clan de Golfo which have moved into the territory of the demobilized FARC and have become the largest actrime(ph) group in the country. The Clan de Golfo continues to intimidate opponents and commit other crimes.

[41]     Further, there are reports of complicity and collaboration between bacterium groups and security forces. Investigation of murders by such groups continues at a slow pace and there continues to be issues of impunity for security forces involved in human rights abuses.

[42]     The United Nations High Commission on Refugees reports that witness protection in Columbia continues to be inadequate. They further note that the ability of the government to provide protection is limited due to capacity issues and issues with corruption.

[43]     Further, as a [XXX] who works with disadvantaged citizens, [XXX]’s profile may fall within those profiles considered in the UNHCR refugee eligibility guidelines.

[44]     Further, as the claimants provided evidence that they approached the authorities on a number of occasions but … but no meaningful assistance was forthcoming, I find that adequate State protection was not available to them in the past and would not be in the future.

[45]     Based on the foregoing I find, on a balance of probabilities, that the claimants would not receive adequate State protection in Columbia.

[46]     As previously noted with respect to NDP Item 7.2(1), with the claimants having been declared military objectives, the objective evidence suggests that bacterium groups will travel to anywhere in the country in order to find those who have been declared military objectives. As such, an internal flight alternative will not be available to these clients, so excuse me, claimants.

[47]     I therefore conclude that the claimants are Convention refugees. Excuse me. I therefore conclude that the claimants are persons in need of protection and I therefore accept their claims. Good luck.

[48]    COUNSEL: Thank you.

[49]    CLAIMANT: Thank you so much.

[50]    MEMBER: You’re welcome.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

2019 RLLR 54

Citation: 2019 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2019
Panel: Roslyn Ahara
Counsel for the claimant(s): Penny Yektaeian Guetter
Country: El Salvador
RPD Number: TB8-00970
ATIP Number: A-2020-01274
ATIP Pages: 000100-000103


DECISION

On October 21, 2019 the Refugee Protection Division (RPD) heard the claim of [XXX], who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[1]       MEMBER: [XXX], is a citizen of El Salvador seeking refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       Your allegations are described in detail in your Basis of Claim Form (BOC);2 however, they can be summarized as follows:

[3]       You fear persecution at the hands of the Mara Salvatrucha (MS-13), and you believe that this gang caused the disappearance of your brother in [XXX] 2013. Personally, you believe that you have been threatened if you did not transport drugs on their behalf, and you felt this threat was real, given the fate of your brother.

[4]       You left El Salvador on or about [XXX], 2014, for the United States. You were detained, and made a refugee claim, which was denied, and subsequently the appeal was also denied.

[5]       You have indicated in your testimony today that you were extorted, on a regular basis, approximately six months following the disappearance of your brother in [XXX] 2013.

[6]       Finally, on [XXX], 2014, six to seven members of the MS-13 approached you and asked you to transport drugs inside the [XXX] that you were repairing, and when you refused, they immediately punched and kicked you. In your oral testimony today, you also stated that they threatened that you would suffer the same fate as your brother if you did not comply with their demands.

[7]       At the outset of this hearing, I identified the issues of credibility, generalized risk and state protection. Counsel conceded that there was no nexus.

[8]       On a balance of probabilities, I find that your identity has been established as per your passport.3 In considering your credibility, I did not find any glaring omission or contradictions between your testimony and the evidence contained in your record. I did not find that you attempted to embellish the merits of your claim. In totality, I found you to be a credible witness.

[9]       As I indicated earlier, counsel conceded the issue of nexus. There is much case law in this regard, in terms of criminality by gangs, and the country documentary evidence states that the MS-13 are engaged in economically motivated crimes involving extortion, kidnapping, recruitment of youths to aid their cause. There are a number of cases which support the lack of nexus, but since your counsel has conceded this issue, I will go on to consider the issue of generalized risk.

[10]     In examining generalized risk in this particular case, I must look at whether or not there have been consequences as a result of the initial threats, because extortion on its own would be a generalized risk. I must also look at what factors may move your claim from the category of generalized risk into a personalized risk, in other words as it relates to you.

[11]     You have provided much documentation with respect to what happened in El Salvador, with respect to your brother and your father’s attempt to locate him. Therefore, the motive has been established. As I indicated earlier, it began as extortion, and then the precipitating event which led to your departure was a demand for you to transport drugs.

[12]     This may also be the modus operandi of the MS-13 gang. Given the documentation that you have submitted, I concur that this may well be tied to, and certainly indicates that if you did not comply with the perpetrators’ demands, you could meet the same fate as your brother. Therefore, I find that this event removes you from the generalized risk category, into a personalized risk, because of this consequential and heightened risk.

[13]     The objective evidence is extensive in the National Documentation Package (NDP).4 The MS-13 and the 18th Street Gang (Barrio 18) are violent, armed street gangs involved in drug sales, extortion, arms trafficking, murder for hire, carjacking, and aggravated street crime.

[14]     A report by the International Crisis Group indicates that: “The [MS-13] are both victims of extreme social inequality and the perpetrators of brutal acts of violence.”5

[15]     The murders in El Salvador among the world’s highest rates of homicide,6 the incidents include confrontation with the police, rivalries, score settling, or intimidation carried out by the two outstanding Mara organizations: MS-13 and the Barrio 18.

[16]     I am satisfied that the objective evidence confirms and supports the subjective basis of your fear that you are at risk of harm or death if returned to El Salvador.

[17]     In terms of state protection, you have indicated in your oral testimony about the corruption and the police presence within these gangs. The Immigration and Refugee Board’s NDP indicates that the El Salvadorian authorities are not effective in combating crime.7

[18]     According to the documentary evidence, there have been serious concerns about corruption within the police and judicial systems.8 Therefore, the presumption of state protection is rebutted.

[19]     The United States Department of State’s “El Salvador 2018 Human Rights Report” indicates that: “impunity persisted despite government steps to dismiss and prosecute some [officials] in the security forces, executive branch, and justice system… “9

[20]     The International Crisis Group also indicates that “[c]orruption is prevalent in Salvadoran judicial and security institutions…”10

[21]     Consequently, I conclude that state protection is not adequate.

[22]     Although, not placing the issue of an internal flight alternative (IFA) on the table, in light of the fact that El Salvador is a small country and the Mara Salvatrucha groups operate throughout El Salvador, I do not find a viable IFA in the particular circumstances of your claim.

[23]     I consider that while the average El Salvadorian could be affected by gang related crime, I find that you and your family were singled out.

[24]     Accordingly, for the foregoing reasons, I find that you are a person in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act, and accordingly your claim is accepted.11

———- REASONS CONCLUDED———-

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended [IRPA], sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC), received January 29, 2018.
3 Exhibit 1, Package of information from the referring CBSA/IRCC, received January 29, 2018.
4 Exhibit 4, National Document Package (NDP) for El Salvador (September 30, 2019).
5 Ibid., item 7.8.
6 Ibid., item 9.2.
7 Ibid., item 7.6.
8 Ibid., item 9.2.
9 Ibid., item 2.1, Executive Summary.
10 Ibid., item 9.2.
11 IRPA, supra, footnote 1, section 97(1).

Categories
All Countries Jamaica

2019 RLLR 48

Citation: 2019 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Veda Rangan
Counsel for the claimant(s): Johnson Babalola
Country: Jamaica
RPD Number: TB7-21735
Associated RPD Number: TB7-21736
ATIP Number: A-2020-01274
ATIP Pages: 000055-000059


REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

[2]       You allege the following. In your narrative to the Board, filed with your Basis of Claim (BOC) Form, you state that you grew up in the city of [XXX], Kingston, Jamaica.2 On [XXX], 2017, a resident of [XXX] named [XXX] was murdered. A family friend of yours was questioned by the police as a person of interest. This person, named [XXX], accused you of telling the police that [XXX] was likely a suspect. Angered by the allegations against him, [XXX] sent threatening notes to your family while you were visiting your family in Canada. In addition, [XXX] mother also sent similar message to the you and your family.

[3]       You testified that at no time, did you tell the police that [XXX] could be a suspect. In your narrative, it is stated that “on [XXX], 2017 [XXX] came to my house and showed me a gun and told me that if he ever gets arrested for anything he didn’t do I would pay a price.” In addition, he made veiled threats against your daughter. Some of [XXX] friends told you that they were waiting for an order from [XXX] to “finish her.”

[4]       Fearing for your and your daughter’s safety, you went to stay with a friend in [XXX], St. Catherine. While staying there, [XXX] and his friends visited you. Your friend asked you to leave his premises for the fear that [XXX] would harm him for harbouring you.

[5]       Fearing for your safety, you went to another police jurisdiction to lodge a complaint; however, they asked you to go the [XXX] police. Your brother, a [XXX], told you to leave the country as no one could guarantee your safety. You left for Canada for a short stay, hoping that the matter would settle by the time you return. As a result of further threats from [XXX] and his friends, you remained in Canada and made a claim for refugee protection.

[6]       You and your daughter testified about the incidents in Jamaica as stated above. In addition, you stated that you and [XXX] went to the same school, and that his brother was killed by the rival gang. You also stated that you didn’t want to go back to the same environment.

DETERMINATION

[7]       I find on a balance of probabilities, that you would be subjected personally to a risk to your lives or to a risk of cruel and unusual treatment or punishment, should you return to Jamaica, for the following reasons.

ANALYSIS

Nexus

[8]       I have examined your claims under section 97 as there is no nexus to a section 96 ground.

Credibility

[9]       Based on the documents in the file, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. You had proffered a letter from [XXX], a Justice of Peace, in which he confirms you to be a resident of [XXX], and that the gangs in your vicinity would consistently invade your premises and use your home as a strategic location to attack other gangs. Your roof was often used as a shooting range. He also noted that you had to leave as your life was in danger.

[10]     You had also submitted a letter from [XXX], the person you had stayed with. In his letter, he notes that you and your daughter had stayed with him as you feared harm from the gangs led by [XXX]. After reviewing the documents, I have no reasons to doubt their authenticity.

Nature of the harm

[11]     You were threatened at gun point, and the veiled threats made to your daughter created a fear for her safety as a young female. You also feared harm from the gang as you were threatened at gun point and by his friends. You lived in an environment where gang violence was an everyday occurrence. You had accepted this as a way of life but when the threats became personal, you felt the need to move away from the danger. This harm clearly amounts to a risk to your life and that of your daughter.

State protection

[12]     I find that adequate state protection would not be reasonably forthcoming in this particular case. You had approached the police when the situation turned serious. However, you received no real help from the [XXX] police. Even your brother, a [XXX], was unable to help you. You had no family in Jamaica who could help or support you.

[13]     In the documents provided by you, it states that “residents in [XXX] are so fearful these days, many refused to speak about the mayhem around them. And those who did, ask for their identities to be kept a secret.”3 I have carefully reviewed the documentary evidence and I find that these articles clearly demonstrate that there could be a risk to your life, should you return to Jamaica as you are being perceived as an informer.4

[14]     The Bertlesmann Stiftung’s 2016 report states that: ‘The state’s monopoly on the use of force is established nationwide in principle, but it is challenged by organized criminal gangs or networks in specific areas.’ The challenge does not, however, constitute a major threat at the national level. The specific areas are not whole parishes or regions but depressed inner-city communities, varying in population size from 3,000 to 20,000, where violence is directed not always against the state or the security forces but against rival gangs and those civilians labeled as “informers.”5

[15]     In an article by Amnesty International reported on October 2014, it is stated:

Women and girls living in inner-city communities remain particularly exposed to gang violence. They are often victims of reprisal crimes, including sexual violence, for being perceived as having reported or actually reporting criminal activity to the police, or in relation to a personal or family vendetta.6

[16]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances.

CONCLUSION

[17]     Based on the analysis above, I conclude that you are persons in need of protection. Accordingly, I accept your claims.

(signed)             Veda Rangun

December 2, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim (BOC) Form, TB7-21735.
3 Exhibit 5, Claimant’s Documents, received October 17, 2019.
4 Ibid.
5 Exhibit 3, National Documentation Package (NDP) for Jamaica, (April 30, 2019), item 4.2.
6 Ibid., item 2.2.

Categories
All Countries India

2019 RLLR 44

Citation: 2019 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2019
Panel: Paul Fitzgerald
Counsel for the claimant(s): Miguel Mendez
Country: India
RPD Number: MB8-21731
Associated RPD Numbers: MB8-21773
ATIP Number: A-2020-01124
ATIP Pages: 000022-000029


REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the refugee protection division in the claim for refugee protection of [XXX], the claimant, and [XXX], the co-claimant, citizens of India. They claim refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).1

DETERMINATION

[2]       Having considered all of the evidence, including the claimants’ testimony, the panel finds that the claimants face a risk to their lives or to a risk of cruel and unusual treatment at the hands of highly-politically connected gangsters. The panel therefore finds that they are “persons in need of protection” pursuant to section 97 of the Act and accepts their claims.

ALLEGATIONS

[3]       The claimant’s detailed allegations are contained in his Basis of Claim Form (BOC)2. In summary, the claimant fear serious harm or death at the hands of [XXX] and [XXX], well-known local gangsters that have the political backing of powerful politician Bibi Jagir Kaur and the tacit support of the Punjab police.

[4]       The claimant was working on his farm when he heard shouting and discovered a man being savagely beaten by the local gangsters. He called police who later invited him to make a statement. Two days later, the claimants and their minor son were accosted and beaten by [XXX], who told them to withdraw the complaint.

[5]       The claimants described a cycle of altercations with [XXX] and/or the police, where an incident would happen, they would report it to the police, and physical violence would occur, sometimes at the hands of the gangsters and sometimes as the hands of the police.

[6]       The claimants described their frustration at realizing that at least in parts of the Punjab, the gangsters have support in certain political quarters and the tacit, if not active, support of the police.

[7]       On two occasions, the claimants fled their village to other parts of India, notably [XXX] in Haryana and [XXX] in the Punjab. They were finally told by a lawyer that they could not prevail against politically-connected gangsters with tacit backing of the police.

[8]       However, the event that provoked their departure from India was the kidnapping of their then 9-year old son and the realization that their enemies would stop at nothing and the police would not protect them.

Identity

[9]       The claimants’ personal and national identities as citizens of India are established on a balance of probabilities by their testimony and by the documentary evidence on file, including a copy of their Indian passports.3

ANALYSIS.

Credibility and State Protection

[10]      Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness. In this case, the Panel has no reason to doubt the claimants’ credibility. Their testimony was spontaneous and sincere, and was consistent with the allegations in the claimant’s BOC. Therefore, the Panel finds the claimants to be credible witnesses and believes, on a balance of probabilities, the allegations contained in their claim.

[11]     The claimant told the panel on various occasions that he regretted ever taking an interest in the incident that caused the death of the man on his farm. He had just returned from working 7 years in Saudi Arabia and regretted making that first phone call to the police.

[12]     During their testimony it became obvious that their various attempts to solicit police involvement was nothing less than a sincere, repeated call for State Protection, which fell on deaf ears and in many cases provoked reprisals and/or torture from the gangsters or the police.

[13]     In their BOC4 the claimants alleged that the Punjab police, now convinced that the claimant was not a criminal, had identified him as a witness who testimony was necessary to secure the conviction of the people who have savagely beat and ultimately killed the man on the claimant’s farm.

[14]     The claimants described how they left Punjab and relocated in the co-claimant’s home town of [XXX], some [XXX] km away, in the neighbouring state of Haryana. At the hearing, the claimant explained how the Haryana police, with the participation and at the request of the Punjab police, had gone to the house in [XXX], detained the claimant and returned him to the Punjabi police in his home town, where he was beaten and reminded of this obligation to cooperate with the Punjabi police.

[15]     The claimant described his complete frustration in realizing that while the police said they wanted to arrest the people responsible for the death of the man on his farm, the police were willing to consider any persons except the two guilty persons, namely, [XXX] and [XXX]. He stated that he was unwilling to falsely accuse an innocent person and stated he desperately wanted to avoid further negative interactions with the police.

[16]     Unwilling to falsely accuse an innocent person, and wanting to avoid further negative interactions with the police, the claimants stated stayed briefly with friends in [XXX], another town in Punjab, returning home after the friend’s wife expressed concerns about possible increased danger to the friend’s family.

[17]     The single most important allegation was that the gangsters, [XXX] and [XXX], had kidnapped or arranged for the kidnapping of their minor son [XXX], then aged 9, on [XXX], 2018, as he played in front of the family home.

[18]     The co-claimant described an initial frantic, desperate search for her son, fainting due to low blood pressure, the network of friends that searched for him and the posters they distributed with his picture.5 The claimants were dismayed at realizing that the police would offer no assistance whatsoever, and told the Panel that they feared that their son had joined the ranks of Indian children, whose organs are harvested.

[19]     They stated that they continued searching for their son, contracted an agent, and came to Canada on [XXX], 2018, by which time the co-claimant was three months pregnant.

[20]     They testified that by chance, on [XXX], 2019, their son was found begging by relatives at a celebration of Sikh culture in [XXX] in Punjab.6 He is now living with the co-claimant’s mother and brother in [XXX], in the neighbouring state of Haryana.

[21]     When asked how the child had fared during the nearly 11 months during which he had been kidnapped, the co-claimant said the child had initially been uncommunicative and a doctor had told them that the child was very scared and should not be left alone.

[22]     The co-claimant testified that the day her mother gave her the news that [XXX] was free she was the happiest person in the world and also the saddest person in the world because she could not be with him.

[23]     The co-claimant testified how she had felt anguish, when her mother had not let her see her son’s face for fear of provoking a reaction that would harm her unborn grandchild. She described her heart retching agony and not being able to answer her son’s repeated question, “Momma bring me closer to you!” Due to the child’s fear, [XXX] has not left his grandmother’s house since arriving there.

[24]     The infant, [XXX], was born in Montreal on [XXX], 2019 and had [XXX], which the mother blames on the stress she was under in her final trimester of pregnancy. Fortunately, surgery on [XXX], 2019 has since cured the infant’s defect.

[25]     The claimants submitted a letter from Sophie [XXX], a Quebec social worker7 who has dealt extensively with the family. It describes the tremendous stress the family is under. To show her support, Ms. [XXX] came to the hearing.

[26]     The Panel finds the claimants’ behavior to be generally consistent with that of persons who cannot return to their country.

[27]     Having found that the claimants are being pursued by highly-politically connected gangsters, with tacit police support, the Panel finds that they face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment and that they have rebutted the presumption of state protection with clear and convincing evidence.

Internal Flight Alternative

[28]     The Panel proposed Delhi and Yamuna Nagar as Internal Flight Alternative locations.

[29]     The IFA analysis is a two-prong test:8 (1) the claimants bear the burden of proof to demonstrate, in the proposed IFAs, that they would face a genuine risk of cruel and unusual treatment or punishment or that, on a balance of probabilities, they would be personally subjected to a risk; (2) the claimants bear the burden of proof to demonstrate, on a balance of probabilities, that it would be objectively unreasonable or unduly harsh to relocate to the proposed IFAs: “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant”.9

[30]     Prior to considering seeking refuge in Canada, the claimants had sought refuge in [XXX] in Punjab and as well in the co-claimant’s home town of [XXX] in the neighbouring state of Haryana. They testified that they had been surprised by the level of cooperation between Punjab and Haryana police in finding the mail claimant and returning him to Punjab.

[31]     They testified while they were seeking refuge in [XXX], the Haryana police had escorted the Punjab police to the home in which the claimants were staying and the Punjab police had arrested the claimant and brought him back to Punjab, where he was beaten.

[32]     In order to meet both criteria of the IFA two-prong test in the current context, there cannot, on a balance of probabilities be any information sharing between the police in Punjab and those in other states.

[33]     The objective country documents before the panel establish that the Indian police at a national level are rolling a police database called Crime and Criminal Tracking Network and Systems (CCTNS)10 and that “94 percent of police stations across India have CCTNS hardware deployed”11 but that the degree to which the database is used and whether it is being used efficiently is hard to confirm.12

[34]     The objective country documents before the panel also confirm that the CCTNS is also being connected to tenant registration systems in order to give the police the power to “verify tenant information.13 As with CCTNS itself, this capability has not yet been fully deployed.14

[35]     Although the degree of implementation of CCTNS and its link to tenant information varies by State, the more recent documents confirm progress is being made.15

[36]     Thus, the Panel concludes, on a balance of probabilities that the Punjab police would be able to locate the claimants anywhere in India, and that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment.

[37]     Having found that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment at the hands of highly-politically connected gangsters, with tacit police support, the panel finds that they have a genuine fear of harm in India, that they have rebutted the presumption of state protection with clear and convincing evidence, and that there is no viable internal flight alternative for them anywhere in India.

CONCLUSION

[38]     Having considered all of the evidence, the panel finds that the claimants face a genuine risk to their lives or to a risk of cruel and unusual treatment or punishment at the hands of highly­ politically connected gangsters, with tacit police support. The panel therefore finds that they are “persons in need of protection” pursuant to section 97 of the Act and accepts their claim.

(signed)           Paul Fitzgerald

December 10, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Document 2.1 – Basis of Claim Form MB8-21731
3 Document 1 – Package of information from the referring Canada Border Services Agency./ Immigration, Refugees and Citizenship Canada. Passport.
4 Document 2.1 – Basis of Claim Form MB8-21731.
5 Document P-1 – Picture of missing children, picture of their son of [XXX] that was missing.
6 Document P-13 – Letter from [XXX], [XXX]’s mother.
7 Document P-5 – Lettre de la Travailleuse sociale, [XXX], le 7 octobre 2019.
8 See for example Iyere v. Canada (MCI), 2018 FC 67, paras. 30-35.
9 Ranganathan v Canada (MCI), [2001] FCR 164,266 NR 380 (FCA), para. 15.
10 Document National 3 – Documentation Package, India, 31 May 2019, tab 10.6: Response to an information request IND106120.E, Immigration and Refugee Board of Canada, 25 June 2018.
11 Ibid.
12 Ibid.
13 Document National 3 – NDP, tab 14.8: Response to an information request IND106289.E, Immigration and Refugee Board of Canada, 14 May 2019.
14 Ibid.
15 Ibid.

Categories
All Countries Haiti

2019 RLLR 3

Citation: 2019 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: September 10, 2019
Panel: Me Jean-Guy Jam
Counsel for the claimant(s): Patrizia Ruscio
Country: Haiti
RPD Number: MB7-18354
Associated RPD Numbers: N/A
ATIP Number: A-2020-01124
ATIP Pages: 000025-000032


REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, [XXX], is a citizen of Haiti. He is claiming refugee protection under section 961 and subsection 97(1)2 of the Immigration and Refugee Protection Act (hereinafter IRPA).

ALLEGED FACTS

[2]       The claimant was born on [XXX], 1980, and is from [XXX]. His father has lived in the United States for several decades. On [XXX], 1993, one of the claimant’s neighbours was killed by armed criminals. On [XXX], 1993, the claimant was caught up in an altercation between protesters and police officers during a pro-Lavalas protest. On that day, when he was 12 years old, the claimant boarded a boat to the United States and on [XXX], he arrived there. Once in the United States, his father only registered him for school. Later, the claimant obtained “Temporary Protected Status” (hereinafter: TPS).

[3]       In 2014 and 2016, the claimant went to Haiti. In [XXX] 2016, the claimant went to see property that his father had purchased several years earlier, but the claimant discovered that the person who had sold his father the land had resold it to a third party.

[4]       When the claimant went to see the property, he was seen by the person who had sold it to his father, and that person thought the claimant was there to take the land back.

[5]       After that, the seller, not wanting to give the land back, hired two individuals to kill the claimant. However, this attempted murder failed because a conflict broke out between the two individuals. Having been informed of this, the claimant, fearing for his safety, quickly returned to the United States, where he continued to live under TPS.

[6]       After Donald Trump became president of the United States, the claimant received a notice from the American government3 on [XXX], 2017, that his TPS would be extended for six months and that he would then have to return to Haiti.

[7]       Accordingly, fearing that he would be deported, the claimant left the United States on [XXX], 2017, to come to Canada. He arrived that same day and claimed Canada’s protection.

[8]       These are, in essence, the facts alleged by the claimant in support of his refugee protection claim.

DETERMINATION

[9]       The claimant is not a “Convention refugee” under section 96 of the IRPA, but he is a “person in need of protection” under subsection 97(1) of the IRPA.

ANALYSIS

Identity

[10]     The panel is satisfied as to the claimant’s identity, which was established through the documentary evidence on the record, including a certified true copy of his passport, the original of which was seized by Immigration, Refugees and Citizenship Canada.4

Section 96 of the IRPA

[11]     Firstly, the panel must determine whether the claimant’s situation has a nexus to any of the five Convention grounds, since the claimant stated that he fears people he described as [translation] “criminals.”

[12]     In this regard, the Federal Court in Ward5 indicates that victims of crime [translation] “do not meet the criteria for establishing the existence of a particular social group.”

[13]     Consequently, the claimant’s refugee protection claim is rejected under section 96 of the IRPA.

Paragraph 97(1)(a) of the IRPA

[14]     The panel finds that the claimant has not satisfactorily established that the agent of persecution is the state, since the claimant never alleged a fear of his country’s authorities or the Haitian police, but rather of criminals.

[15]     Consequently, the panel must determine that the claimant’s refugee protection claim is rejected under paragraph 97(1)(a) of the IRPA.

Paragraph 97(1)(b) of the IRPA

[16]     Now, would the claimant be subjected “to a risk to their life or to a risk of cruel and unusual treatment or punishment”?

Credibility

[17]     With regard to the claimant’s credibility, having heard his testimony and analyzed all the evidence on the record, the panel is prepared to give him the benefit of the doubt with respect to the truthfulness of the facts he alleges in support of his refugee protection claim.

[18]     He responded spontaneously and without exaggeration to the questions put to him by his counsel and the panel. The panel noted no contradiction, implausibility or omission of important facts that would undermine the claimant’s overall credibility. This was despite the panel’s certain reservations regarding the explanations provided by the claimant when he was questioned as to why he had not claimed protection in Canada upon his arrival. However, the panel does not find this fatal in the claimant’s specific case given the overall credibility of his testimony.

[19]     With regard to the application of the definition of “person in need of protection,” there is every reason to believe that the claimant has discharged his burden of proof. In fact, the panel finds that, in his particular case, the claimant is right to fear for his life if he were to return to Haiti.

[20]     Moreover, in making this determination, the panel considered not only the claimant’s testimony and the evidence he filed in support of his refugee protection claim, but also the extensive documentary evidence from independent and reliable sources on the situation in Haiti.

[21]     In fact, the documentary evidence states:

In correspondence sent to the Research Directorate, an official from the National Human Rights Defense Network (Réseau national de défense des droits humains, RNDDH) [4] stated that acts of revenge are generally motivated by political rivalries, the settling of scores, or romantic relationships (RNDDH 8 June 2018). … According to the RNDDH, [translation] “acts of revenge can be targeted or indirect. The idea is to send a message” (RNDDH June 8 2018). Sources stated that those targeted by acts of revenge are either people who have done something wrong in the eyes of the assailant or those close to them (Défenseurs Plus 7 June 2018; Assistant Professor I June 201 8).6 [Emphasis added]

[22]     The documentary evidence also states:

OFPRA adds that [translation] “under these conditions, land ownership disputes are frequently being resolved with weapons, rather than being brought before a judge. An owner of a disputed property may turn to people who have weapons” (France 15 Sept. 2017, 27).7

State protection

[23]     The panel finds that the claimant, in his particular case, cannot expect to obtain the protection of the Haitian authorities. In fact, the extensive documentary evidence from independent and reliable sources states:

However, the RNDDH states that [translation] “the police system is overwhelmed by the insecurity” in the country (RNDDH 3 May 2019, para. 51). In the same vein, the Assistant Professor writes that the PNH “continues to struggle to protect the population from both organized and informal criminals,” and added that, since MINUSTAH’s departure, the PNH has been unable to fully assume its responsibilities (Assistant Professor 20 May 2019). According to the RNDDH, police officers themselves are targeted by criminals, noting that 15 police officers were killed between January and April 2019 (RNDDH 3 May 2019, paras. 2-4). According to the Assistant Professor, police officers do not take initiative in crime prevention and “rarely” conduct criminal investigations (Assistant Professor 20 May 2019). The same source adds that the police “do not feel they have the expertise to investigate crimes or interact with victims or criminals” (Assistant Professor 20 May 2019). In the same vein, the RNDDH representative stated that [translation] “[f]ew police operations are carried out. They are inconclusive. The individuals arrested are generally not involved in the crimes” (RNDDH 17 May 2019). The RNDDH report adds that [translation] “the rare efforts [made by the PNH] to arrest armed criminals mean that, in the majority of cases, the criminals are unconcerned about the courts” (RNDDH 3 May 2019, para. 51).8 [Emphasis added]

Internal flight alternative

[24]     When questioned about an internal flight alternative (IFA) in Jérémie, the claimant stated that it was not feasible, since nowhere in Haiti was safe, implying that he would be found by the person who had sold the land to his father.

[25]     That said, the panel considers that, in the claimant’s particular case, an IFA is not feasible. Moreover, the documentary evidence states the following:

The Chancellor stated that the main way of tracking victims down was “individual networks” (Chancellor 18 June 2018). According to The Assistant Professor, rumours are rife in Haiti and are an effective way of locating people because “Haitians tend to be geographically tied to a small area and so anyone outside of their [usual] circle will be quickly recognized” (Assistant Professor 1 June 201 8).9 [Emphasis added]

[26]     In addition, the same documentary evidence from reliable and trustworthy sources also states:

… The same source indicated that she had experienced this reality when she was trying to find former participants in a study while doing field research, asking neighbours where the former participants were was generally enough to locate them (Assistant Professor 1 June 2018).10

[27]     After analyzing all the evidence on the record, the panel is not satisfied, on a balance of probabilities, that the claimant would not be running a serious risk of persecution if he had to avail himself of an IFA in his country of origin. Moreover, the panel finds that the claimant’s particular situation is such that it would be unreasonable for him to seek refuge in another part of the country.

CONCLUSION

[28]     After analyzing the testimonial and documentary evidence, the panel determines that the claimant [XXX], is not a “Convention refugee” under section 96 of the IRPA, but is a “person in need of protection” under subsection 97(1) of the IRPA.

[29]     Consequently, the panel allows his refugee protection claim.

(signed)           Jean-Guy Jam

September 10, 2019

1 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article I of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Document 5 – Exhibit C-3: Form I-797C, Notice of Action.
4 Document 1 – Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada: Passport.
5  Canada (Attorney General) v. Ward, [1993] 2 SCR 689.
6  Document 3 – National Documentation Package on Haiti (NDP Haiti), June 28, 2019, Tab 7.6: Response to Information Request, HTI106117.FE, Immigration and Refugee Board of Canada, July 3, 2018.
7 Document 3 – NDP Haiti, Tab 7.1: Response to Information Request, HTI106116.FE, Immigration and Refugee Board of Canada, June 19, 2018.
8 Document 3 – NDP Haiti, Tab I 0.2: Response to Information Request, HTI 106306.FE, Immigration and Refugee Board of Canada, June 17, 2019.
9  Supra, footnote 6.
10 Idem.

Categories
All Countries Nigeria

2019 RLLR 1

Citation: 2019 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Marcelle Bourassa
Counsel for the claimant(s): Richard Wazana
Country: Nigeria
RPD Number: TB9-04813
Associated RPD Numbers: TB9-04814/TB9-04815/TB9-04816
ATIP Number: A-2020-01124
ATIP Pages: 000001-000013


REASONS FOR DECISION

[1]       [XXX] (“the male claimant”), [XXX] (the “female claimant”) and their children, [XXX] (the “minor claimants”), claim to be citizens of Nigeria and claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA“).i

[2]       The male claimant was appointed as the Designated Representative for the minor claimants.

[3]       The panel has considered the Chairperson’s Guidelines on Women Refugee claimants Fearing Gender-Related Persecution in assessing the evidence.ii

[4]       The panel also considered written submissions from counsel received on July 15, 2019. The panel provided post-hearing disclosureiii and provided counsel with an opportunity to provide further written submissions by July 29, 2019.

ALLEGATIONS

[5]       The specifics of the claims are in the narrative of the male claimant’s Basis of Claim form (BOC).iv In short, the male claimant fears persecution from then [XXX] and his gang. The male claimant alleges that [XXX] will always be after him as he dared to oppose him for the coveted position of Chairman.

[6]       The male claimant stated that he was elected to the position of [XXX] in [XXX] in Lagos State in 2012.v He alleges that he demonstrated his intention to be elected to the position of Chairman of the Unit in the 2016 elections and that his candidacy was opposed by [XXX] who also wanted the position. The claimant alleges that [XXX] is well connected politically.

[7]       The male claimant alleges that he received threatening phone calls from [XXX] and from other unknown callers. He further alleges that on [XXX], 2016, about one month before the elections, he was attacked by [XXX] and his gang on his way in to work. He managed to escape and fled to [XXX] in Ogun State.

[8]       The male claimant alleges that the shop where his wife sells [XXX] was ransacked by three members of [XXX] gang in order to force him out of hiding. They threatened to kill the male claimant. The female claimant testified that she and the woman who assisted her in her shop managed to escape.

[9]       The male claimant alleges that about three days after the attack on his wife’s shop, he was attacked at the place where he was staying in [XXX]. He was injured in the attack but managed to escape and flee to [XXX] in Ogun State. His wife and children relocated to her mother’s house in [XXX] in Ogun State.

[10]     The male claimant alleges that he moved around until he and the female claimant fled Nigeria on [XXX], 2017 and travelled to the United States, where their daughters joined them. The family travelled to Canada and arrived on [XXX], 2018.

[11]     Since their arrival in Canada, the female claimant has been diagnosed as HIV positive and alleges a well-founded fear of persecution if she were to return to Nigeria as a woman living with HIV.

DETERMINATION

[12]     The panel determines that the male claimant has failed to establish, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the proposed internal flight alternative (IFA) of Port Harcourt under section 97(1) of IRPA. However, the male claimant has established, on a balance of probabilities, that in the personal circumstances of the family including the two minor claimants, the proposed IFA of Port Harcourt would be objectively unreasonable or unduly harsh.

[13]     Additionally, the panel determines that the female claimant faces a serious possibility of persecution on the basis of her membership in a particular social group as a female living with HIV and that there is no IFA.

ANALYSIS

Identity Is established

[14]     The panel is satisfied that the personal identities and country of reference for all of the claimants have been established, on a balance of probabilities, by the male and female claimants’ testimony, and by their Nigerian passports.vi

Is there a viable IFA in Port Harcourt?

[15]     In order to determine whether a viable IFA exists, the panel must consider a two-prong test.vii The panel must be satisfied that, on a balance of probabilities, there is no serious possibility of persecution in the IFA and/or no risk to life or risk of cruel and unusual treatment or punishment in the part of the country in which it finds an IFA exists. Furthermore, conditions in that proposed part of the country must be such that it would not be unreasonable, in all circumstances, including those particular to the claimants, for them to seek refuge there.

Jurisprudential Guide TB7-19851

[16]     The Chairperson has identified the Refugee Appeal Division (“RAD”) decision for TB7- 19851 as being a jurisprudential guide (the “JG”). This JG addresses internal flight alternatives in major cities in south and central Nigeria for claimants fleeing non-state actors.

[17]     The panel has considered the applicability of the JG that involved a woman fearing her family, with allegations of a forced marriage and female genital mutilation. The panel is not adopting the JG for its factual similarity but for its analysis of similar components to someone in Nigeria fearing non-state actors, being assessed on IFA. As the claimants had been residing in Lagos State, the panel proposed Port Harcourt as an IFA location.

There is no serious possibility of persecution or of s.97 harm in Port Harcourt

[18]     The panel is guided by the analysis in the JG at paragraphs 17 to 19. Most Nigerians fearing non-state actors can safely relocate to another large urban centre. Nigeria is a large country with a population of 203,452,505 covering an area of over 900,000 square kilometres.viii As noted in TB7-19851, there are several very large, multilingual, multiethnic cities in south and central Nigeria, including Port Harcourt (2.343 million), where persons fleeing non-state actors may be able to establish themselves depending on their own particular circumstances.ix

[19]     The male claimant has the burden of providing evidence that the agent of harm has the ability to locate him in the proposed IFA and the panel is not persuaded that he has met his onus.x

[20]     The male claimant alleges that the agent of harm, [XXX], is highly connected within the [XXX] which is a national organization. He alleges that [XXX] will always be after him as he dared to oppose him for the coveted position of Chairman. Once he returns to Nigeria he could easily be found within the union.

[21]     The panel is not persuaded based on a balance of probabilities and the evidence before it that the male claimant needs work as a [XXX] and thereby be located within the [XXX].

[22]     Furthermore, the panel is not persuaded, on a balance of probabilities. as to the continued interest in the claimant by the agent of harm, [XXX], if he were not involved in the [XXX]. When asked by the panel about the outcome of the 2016 election for the position of Chairman of the unit the male claimant explained that he did not trouble himself to find out. This is so even though he testified that he had been in touch with other Unit Chairmen of the [XXX] through his brother.

[23]     Therefore, the panel finds that the male claimant has not established a serious possibility of persecution or, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the proposed IFA of Port Harcourt.

The proposed IFA is not reasonable

[24]     In considering this IFA, the panel is mindful that the Federal Court of Appeal has set a very high threshold for the unreasonableness prong of the IFA test. Indeed, “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant.”xi The Federal Court of Appeal has also been clear that the personal circumstances of a claimant must be central to the reasonableness analysis.xii The question to be answered on the second prong of the test is whether expecting a claimant to relocate to the proposed IFA location would be “unduly harsh.”xiii The panel is also guided by the analysis of the RAD in the above noted jurisprudential guide.

[25]     The claimants are a married couple with two children. In addition, the female claimant has been diagnosed as HIV positive since her arrival in Canada. She submitted a medical reportxiv from Dr. [XXX] in [XXX] that confirms her HIV positive diagnosis.

Transportation, Travel and Language

[26]     The panel must consider the male claimant and his family’s ability to travel safely and stay in the IFA without facing undue hardship. As per the JG, the panel notes that Nigerians have the right to reside in any part of the country and the documentary evidence shows that all main centers are linked by road; in addition, many of the large urban centers boast international airports, which mitigate in favour of viability of the proposed IFA in terms of transit and travel for a given claimant without facing undue hardship. The panel notes that Port Harcourt has an airport.xv The panel finds that travel to Port Harcourt does not render Port Harcourt to be an unreasonable IFA.

[27]     English is the official language in Nigeria, and a large percentage of the population speaks Hausa, Yoruba, Igbo (IBO), and Fulani in the major centres, in addition to over 500 indigenous languages. Fluency in one or more of these languages will mitigate against a finding of unreasonableness due to a language barrier in an IFA where a claimant speaks English or the regional languages of Hausa, Yoruba, Igbo (Ibo) and, or Fulani, as appropriate.

[28]     The male and female claimants provided their testimony through a Yoruba interpreter. The male claimant stated that he understands English and also speaks a little English. The panel notes that both claimants speak Yoruba and that Yoruba is widely spoken across Southern Nigeria including specifically in Port Harcourt.

[29]     The panel finds that language does not render Port Harcourt to be an unreasonable IFA.

Religion and indigeneship

[30]     The male and female claimant identify as Muslim and Yoruba.

[31]     The panel finds for the same reason as in the JGxvi, the factors of religion and indigeneship would not rise to the level necessary to make the proposed IFA unduly harsh or unreasonable.

Education and Employment

[32]     The male claimant stated that he has only worked as a [XXX] except when he worked briefly as a [XXX] person a long time ago.  He does not believe that he could find work [XXX] for a company. He added that people prefer to buy new [XXX] as opposed to [XXX] their old ones. It would not be reasonable to expect him to find other work with a high school education.

[33]     The documentary evidence indicates that there is a high rate of unemployment in Nigeria generally, and that obtaining employment can be difficult. The documentary evidence further indicates that the total years of education completed on average for Nigerian men is 9 years, whereas for women it is 8 years.

[34]     The male claimant has 10 years of completed education which is just above the average for Nigerian men. While the male claimant’s work experience has been mostly as a [XXX], he has done other work, namely as a [XXX] person. He need not work as a [XXX].  He also has some experience at the management level in running the Unit. The panel finds the male claimant would not have be in a worse situation as compared to the average Nigerian man in finding employment had it not been for his wife’s HIV diagnosis.

[35]     The female claimant only has six years of completed education which is below the average for Nigerian woman. The claimant operated a shop while living in Nigeria where she sold [XXX] such as [XXX] and [XXX]. The panel finds that the female claimant’s personal circumstances as a woman living with HIV do not weigh in favour of her being able to find employment as compared to the average Nigerian woman or operate a business selling [XXX].                                                

[36]     The female claimant testified as to the high degree of social stigmatization for persons diagnosed with HIV. So great is her concern, that the only person in her family who knows about her HIV status is her husband.

[37]     The documentary evidence demonstrates that persons living with HIV and AIDS, and women in particular, face pervasive social stigma and discrimination. According to the US Department of State Report,xvii persons with HIV/AIDS, often lost their jobs.

[38]     Other objective documentary evidencexviii also notes that persons living with HIV and their family members (emphasis added) experience stigma and discrimination on a daily basis as a result of their HIV status, by work place colleagues and at the community level. There are also reported cases of social exclusion and discrimination at the community level by mostly women living with HIV and by workers at the work place and reported cases of social and work place unlawful termination, rejection and exclusion.

[39]     Based on the foregoing, the panel finds that neither the male or female claimants are likely to find employment in Port Harcourt and that conditions in the IFA would rise to the level necessary to make the proposed IPA unduly harsh or unreasonable.

Accommodation

[40]     The documentary evidence indicates that rent can be steep in location such as Port Harcourt where the cost of living is high. Given the above-noted documentary evidence that demonstrates that persons living with HIV and their family members experience stigma and discrimination on a daily basis as a result of their HIV status, the panel finds that the male claimant and his family are not likely to be able to secure accommodation in Port Harcourt. The panel finds that conditions in the IFA rise to the level to make Port Harcourt objectively unreasonable or unduly harsh.

Availability of medical and mental health care and education

[41]     The female claimant submitted a medical reportxix from her doctor that indicates she is currently maintained on [XXX], 1 tablet daily and [XXX] and is stable. Her HIV viral load is undetectable.’

[42]     The female claimant stated that she has days when she feels fine and other days when she does not. She is well treated by her doctor and nurse in Canada and has access to anti-retroviral medication. She testified that she can lead a normal life in Canada even though she is HIV positive.

[43]     In addition to her above concerns about stigmatization and discrimination of persons living with HIV, she is concerned about accessing medical services and what will happen if she stops taking her anti-retroviral medication.

[44]     The documentary evidencexx indicates that anti-retroviral treatment is provided free of charge to eligible patients. However, there are recurring drug shortages of anti-retrovirals and that facilities that administer anti-retrovirals to patients experience stock-outs.

[45]     It is also noted that just 33 per cent of all people living with HIV were receiving anti­ retroviral treatment in 2017. It was also noted that weaknesses in the health system exist and create a barrier to people accessing or staying on treatment.xxi

[46]     The objective documentary evidencexxii also notes that persons living with HIV and their family members (emphasis added) experience stigma and discrimination on a daily basis as a result of their HIV status by caregivers at health centres.

[47]     Based on the foregoing, the panel finds that conditions in the IFA would rise to the level necessary to make the proposed IFA unduly harsh or unreasonable.

[48]     In consideration of all of the above circumstances, the panel finds, on a balance of probabilities, that the male claimant has shown that in the personal circumstances of the family, including the two minor claimants, the proposed IFA of Port Harcourt would be objectively unreasonable or unduly harsh.

There is a serious possibility of persecution for the female claimant because of her HIV positive diagnosis

[49]     The panel also finds that female claimant’s personal circumstances and vulnerabilities as a woman living with HIV when viewed in light of the objective documentary evidence as referred to above are such that she could be subject to discrimination that could amount to persecution cumulatively should she return to Nigeria. The documentary evidence as referred to above notes that discrimination against persons living with HIV pervades all aspects of life, including healthcare and employment that cumulatively could lead to an insecure life for the female claimant and rise past the level of discrimination to persecution.

[50]     Therefore, the panel finds that there is more than a mere possibility that the female claimant could face a well-founded fear of persecution based on her membership in a particular social group as a woman living with HIV.

[51]     Furthermore, the panel finds that state protection would not reasonably be forthcoming in her case on a balance of probabilities. The documentary evidence indicates that Nigeria is taking some steps to protect persons living with HIV and AIDS. For example, the United States Department of State Report, at item 2.1 in the NDP,xxiii reports that authorities and NGOs sought to reduce the stigma and change perceptions through public education campaigns.

[52]     A national anti-discrimination law came into place in 2014.xxiv However, this has not yet translated down to the community level. As noted by one source, most Nigerians living with HIV still nurture the fear of the unknown, and therefore hardly report incidents of discrimination and violence against them.xxv The few that report have their incident cases first filed at the community level through their support group to the police station, and most times through the National Human Rights Commission (“NHRC”).  Most of those cases filed at the first level of the NHRC do not see the light of day because of fear of publicity and breach of confidentiality.xxvi

[53]     Most of the people living with HIV/AIDS whose rights were violated do not recognize their fundamental human rights or know where to report the cases and/or document such cases, while the few who are knowledgeable about their rights could not get justice due to the high level of stigma and ignorance at the judiciary and legal system of Nigeria.xxvii

[54]     Based on the female claimant’s personal circumstances and vulnerabilities as a woman living with HIV, as well as the documentary evidence, the panel finds on balance of probabilities that the female claimant has rebutted the presumption of state protection. Adequate state protection would not reasonably be forthcoming to the female claimant.

[55]     Furthermore, the panel finds that there is no IFA for the female claimant based on her personal circumstances and vulnerabilities as a woman living with HIV, given that there is a serious possibility of persecution throughout Nigeria.

CONCLUSION

[56]     The panel finds that the male claimant has failed to establish, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the proposed IFA of Port Harcourt under section 97(1) of IRPA. However, the male claimant has discharged the burden to show, on a balance of probabilities, that in their personal circumstances, the proposed IFA of Port Harcourt would be objectively unreasonable or unduly harsh for all of the claimants as a family. Additionally, the panel finds that the female claimant faces a serious possibility of persecution throughout Nigeria on the basis of her membership in a particular social group as a female living with HIV and that there is no IFA

[57]     The panel accordingly accepts each claim.

(signed)           M. BOURASSA

October 28, 2019

i Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
ii Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
iiiiii Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
iv Exhibit 2.1.
v Exhibit 5, Disclosure received on June 28, 2019.
vi Exhibit 1, Package of information from the referring CBSA/IRCC.
vii Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.); Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (C.A.) at p. 710.
viii Exhibit 3, National Documentation Package for Nigeria (30 April, 2019), item 1.6.
ix TB7-19851, para 19.
x Ekechukwu v. Canada (Citizenship and Immigration), 2016 FC 1142 (Can LII), at para. 38.,
xi Ranganathan v. Canada (MCI), 2000 CanLII 16789, at para. 14.
xii Rasaratnam v. Canada (MEI), [1992] 1 FC 706, at p. 710.
xiii Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011.
xiv Exhibit 5, Disclosure received on June 28, 2019.
xv Exhibit 3, National Documentation Package, item 1.1.
xvi TB7-19851, paras 28, 45 and 46.<
xvii Exhibit 3, National Documentation Package, item 2.1.
xviii Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
xix Exhibit 5, Disclosure received on June 28, 2019.
xx Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
xxi Ibid.
xxii Ibid.
xxiii Exhibit 3, National Documentation Package for Nigeria (30 April 2019), item 2.1.
xxiv Exhibit 3, National Documentation Package, 30 April 2019, Items 2.2 and 2.6
xxv Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
xxvi Ibid.
xxvii Ibid.