Tag: No Nexus: Criminality/Corruption

Categories
All Countries Mexico

2019 RLLR 23

Citation: 2019 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Kevin Fainbloom 
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TB8-27168
Associated RPD Number(s): TB8-27821, TB8-27316
ATIP Number: A-2021-01124
ATIP Pages: 000148-000150

DECISION

[1]       MEMBER: So, these are the reasons into the determination that the, that Mr. [XXX], [XXX], his wife [XXX] and their youngest son [XXX] are people in need of protection. The claimants are citizens of, yeah, the-, the-, the claimants that remain at this point in the claim are citizens of Mexico claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[2]       The allegations of the claimants is contained in the Basis of Claim form narratives. I’m going to briefly summarize those allegations. [XXX], the principal claimant was a [XXX] and dump [XXX] and [XXX] in Mexico from [XXX] 2014 until [XXX] 2017. He worked in a number of States that bordered the United States. In [XXX] 2016, he was befriended by 8 men who became very friendly with him and they spent some time eating together at a near-, at a restaurant. After a number of different encounters with the same men, the men indicated to the principal claimant that they wanted him to work for their company. These men indicated they knew about his wife, his children, he-, they knew where they lived and so on. They said that they were members of the Gulf cartel and they needed his assistance.

[3]       The principal claimant told them he needed time to think about this offer. On [XXX] 2016, the principal claimant was kidnapped, taken to a ranch and tortured. They showed him on a video phone that his wife had been kidnapped as-, had been taken, she was being-, and she was being raped, while their youngest child-, while the child was in a different room. They also showed him a video in which they were killing people and chopping up their bodies. They ordered the principal claimant to get the company’s [XXX] and take them to the border with the United States. On [XXX], they shot up his car and left pictures of people that had been chopped up. On [XXX], they-, they went to his house, kidnapped him from the home, took him to an isolated area where he was beaten. Another man was brought to this area and murdered in front of the principal claimant. The principal claimant returned to his work on [XXX] the [XXX], he gave notice that the was going to be resigning from his position. He quit his job on [XXX] the [XXX]. Two days later he and the other claimants relocated to hide themselves at the principal claimant’s in-law’s home. Unfortunately, the death threats continued, the principal claimant was able to leave Mexico and travelled and made his way to Canada. His wife and two children remained in Mexico and left at a later time, until July of last year when they-, they were all joined together in Canada. They are now afraid to return to Mexico.

[4]       After the purposes, the reason I just want to clarify that the claim of Justice [XXX], this couples’, this couples’ oldest child was withdrawn at the outset of hearing as this child is an American citizen and who is not intending to pursue a claim against the United States.

[5]       The three remaining claimants that is [XXX], [XXX] and [XXX] I find that they are not Convention refugees as they do not have a well-founded fear of persecution for a Convention ground in Mexico. However, I find that they are people in need of protection, as their removal to Mexico would subject them personally to a risk to their lives.

[6]       The claimant’s identities as-, as citizens of Mexico is established by the documents on file which include copies of their passports.

[7]       With respect to credibility, as I indicated to the principal claimant, I have some concerns which are properly called plausibility concerns. Specific plausibility of the family remaining at their in-law’s home after they had been found there. The plausibility of their continuing to send their son to school. The plausibility of the principal claimant giving notice that he was going to be leaving his work, rather than just working-, just leaving quietly. However, notwithstanding these concerns, there are a number of corroborative documents that are helpful in establishing the credibility. I do believe the principal claimant has been traumatized in some fashion. The female adult claimant was questioned and provided some evidence which I thought was quite credible and referred to her being subject to rapes. The claimant’s allegations are not inconsistent with country conditions and the types of things that can happen to people there who are-, who are in some form of conflict or trouble with the-, with the Gulf cartel. So, on a balance of probabilities, I accept the claimant’s allegations to be credible. That is, I accept that because of the principal claimant’s ability as a [XXX], as a [XXX], he was of interest to the Gulf cartel. I accept that he was pursued by the Gulf cartel to work for them and I accept that Gulf cartel was intent on harming him and his family when they came to believe that he was not going to be co-operative.

[8]       Given that I accept those allegations, the current conditions in Mexico indicate that there is an objective basis to their fear of returning to that country. Gulf cartel and other-, other organized criminal groups have been implicated in numerous killings and acting with impunity and most tragically at times in league with corrupt federal state, local and security officials. Criminal organizations have been involved in forced disappearances, torture, sexual violence, kidnappings and-, and so on. So, I believe if these claimants return to Mexico, their lives would be at risk of these agents of harm.

[9]       I have considered whether adequate state protection would be available or whether there might be a viable internal flight alternative. I find given the complicity, the documents referred to of the criminal organizations working with federal, state, local and security officials, that adequate state protection would not be provided. I would note, that the principal claimant described how he would be escorted by the army and the police when he [XXX], they wanted him to drive to the-, to the border with the United States, which obviously suggests again, corrupt officials being involved in these activities. So, I don’t believe adequate state protection would be available with respect to a viable internal flight alternative, I find there would not be one. There’s insufficient evidence before me that the Gulf cartel cannot reach to anywhere in Mexico, if so desired. In particularly, in light of the corruption, I’ve just referred to it is quite reasonable to assume that if they were intent on finding someone they could find a person who is living above ground, that is leaving and operating in-, in any free manner. So, I did not believe there would be a­ ‘ a viable internal flight alternative.

[10]     So, to conclude, I find the claimants face a risk to their lives if returned to Mexico and accordingly, I find the claimants to be people in need of protection pursuant to Section 97(1)(b) of the Immigration and Refugee Protection Act.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

2019 RLLR 74

Citation: 2019 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Shaw
Counsel for the claimant(s): Kieran Verboven
Country: El Salvador
RPD Number: VB7-06918
ATIP Number: A-2020-01274
ATIP Pages: 000221-000226

[1]       PRESIDING MEMBER: So [XXX], [XXX] and [XXX] you claim to be citizens of El Salvador.

[2]       You claim refugee protection pursuant to Sections 96 and 97 [1] of   Immigration and Refugee Protection Act.

[3]       The Claimants’ Basis of Claim form allegations found in Exhibit 2. The Principal Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1981. The Principal Claimant’s wife, the Associate Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1984. The Principal Claimant and the Associate Claimant’s daughter is the minor Claimant. [XXX]. She’s born on [XXX], 2016.

[4]       The Claimants face a risk to their lives from MS13 because originally the Principal Claimant sent them to jail and then confronted them later. It began on [XXX], 2017 when the Principal Claimant was attacked by three gang members for no reason. In the city [XXX] in Antigua Cuscatlan C-U-S-C-A-T-L-A-N. The gang members had asked for money and then they said they were going to harm the Associate Claimant. And three of them began to attack the Principal Claimant.  He was lynched and thrown into the street and run over by— twice by a car, which fractured his [XXX] and his right [XXX]. He would have died but he was assisted by security employees who helped him before the police arrived. The gang members — two of the gang members were captured of the three. Due to the attack the Principal Claimant spent more than [XXX] months in hospital recuperating. The legal matter against the gang members was botched by the general prosecutor of the Republic and also by the judge. The judge admitted evidence that wasn’t valid. The criminal offences kept changing which would benefit the gang members. The judge granted them alternative measures to provision of detention, and so forth.

[5]       All this led to the gang members learning that where the Claimant’s family lived. They kept searching for the Claimant— for the Principal Claimant trying to intimidate him and trying to force him to withdraw his lawsuit and trying to locate him even while he was hospitalized. After he left the hospital, [XXX] 2007, relatives of the gang members came to the Principal Claimant’s home to tell him that if he didn’t drop the charges they would kill the Principal Claimant. Ultimately he had to reconcile with the gang members and they reached an agreement so that they would not kill him. The gang members also told him that he would need to leave the zone or else they would kill him.

[6]       The Claimant— Principal Claimant went to the general prosecutor to get protection measures but all he negotiated with the gang was to get them to give him $1500 each from each of them to facilitate his departure from the area and to prevent the killing of the Principal Claimant. The Associate Claimant was also at risk because she was a witness to the events.

[7]       The Claimants started moving and went back to their studies. Each of them studied [XXX]. The Principal Claimant became a [XXX] to the [XXX]’s office in San Salvador since mid 2012. The Principal Claimant would observe the gang members would come to [XXX]’ s office asking for him. This made him afraid to show the problems he had with the gang. The Principal Claimant decided to transfer to another department to avoid the risk. The Principal

[8]       Claimant was then appointed by the [XXX] to [XXX]. He had to negotiate with companies that are under the control of the gangs. The Principal Claimant gave up that work in XXXX 2015 for his safety. He there after decided to open his [XXX]— his own [XXX]. He was asked by a particular bank to carry out a [XXX] of five cases which had been stagnate for years and they haven’t been able to recover properties. The Principal Claimant was able to find owners of one property in the United States. He learned that the house that he was getting information about was filled with gang members and that’s why the MS had decided to keep that house. The family had fled El Salvador for the United States to avoid being killed.  The Principal Claimant was able to negotiate the return of the house to the bank. Where the Principal Claimant would be the [XXX] and be able to authorize this transaction.

[9]       The Principal Claimant learned in [XXX] 2016 that the men who were living inside the house were the men who had attacked him in 2007 in the initial transaction he had with the gang. This was in [XXX] 2017.  The gang insisted that the Principal Claimant negotiate this transaction. In [XXX] 2017, gang members approached the Principal Claimant and told him that his luck would be over unless he returned that house to the Maras (ph.), to the MS. They knew all the details about his parents and they threatened his life.

[10]     On [XXX] while the Principal Claimant was in a car with his wife and daughter, two persons followed them on a motorcycle. They intercepted the car and they took out a 9mm black weapon out of a bag. The Claimant hid in different hotels and left the country eventually getting to Canada to claim for refugee protection.

DETERMINATION

[11]     I find that the Claimants are persons in need of protection. In that the removal to El Salvador will subject them personally to a risk to their lives for the following reasons.

ANALYSIS

[12]     The Claimants’ identities as nationals of El Salvador are established by their testimony and the supporting documentation filed, namely their passports found in Exhibit 1. I have found the Claimants to be credible witnesses. They did not exaggerate about the amount of information they are aware of, about their situation since they came to Canada. Moreover the Claimants corroborated every allegation contained in their Basis of Claim forms with the 257 pages of supporting documentation found in Exhibit 4. These include their [XXX], the legal documents about the initial incident where in the Principal Claimant was run over by cars, they arrested the men and evidence that the Claimant was in the hospital, the detentions of the gang members  for five months, the conditional suspension procedure, the judicial errors in this case, evidence that the Claimant fled and was hiding in different houses and suffering from [XXX] and [XXX], witness to the events of 2007, evidence about the motorcycle  incident, that the Claimants  were constantly fleeing and  hiding  in  houses, medical evidence from the hospital, confirmation the Principal Claimant worked at the various locations and doing the work that he said he was doing, including that he recovered debts and so forth.

[13]     The Claimants’ testified today that the parents of the Principal Claimant are still in hiding and never go outside.  They are currently living in Santa Ana.  And even here in last May 2018 gang members were asking neighbours of the Claimant’s parents where the Claimants were. There’s evidence that the gangs are still searching for the Claimants to this day.

[14]     I have considered— and so I thus find that— I have considered whether the Claimants’ are Convention refugees. For the Claimants to be Convention refuges their fear of persecution must be by reason of one five grounds enumerated in the Convention refugee definition. I find that the Claimants’ fear of persecution is criminality and criminality is not a Convention ground. I therefore find that the Claimants’ are not Convention refugees.

[15]     The Claimants alleged that if they return to El Salvador they will be subjected to a risk to their lives by the MS13. I find that on a Balance of Probabilities that they have established this. The gang has been after the Claimant since 2007. First in connection to    the Claimant’s having the gang members incarcerated and for not dropping charges against them with regard to the aggravated assaulted perpetrated against the Principal Claimant. The gang members have been asking for the Claimant since mid-2012 again when he was working for [XXX]’s office.  In this job he made more enemies with the MS by evicting them from the market which had been a stronghold of the MS gang. So the MS gang only, by this point in 2012, had increased interest in the Claimant than in the originally in 2017. And after the Principal Claimant decided to leave this job out of fear of the gangs, his next position put him back in front of the gang again for trying to evict them from their headquarters, the house that got re-deeded back to the bank. The Principal Claimant was told in [XXX] 2017 that he was a dead man. They threatened the Claimants on [XXX] and took out a gun on their car which had all of the Claimants in it. Even when the Claimants were hiding they were found over and over again. I thus find that on a Balance of Probabilities all of the Claimants are at risk of harm pursuant to Section 97.

[16]     National Documentation Package item 7.2 and 7.3 of the National Documentation Package dated September 28— September 28, 2018 indicates that El Salvador has become the most violent in the world that is not in active warfare. There are approximately 18 murders a day. A 70 per cent increase compared to the previous year. Making El Salvador the highest murder rate for any country in the world in almost 20 years.

[17]     Item 7.2 of the National Documentation Package indicates that these numbers do not include the unreported murders or the hundreds or more disappearance cases. Gang related violence is the proximate and cause for many individuals and families fleeing El Salvador and becoming internally displaced as the Claimants had been. At present there are approximately 300,000 El Salvadorians who are internally displaced.  Gang violence in El Salvador is an immediate pre cursor to displacement. Entire families, like your own, are caught up in this violence without end. That’s Exhibit 3, National Documentation Package Item 7.2.

[18]     I find that the authorities in El Salvador have consistently failed to assist individuals and prevent displacement. In your case they assisted the displacement and made a deal to get you out of town. To create your own displacement instead of protecting you.  And the authorities have, moreover, have shown a difference to the plighted victims of violence and have thrown their back on their own citizens. The government officials botched the entire 2007 case against the gangs. And instead of following through on the manner, the Claimants were forced, again as I said, to leave town to protect their own lives.

[19]     The article Gang Based Violence and Internal Displacement indicates that the police, attorney general and prosecutors office discourage citizens from reporting crimes. They refuse to take denouncements or refuse to take responsibility for accepting reports of crime. Referring victims, witnesses and family members to other offices or agencies. The El Salvadorian state is unable to protect victims of crime, witnesses of crime or people who have participated in investigations or reported crime.

[20]     In many cases after having sought out the police or other government agencies, like yourselves, victims continue to suffer threats, attacks, violence and attempts on their lives. When the government representatives fail to response victims and survivors in these cases are forced to go hungry even sleep on the street, stay in deplorable conditions. In some cases, victims or family members are killed after seeking state protection. And media reports of the murder of the eye witnesses and those who testify at trial abound.

[21]     Item 7.13 and Item 2.3 Freedom of the World. There is a slowness in the state’s response to the seriousness case of harassment, abuse or violence that leaves victims in danger. Including cases involving persons like yourselves. There appears as well to be a failure on behalf of the judicial branch. The judicial system in El Salvador is weak and plagued with corruption. This is what the Claimants have alleged as well. With all of this there has been a creation of impunity from criminal prosecution as you experienced. Moreover there are frequent cases in the national news of violent deaths of those who report or witness crimes. These documents indicate that there are close ties between some government representatives and organized criminal structures. In a number of cases, links between local government and the police force and the gangs operating in communities are evident. This contributes to increased threats as stated and prevents the pursuit of justice and results in further victimization of citizens and victims. See Item 7.2, 7.13, 2.3, 2.1 of the National Documentation Package.

[22]     The United States Department of State report at Item 2.1 of the National Documentation Package indicates that corruption is widespread,  highlighting the weaknesses in the judiciary and security forces have contributed to a high level of impunity. According to Freedom House, Item 2.3 corruption continues to be a serious problem with few officials facing charges.

[23]     For all these reasons I find that the presumption of state protection has been rebutted. I have considered whether you face a risk throughout the country. I find that you would face— each of you face a risk to your lives on a Balance of Probabilities throughout El Salvador.

[24]     As noted in the National Documentation Package gang based violence article at Item 7.13 the MS reach extends across Central and North America. Estimates of active gang membership rang from 54,000 to 80,000 persons in El Salvador, Guatemala and Honduras. The gangs are now present in each of El Salvador’s 14 regional departments controlling entire neighbourhoods and imposing violence and fear on the population. Item 7.2 of the National Documentation Package.

[25]     The gangs are everywhere. If the Claimants were to move anywhere in El Salvador there is gang presence and their numbers are very high and they are always looking around for who is entering a neighbourhood. The Claimants cannot move anywhere in the country without their presence being learned by the gang. And for this information to be gather by the gangs. The gang presence is so large in El Salvador I find that the Claimants face a risk to their lives throughout El Salvador. There is no Internal Flight Alternative.

CONCLUSION

[26]     For the foregoing reasons I conclude that the Claimants are persons in need of protection and I therefore accept their claims.

[27]     And that’s the end of my decision and I will go off the record at this time.

—PROCEEDINGS CONCLUDED

Categories
All Countries Yemen

2019 RLLR 81

Citation: 2019 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: November 29, 2019
Panel: Harry Dortelus
Counsel for the Claimant(s): Jonathan Richard J Lage
Country: Yemen
RPD Number: MB9-05137
ATIP Number: A-2020-01459
ATIP Pages: 000011-000014

REASONS FOR DECISION

EXPEDITED PROCESS

[1]       The Tribunal issues this decision without a hearing in accordance with paragraph 170(f) of the IRPA and the Policy on the Expedited Processing of Refugee Claims by the Refugee Protection Division.

[2]       The following is the decision related to the refugee claims of: Mr. [XXX]. He alleges that he is a citizen of Yemen and is claiming refugee protection as “Convention refugee” and as “persons in need of protection” under sections 96 and 97(1) of the Immigration and Refugee Protection (IRPA).

DECISION

[3]       The Tribunal concludes that the claimant is a person in need of protection under section 97 of IRPA.

ANALYSIS

[4]       The determinative issues are identity and credibility.

IDENTITY

[5]       The claimant’s name is as indicated in his Yemeni passport: [XXX].

[6]       The claimant has established his identity by means of the certified copy of his Yemeni passport which was seized by Canadian authorities when he claimed for asylum.1

[7]       The claimant lived in Saudi Arabia from 2011 until February/March 2016 according to his Generic Application Form and his Schedule A Form. He moved to the USA to Study in [XXX] or [XXX] 2016 and never had any problem in Yemen, according to his CBSA interview dated March 12, 2019. He left the U.S. to come to Canada on [XXX] 20192, to claim asylum.

Allegations

[8]       The story of this claim is as follows.

[9]       The claimant alleges that he is a citizen of Yemen but he was born and resided in Saudi Arabia and never loved or resided in Yemen. He says that he is married to a Saudi citizen but has no permanent residence in that country or citizenship. He fears of being deported to Yemen where he may be targeted by the militias, including the houthis, as an outsider.

[10]     He alleges that his relatives were assassinated in Yemen in 1974, 2013 and 2015 and he has no known relatives in Yemen. He is afraid to return to Yemen because, as a Yemeni from abroad, he could be targeted by various militias there.

[11]     In his interview with CBSA authorities, the claimant recognized that he had no personal history of persecution or harm in Yemen3.

CREDIBILITY

[12]          The claimant has established, on the balance of probabilities, that as a young Yemeni citizen who never lived or resided in that country, that he may face harm because of the ongoing civil war in Yemen.

[13]     The evidence shows that he was born in Saudi Arabia and married a Saud citizen, which does not grant him the right of citizenship in Saudi Arabia. His family also resided in Saudi Arabia and outside Yemen, which would leave the claimant vulnerable if he was to be sent to Yemen.

[14]     The documentary evidence shows that Yemen is not governed by a strong central government and various militias control several parts of the country and as a person who never lived in Yemen and carries foreign identity documents, the claimant could easily become identifiable thus a target of those militias.

[15]     Given the fact that there is no state protection and the situation is similar all over the country, the Tribunal concludes that there is a risk to the claimant’s life if he was to be sent back to Yemen.

DECISION

[16]     Therefore the claim is accepted.

(signed)           Harry Dortelus

November 29, 2019

1 Notice of Seizure of the claimant’s Yemeni passport dated March 12, 2019.
2 Canadian Border Services Agency (CBSA) interview dated March 12, 2019.
3 Note No. 2.

Categories
All Countries El Salvador

2019 RLLR 61

Citation: 2019 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2019
Panel: D. Marcovitch
Counsel for the claimant(s): Adela Crossley
Country: El Salvador  
RPD Number: TB8-09319
Associated RPD Number(s): TB8-09330, TB8-09365, TB8-09366
ATIP Number: A-2020-01274
ATIP Pages: 000151-000155

DECISION

[1]       MEMBER: I’ve considered your testimony as well as the other evidence in this case and I’m ready to render my decision orally.

[2]       [XXX], [XXX] who I will refer to as the principal claimant, [XXX], and [XXX] are citizens of El Salvador and are requesting protection under Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

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

[4]       The specific details of this claim are set out in the Basis of Claim Form of [XXX].

[5]       In short, the claimants fear the MS-13 gang in El Salvador as a result of years of extortion and threats, particularly experienced by the adult male claimant. The MS-13, it started approaching him in 2015 seeking small extortion amounts on a regular basis. However, starting in [XXX] 2016 the principal claimant was approached for greater extortion amounts which the principal claimant paid on the [XXX] of every month, and he considered it part of his monthly costs of living.

[6]       However, in [XXX] 2017 the principal claimant was asked by an elder … elderly neighbour to use his position as the [XXX] of a [XXX] company called [XXX](ph) to provide samples of [XXX] that the neighbour was unable to obtain through the El Salvador social assistance program due to office closers during the holiday season.

[7]       Shortly after doing this favour the MS-13 approached the principal claimant and asked for sample [XXX] as well in addition to the extortion amounts. At this time the MS-13 also advised as to the details that they had regarding the principal claimant’s family, where he worked, when and where his kids went to school, etcetera.

[8]       Later on, the minor claimant [XXX] was stopped by gang members as he got off a school bus and was threatened regarding his father following through on extortion amounts and to try and stop avoiding them.

[9]       INTERPRETER: Would you kindly repeat that (inaudible) last part all about the school bus?

[10]     MEMBER: To try and stop avoiding them.

[11]     INTERPRETER: Can you back to where he got on the school bus (inaudible)?

[12]     MEMBER: And was threatened regarding his father following through on extortion and to stop trying to avoid them.

[13]     The claimants also believe that the MS-13 members had moved into a rooming-house across from their home and were keeping an eye on them.

[14]     My determination is that I find the claimants persons in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act.

[15]     With regard to Section 96, I find that the claimants fear criminal entity and I therefore find that their fear of persecution is not based on one of the five Convention grounds. That being so, this case was assessed under Section 97 of the Immigration and Refugee Protection Act.

[16]     With regard to generalized risk, the documentary evidence that El Salvador is one of the most violence countries in the world with one of the highest homicide rates. In particular, gangs are responsible for about 60 percent of the country’s homicides, as noted in NDP Item 7.1(1).

[17]     El Salvador’s National Documentation Package further indicates that random organized violent crime is endemic throughout El Salvador.

[18]     Based on the documentary evidence contained in the NDP and counsel’s country package I find, on a balance of probabilities, that the risk of violence at the hands of gangs in El Salvador is a generalized risk faced by the general population in El Salvador, and that extortion threats are common. However, I find that the claimant in this particular case face an individualized risk.

[19]     I find that even though some of the extortion faced by the claimants in 2015 or 2016 may have been generalized in nature, the more recent threats they experienced in 2017 and 2018 was personalized in nature. I find, on a balance of probabilities, that the claimants face a greater risk to their lives than the risk faced by the generalized population in El Salvador, such that they are subject to the generalized risk exception found in sub-paragraph 97(1)(b)(ii) of the Act.

[20]     With regard to identity, I find, on a balance of probabilities, that the claimants have established their identities by way of certified true copies of their El Salvadorian passports as seized by the Canadian Border Security Agency.

[21]     With regard to credibility, I find that the principal claimant was a credible witness. I find that he was consistent and did not embellish his testimony when there were opportunities for him to have done so. I find that I believe what he said and presented at his hearing.

[22]     I accept the principal claimant’s evidence that before they went to the United States in [XXX] 2017, he was scared of the gangs but did not consider the threats at that time to be significant, as he was paying the extortion amounts and viewed it as a monthly expense.

[23]     Further, the gangs appear to have accepted that monthly amount and had not threatened further at that point.

[24]     I therefore find that the claimants have not experienced such serious threats of a personal nature, that they should have sought protection in the United States…

[25]     INTERPRETER: That they should have?

[26]     MEMBER: That they should have sought protection in the United States. And that I find they did not re-avail themselves of El Salvador’s protection when they returned.

[27]     With regard to State protection, there are numerous documents in the Board’s disclosure packages that describe the ineffectiveness of El Salvador’s police and judiciary. Based among other things, on gang infiltration and corruption.

[28]     The claimants in this case did not approach the police at any point about the threats. While I find this problematic, I’m also of the opinion that even if they had stayed to try to get the benefit of State protection that the protection offered would not have been adequate given the objective country documentation on the issue, and the imminent threats faced by the claimants.

[29]     I therefore find, on a balance of probabilities, that the claimants have rebutted their presumption of State protection available to them in El Salvador and I find, on a balance of probabilities, that State protection would not be available to these particular claimants in the future if they were to return to El Salvador.

[30]     With regard to internal flight alternative, the documentary evidence is clear that gang activity is prevalent throughout El Salvador and that MS-13 has connections throughout the country and that they communicate with each other when new people move into their neighbourhoods.

[31]     That being so and given my determination regarding State protection, I find, on a balance of probabilities, that there’s no viable internal flight alternative available to these particular claimants anywhere in El Salvador.

[32]     To conclude I find, on a balance of probabilities, that the claimants are persons in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act as they would be personally subjected to a risk to their lives or a risk of cruel and unusual treatment should they return to El Salvador today.

[33]     I therefore accept their claims. Good luck.

[34]     COUNSEL: Thank you, Mr. Member.

[35]     MEMBER: And we’re off the record.

———- REASONS CONCLUDED ———-

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.
2 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.
3 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.