Categories
All Countries Jordan

2019 RLLR 98

Citation: 2019 RLLR 98
Tribunal: Refugee Protection Division
Date of Decision: September 19, 2019
Panel: F. Mortazavi
Counsel for the claimant(s): Sherif Ashamalla
Country: Jordan
RPD Number: TB8-06771
ATIP Number: A-2020-01459
ATIP Pages: 000107-000113


REASONS FOR DECISION

[1]       [XXX], the claimant, a male Muslim, is a citizen of Hashemite Kingdom of Jordan (Jornan). He is claiming refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimant’s allegations are detailed in his narrative of his Basis of Claim Form (BOC), signed on March 14, 2018.2

[3]       In summary, his evidence indicates that he had an out-of-wedlock relationship with a Christian woman named [XXX], whom he met her in 2016. In support of [XXX] existence, he submitted two photographs,3 and testified under oath that the woman depicted in the two photographs is [XXX].

[4]       In January 2017, the claimant told his parents that he intended to marry a Christian woman, with whom he had a sexual relationship with. His parents disapproved. The claimant alleged that in early February 2017, he was threatened and humiliated by one of [XXX] male relatives while he was walking on the street and holding hands with [XXX]. She left him, and walked away. He alleged that he has not seen her since, and he was later blocked from her Facebook account.

[5]       He alleged that while he was walking home on February 13, 2017, he was hit by a car. He lost consciousness, and was taken to the hospital by a bystander. He was hospitalized for three days. In support of this allegation, the claimant submitted a copy of the complaint form he had filed with the police, dated February 13, 2017, against an unknown driver.4 He also submitted a copy of a medical report, dated February 16, 2017.5

[6]       The claimant alleged that during the incident he lost his phone and belongings. The claimant speculated and alleged that this incident was orchestrated by [XXX] family, in attempt to kill him. He further states that neither [XXX] nor any of his family members visited him while he was in the hospital.

[7]       The claimant alleged that he has not heard from [XXX] since he was blocked from her Facebook. However, the claimant’s friend, [XXX], in the United States (US), did speak to her once via Facebook Messenger, in order to encourage [XXX] to go to the US with the claimant. Subsequently, [XXX] Facebook account was closed, and [XXX] was blocked. Thus, [XXX] and the claimant have not been able to contact her via social media since April 2017.6

[8]       The claimant alleged that his four brothers and uncles have disowned him officially because of the hateful relationship between the claimant’s tribe and [XXX] tribe.7

[9]       The claimant testified that he fears [XXX] family, that they would try to kill him because he has dishonored them. He explained that he no longer has protection of his own family and tribe, and that the police will not protect him because it is a family honor issue. He fears being a victim of honor killing if he were to return to Jordan.

DETERMINATION

[10]     The panel finds that the claimant is a person in need of protection pursuant to section 97(1) of the IRPA for the following reasons.

ANALYSIS

Identity

[11]     The panel finds that the claimant, on a balance of probabilities, is a citizen of Jordan, and has established his personal identity based on the copy of his original passports.8

Credibility

[12]     Notwithstanding the issue of delay in claiming asylum in Canada, and the credibility assessment of the car incident, given that the culprits were unknown and the claimant merely speculates that [XXX] family had planned it, the panel gives the benefit of the doubt to the claimant’s evidence with respect to having a relationship with [XXX], and accepts that, on a balance of probabilities, the basis of his subjective fear is true.

Objective evidence

[13]     Having considered the totality of the evidence and counsel’s submissions, the panel finds that there is sufficient credible or trustworthy objective evidence before it to support the claimant’s subjective fear.

[14]     The documentary evidence indicates that honor killing persist in Jordan. However, while it refers to women being target of honor killing, it makes no such reference to men. In fact, “[a]ccording to estimates, there are an average of 20-25 so-called honour killings reported every year in Jordan.”9

[15]     According to US Department of State report:

There were no reported instances of forced marriage as an alternative to a potential honor killing during the year, although NGOs noted that many cases of forced marriage occurred shortly after an accusation of rape due to family and societal pressure before any formal trial began. Observers noted that if a woman marries her rapist, according to customary belief, her family members do not need to kill her to “preserve the family’s honor,” a belief that persisted despite the 2017 amendment to the legal code.10

[16]     The review of the documentary evidence indicates that the main victims of honor killings are women, and their family members are also at risk of honor killings. Regarding family members, and disputes between tribes, the claimant submitted a news article, dated May 21, 2018. It notes that, “a group of members of the Shawabkeh tribe, led by a former Royal Guard officer, and seven others, including retired members of the security services, brutally assault[ed] a young Al-Fayez family.”11

[17]     The documentary evidence indicates:

In the past, Article 98 of the Penal Code was applied to reduce penalties for men who perpetrated violent crimes against women, such as murder or assault, after the woman had committed a dishonourable act. Article 98 was amended in 2017 to prevent it from being used to reduce penalties for so-called ‘honour’ crimes against women.12

[18]     A recent Human Rights Watch report indicates that, “[a]ccording to press reports, about 20 women are killed in Jordan each year by male family members in so-called “family honor” crimes.”13

[19]     The panel finds that in the circumstances of this case, on the balance of probabilities, the claimant could be a target of honor killing if he were to return to Jordan.

Protection

[20]     Refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protection of their home state. The onus is on the refugee claimant to approach the state for protection, in situations where state protection might be reasonably forthcoming.14 In the absence of a compelling explanation, a failure to pursue state protection opportunities within the home state will usually be fatal to a refugee claim, at least, where the state is a functioning democracy with a willingness and the apparatus necessary to provide a measure of protection to its citizens.

[21]     In the case at hand, the state is not the agent of persecution. The claimant fears [XXX] tribe. However, the panel needs to determine whether the state would be willing to offer the claimant protection, if he were to seek state protection.

[22]     The panel notes that the US Department of State report indicates that:

… Jordan is a constitutional monarchy … The constitution concentrates executive and legislative authority in the king…  Elections for the Chamber of Deputies occur approximately every four years and last took place in 2016. International observers deemed the elections organized, inclusive, credible, and technically well run.

Civilian authorities maintained effective control over the security forces.15

[23]     The documentary evidence filed establishes that the police rarely investigate honour killings on their own initiative:

… it is clear that there is a strong connection between tribalism and the protection of women’s rights once cases reach court. One focus group member described this relationship, saying “even at court there are tribal dynamics at play, so it’s not as if it’s two separate systems … they are totally intertwined.”

The state law in Jordan reflects what many believe to be tribal principles in how it deals with men who kill their female relatives they suspect of not being chaste. The bias towards the perpetrators of this crime is evident early in the process. [Human Rights Watch] claims that in Jordan the police rarely investigate so-called honour killings and “typically treat the killers as vindicated men.” Or when the police do conduct an investigation, they routinely conduct faulty investigations that fail to produce enough evidence for conviction.

Tribal processes seem to be primarily used today in Jordan for violations against life, limb and honour. The first of these are referred to as ‘blood crimes’ and criminal responses to violations of the first are known as ‘honour crimes’. A mentioned, tribal principles and processes of dispute resolution are used in Jordan not just by those living nomadically but also by many people of all socioeconomic backgrounds with tribal affiliations living in villages or cities like Amman.16

[24]     The claimant must establish, through clear and convincing evidence, that the state would be unwilling or unable to provide adequate protection if he were to return to his home country, Jordan. In view of the objective evidence noted above, in the circumstances of this case, the panel finds the claimant has rebutted the presumption of state protection.

Internal flight alternative

[25]     Jordan is a small tribal country. Moreover, the documentary evidence indicates that attitudes towards honour are the same throughout the country.

[26]     In the circumstances of this case, there is no viable internal flight alternative available to the claimant in Jordan.

CONCLUSION

[27]     The panel finds, [XXX], is a person in need of protection pursuant to section 97(1) of the IRPA, as he faces a particularized risk of harm. On a balance of probabilities, his removal to Jorden may subject him to a risk to life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture.

[28]     The panel therefore accepts his claim.

(signed)           F. Mortazavi

September 19, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC).
3 Exhibit 6, Photographs.
4 Exhibit 4, Personal Disclosure received August 30, 2019, at pp. 4-5.
5 Ibid., at pp. 6-7.
6 Ibid., at p. 10.
7 Ibid., at p. 8.
8 Exhibit 1, Package of Information from the Referring CBSA/CIC, Certified True Copy of Passport.
9 Ibid item 5.10.
10 Exhibit 3, National Documentation Package (NDP) for Jordan (August 30, 2019), item 2.1.
11 Exhibit 5, Country Disclosure, at p. 2.
12 Exhibit 3, NDP for Jordan (August 30, 2019), item 5.6.
13 Ibid., item 5.2.
14 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
15 Exhibit 3, NDP for Jordan (August 30, 2019), item 2.1.
16 Ibid., item 5.10.

Categories
All Countries India

2019 RLLR 51

Citation: 2019 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: Milton Israel
Counsel for the claimant(s): Ronald Yacoub
Country: India
RPD Number: TB7-23722
ATIP Number: A-2020-01274
ATIP Pages: 000074-000079


REASONS FOR DECISION

[1]       [XXX], the principal claimant, and [XXX], his wife and the associate claimant, citizens of India, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The Basis of Claim Form (BOC) of the principal claimant (hereafter the claimant) represented both claimants.2

[3]       The claimant alleges in his narrative that he and his wife were threatened and attacked by members of the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist organization that supports the Bharatiya Janata Party (BJP), the ruling party in India.

[4]       The claimant further alleges that RSS members attempted to kill him on [XXX], 2017, as well as a few times earlier. The reason for these attempts was a statement that the claimant made at his Gurdwara, indicating that people should be able to eat any meat they desired, including beef. This was considered to be an insult to Hindus who considered the cow to be holy.

[5]       The claimant received threats from the RSS and went to the police, but received no help. The threats also made an impact on his health, causing [XXX], [XXX], [XXX], and [XXX]. As a result, he and his wife moved to Amritsar, and stayed with his nephew. However, extremists followed him there, and he received a death threat. He went to the police again, but received no help.

[6]       On [XXX], 2017, the claimant and his wife returned to their home in [XXX]. The next day, members of the RSS attacked his home, and the claimant was beaten. On [XXX], the claimant and his wife went to New Delhi, where he received first aid, and on [XXX], they left India and came to Canada.

[7]       On [XXX], 2017, their house was attacked again. The claimant alleges that they assumed he was there, and would have killed him if he had not left India.

THE ISSUE

[8]       The determinative issue in this claim is credibility.

[9]       The panel questioned the claimant concerning his allegations. He was asked how Hindu nationalists heard about his statement as he made it in a Gurdwara. The claimant explained that there was a nearby Hindu temple, and Hindus often came to the Gurdwara.

[10]     The panel noted that the three affidavits he disclosed concerning the incident in the Gurdwara were word for word exactly the same,3 and the claimant was asked how that was possible if they were prepared independently. The claimant explained they were given in Punjabi, and then translated into English. The panel noted the Punjabi originals were not disclosed, and the claimant explained they were prepared for Canada. The panel is not persuaded that the three affidavits were prepared independently, and finds that the word for word replication reduces their evidentiary weight as to the claimant’s allegations.

[11]     The claimant was questioned as to the alleged attempt of the RSS to kill him on [XXX], 2017. He described being dragged out of his house and beaten. The claimant was asked if there was an attempt to kill him, and he testified that they had no knife or gun. He further testified that his wife screamed, and neighbors came and the perpetrators ran away.

[12]     The panel noted that the claimant indicated in his narrative that there were other attempts to kill him, and the claimant was asked to describe those incidents. The claimant testified as to the threats, and his trouble recalling these incidents. The panel notes that no substantive evidence was provided, either in the claimant’s narrative or in testimony, which concerned such alleged incidents. Subsequently, the claimant testified that between 2014, when the Gurdwara incident occurred, and 2017, when his house was attacked, there were only threats.

[13]     The panel noted that the claimant disclosed four affidavits concerning the alleged attack on [XXX], 2017.4 The panel further noted that the four affidavits are exactly the same. The claimant provided the same explanation as in the case of the affidavits concerning the Gurdwara incident. The panel finds, again, that there is a significant doubt that these affidavits were prepared independently, and gives them reduced evidentiary weight.

[14]     The claimant’s son, [XXX], a resident of Canada, appeared as a witness in the hearing. He testified that he visited India, and talked to his parents’ neighbors and officials in the Gurdwara. They confirmed the claimant’s allegations regarding his speech in the Gurdwara, and the attack on his home. He further testified that he visited his parents’ home, and was attempting to repair some broken windows and a door, when he was attacked by two men. He ran to another house, and subsequently received medication and therapy for an injury to his shoulder.

[15]     The witness also testified that his father, who is 70 years old, was being medicated for his diminishing mental abilities, which resulted from the trauma he experienced in India. The panel notes a medical document was disclosed in this regard.5 Moreover, the witness stated that the claimant dictated his narrative to his daughter-in-law, but his mental state was not normal at the time.

[16]     The panel finds that the claimant testified in a straightforward manner. The panel further finds that it has credibility concerns about the affidavits disclosed by the claimant, and the claimant’s allegations about multiple efforts to kill him without evidentiary support. The panel notes that the claimant changed his testimony in this regard in the hearing.

[17]     The panel further finds that while the affidavits have been found to be of reduced evidentiary weight because of the content duplication, their corroboration of the claimant’s allegations is not totally undermined.

[18]     In regard to the panel’s concern about the credibility of some of the claimant’s testimony, it notes that the evidence provided by the claimant’s son and in medical documentation, provides a credible explanation concerning the claimant’s diminished mental condition.

[19]     The panel finds, on a balance of probabilities, that the claimant has been a credible witness as to his allegations concerning his Gurwara remarks, and the resulting attacks by members of the RSS.

[20]     The panel notes that it indicated at the beginning of the hearing that even if the claimant’s allegations concerning his RSS risk are found to be credible, he has an internal flight alternative (IFA) available to him in Mumbai.

[21]     The panel questioned the claimant as to his possible resettlement in Mumbai if he believed he and his wife were unsafe in Punjab. The claimant responded that Sikhs were a minority community, and the RSS was everywhere in India. The panel noted that Sikhs lived in all parts of India, and that there was no constraint on their doing so. The claimant responded that Mumbai was costly, and the panel noted that, like all major cities, there were less expensive communities on the periphery of the expensive center. The claimant further testified that there was a bias in favor of Maharashtrians, but the panel noted that Mumbai remained a cosmopolitan metropolis. The claimant responded that he had lived his life in a small community, and he did not have many more years to live.

[22]     The panel has considered the two prongs of the IFA test, and acknowledges that both prongs must be satisfied for finding that the claimants have an IFA.6 While the panel is satisfied with the requirement of the first prong, that there is no serious possibility of the claimants being persecuted in the part of the country to which it finds an IFA exits, the requirement of the second prong, that the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there, has not been met.

CONCLUSION

[23]     The panel finds, on a balance of probabilities, and in the context of the evidence concerning the claimant’s age and mental health, that an IFA in India is not available to him. The panel further finds, on a balance of probabilities, that the principal claimant and the associate claimant cannot return to India without the risks pursuant to section 97(1) of the IRPA. Therefore, their claims are accepted.

(signed)           Milton Israel

December 11, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC) – TB7-23722.
3 Exhibit 5, Claimant’s Disclosure, at pp. 23, and 28-29.
4 Exhibit 5, Claimant’s Disclosure, at pp. 24-25, 27, and 30.
5 Ibid., at p. 74.
6 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).