Categories
All Countries Cameroon

2019 RLLR 104

Citation: 2019 RLLR 104
Tribunal: Refugee Protection Division
Date of Decision: November 22, 2019
Panel: Diane Hitayezu-Fall
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Cameroon
RPD Number: TB8-11840
ATIP Number: A-2020-01459
ATIP Pages: 000150-000153


DECISION

[1]       MEMBER: So, I have considered your testimony and the other evidence before me in this case and I’m ready to render my decision orally. So, this is a decision for the claim made by [XXX]. The file number is TB811840. The decision is rendered today, November 22nd, 2019. So, you were claiming to be a citizen of Cameroon and you are claiming refugee protection under Sections 96 and 97 of the Immigration and Refugee Act. So, my-, I have found you to be a refugee for the following reasons.

[2]       The details of your claim can be found in your Basis of Claim Form that is in Exhibit 2 and you allege that you are an Anglophone Cameroonian. You were born and you grew up in the Anglophone region in Kumba. You allege that you are a member of the Southern Cameroons National Counsel, SCNC. You allege that you have been a member since September 2009 and that because of your membership in the SCNC and your political activities, you have been mistreated by the government agents.

[3]       You allege that your life would be at risk if you were to return to Cameroon. And you allege that the-, the government agents who have mistreated you in the past and have been mistreating members of the SCNC will arrest you, detain you, torture you or even kill you. So, as I said, I found you, that you are Convention refugee, as you have established a serious possibility of persecution on account of your political opinion and political activities.

[4]       In terms of identity, I find that your identity is established by your testimony and the supporting documentation you have provided, which include, ele-, p-, Republic of Cameroon passport which is in Exhibit 1, document we received IRCC and your acad-, your academic documents in Exhibit 5. I find that your personal identity and the National, your National identity have been established as a commun-, a citizen of Cameroon. I assessed your credibility and I find-, I found you to be credible, you have been a credible witness and I believe what you have alleged in support of your claim.

[5]       You testified in a straight forward manner and you answered directly the questions. At the end of the hearing, there were no unexplained omissions. And I note, I did not note any contradictions between what your declared in your BOC, Basis of Claim and other forms in your testimony today. I noted, some mistakes on your documents, on the documents you submitted, spelling mistakes in the French portions of your document. I asked you about it and you could not explain how it happened. You only indicated that, it happened. However, I considered your oral testimony that was oral-, overall, candid, spontaneous and detailed. And it was detailed in all aspects of the claim, your passion, your activities as a member of SCNC and your activities in Canada. And I found that, the mistakes on the document would not overweigh your other portions of test-, testimony in the other documents you have provided.

[6]       So, in support of your allegations you have provided a number of documents that support your allegations. For your membership in SCNC, you provided your membership card that you obtained in September 2009 and then attestation of membership from SCNC dated October 30th, 2019. You have provided some letters from members who attest of your membership. Some SCNC leaders provided letter of supports, attesting that you attended meetings and that they knew about your arrest, detentions and your escape. I- it would not the-, in Exhibit 5, page 13 to 17 you provided letters from [XXX] and [XXX] and other people. And with respect to your detention and mistreaten-, mistreaten-, mistreatment in detention, you provided medical note from the hospital that treated you on two occasions after being mistreated in detention. And there are-, those are notes from the, is it [XXX], in Exhibit 5, 6-, pages 16 and 17. You also provided police documents, the bail bonds from 2010 to 2014, you have provide-, provided copies of your, the warrants for your arrest and the convocation to the police.

[7]       I have also the letter from the organization that helped with your release from detention on two occasions, the Human Rights Defence Group that helps SCNC members. After reviewing all this evidence in front of me, I have accepted what you have arranged in your BOC. And I find that you have established a subjective fear based on your political opinion and political activities.

[8]       So, I looked at the objective evidence and I found that the National Documentation Package for Cameroon, May 31st, 2019, contain information that supports your allegations, that as Anglophone and as somebody who is a member of SCNC and has been identified as an anro-, Anglophone who participates in the protest asking for equal rights for Anglophone, you would be persecuted in Cameroon. The objective evidence indicates that there continue to be reports of arrests and disappearances of individuals by security forces, particularly in the Anglophone regions. The National Documentation Package on Cameroon contains many reports on-, on Human Rights that describes the situation and the crisis in those Anglophone regions, item 2.1, 2.2, 2.5. I have other documents, many documents in Items 1-, in Section 1 and Section 4 and those reports, report serious human violation, abuses of civilians by government forces and sometimes Anglophone separatists. And regarding (inaudible) disappearances and people are detained, they are not allowed to contact their families and friends and they are denied access to legal representation and some are detained in an undisclosed location.

[9]       I noted that the Item 2.(inaudible ), the human rights issues highlighted in 2018, in the report for 2018 by the United States Department of States, on Cameroon include the prolonged arbitrary detention of suspected Anglophone separatists by security forces, harsh and life-threatening prison conditions. You testified about, what you endured during the detention and the issue may-, another issue mentioned in this report is that Anglophone Cameroonians are restricted in the rights to freedom of assembly, their freedom to express their political opinion and that the government has arrested, charged and killed in recent years, those who attempted to do so. I have a response to information request that, that tells us that Anglophone regions are located in the North-West, South-West Cameroon, when from. And then, it says that Anglophone are subjected to a policy of ongoing discrimination and they’re all often denied the right to use their language. They are subjected to-, to French legal and education system against their wish. And you have testify-, testified about your experiences in Cameroon, with having to do exams in a-, in French.

[10]     And the, there’s another document in, our response to information request, Item 13.2 and it refers to people living in the diaspora. And they are-, the government accuses them to instigate the war in Cameroon. And they, I know that Canada is involved with the countries name where Cameroonian’s have been sending money, accused of sending money to-, to Cameroon. And this, the documentation in the National Documentation Package says that, anyone is who is vocal will risk-, will be at risk if they go back to Cameroon, they risk to be arrested. Some are arrested at the airport, they-, they are detained and sometimes they would have to bribe, to get out. So, given that you have established by your testimony and the-, the supporting document that you have, come to the attention of the government of Cameroon as a person interested in Anglophone’s cause, you have been detained, interrogated. I find that your-, your fear of persecution is objectively founded. I found that, I find that you, the fear you express is well-founded and you have established that there is a serious possibility of persecution based on an imputed in your-, based on a political opinion.

[11]     I had to verify if state protection would be available to you if you had to go to Cameroon. And I looked at evidence before me and I found that adequate state protection would not be reasonably forthcoming in your particular case. Based on the information on file and given that-, given that the authority in Cameroon, the authorities are your agent of persecution, I find that it is objective-, objectively unreasonable for you to seek protection from the authorities in Cameroon. I find, that I have clear and convincing evidence before me in the objective evidence, as discussed. And I find that there is no adequate state protection available for you in Cameroon. I also, had to verify if you could relocate in Cameroon and I considered whether a viable internal flight alternative exists for you, but on the evidence before me, I find that there is a serious possibility of per-, persecution throughout Cameroon. There-, there are-, there are warrants to arrest you, so it is reasonable to believe that they may be executed anywhere in Cameroon. There is nothing the documentary evidence, that to indicate that Cameroon does not control its territory. I find that there is no internal alternative for you a place in Cameroon where you could express your political opinion without fear of persecution.

[12]     So, in conclusion I find that you are a Convention refugee and I, therefore, accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Eritrea

2019 RLLR 103

Citation: 2019 RLLR 103
Tribunal: Refugee Protection Division
Date of Decision: October 23, 2019
Panel: M. Dookun
Counsel for the Claimant(s): Esther Lexchin
Country: Eritrea
RPD Number: TB8-09739
ATIP Number: A-2020-01459
ATIP Pages: 000145-000149


REASONS FOR DECISION

[1]       [XXX] (the claimant) is a 51-year old male citizen of Eritrea. He is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

ALLEGATIONS

[2]       The specific details of this claim are set out in the claimant’s Basis of Claim (BOC) form2. In short, he fears persecution at the hands of the Eritrean government based on his Islamic religion and his objection to forced military conscription of himself and his children in Eritrea. He also fears repercussions from the Eritrean government for having made a refugee claim against Eritrea in Canada.

DETERMINATION

[3]       The panel has determined that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[4]       The claimant established his personal identity by way of the certified true copy of his Eritrean passport3.

Credibility

[5]       The claimant testified in a straightforward manner. He made no apparent attempts to embellish his testimony. There were no serious inconsistencies or contradictions inherent in his testimony. The panel has no serious reason to doubt that the sworn testimony of this claimant was truthful.

Well-Foundedness of Fear

Refugee Claim in Canada

[6]       The panel finds on a balance of probabilities that there is less than a mere possibility that the Eritrea government would know that the claimant made a refugee claim in Canada if he returned to Eritrea voluntarily due to the fact that he left Eritrea legally. The claimant testified that he enters and exits Eritrea regularly. He stated that the Eritrean government believes that he is a resident of Sudan who visits Eritrea voluntarily. That being so, he has never had problems entering Eritrea in the past. The panel finds that there is less than a mere possibility that the Eritrean authorities would question the claimant upon entry regarding whether or not he made a refugee claim in Canada.

Religion

[7]       The panel finds there is less than a mere possibility that this claimant would face persecution in Eritrea because of his Muslim religion. The claimant testified that there is no difference between the religion he practises and the state-sanctioned Islamic religion in Eritrea. The claimant was asked whether he had any problems practicing his religion while in Eritrea. He responded that he had no problems that related to him specifically. He was then asked what kind of problems he thought he would have if he returned to Eritrea now. He responded that he did not believe that there would be issues because of his specific beliefs. The panel thus finds based on the claimant’s own testimony that he would not face problems in Eritrea based on his religion.

Military Objection

[8]       That being said, the panel does find that the claimant could face problems in Eritrea because of his objection to military service. The documentary evidence4 states that by law all Eritrean citizens between ages 18 to 50 must perform national service. The claimant, at 51 years old, is past that age range. In addition, he has already performed and completed his mandatory military service.

[9]       However, in 2012 the Eritrean government created the “People’s Army”. The People’s Army is composed of citizens released from the national service as part of their open-ended national service. Eritreans up to 70 years of age can be conscripted into the People’s Army. Those who ignore the People’s Army conscription notices may face imprisonment.5

[10]     The claimant stated that he is opposed to carrying arms and opposed to serving the Eritrean regime in any manner. His refusal to cooperate may be seen as having a political opinion contrary to the Eritrean Government. This would place the claimant at risk should he return to Eritrea.

State Protection and Internal Flight Alternative

[11]     The panel finds that as the state authorities are the agents of persecution, there would be no state protection available to this claimant anywhere in Eritrea should he return. For the same reason, the panel also finds that there is no viable internal flight alternative available to this particular claimant anywhere in Eritrea.

CONCLUSION

[12]     To conclude, the panel finds on a balance of probabilities, based on his objection to military service, that the claimant has a well-founded fear of persecution in Eritrea based on his political opinion. As such the panel finds that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act. The Refugee Protection Division accepts this claim.

(signed)           M. Dookun

October 23, 2019

1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27 as amended.
2 Exhibit 2.
3 Exhibit 1 and Exhibit 7.
4 Exhibit 3, item 2.1.
5 Exhibit 5, page 53.

Categories
All Countries Somalia

2019 RLLR 100

Citation: 2019 RLLR 100
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2019
Panel: C. Ruthven
Counsel for the Claimant(s): Rodney L. Woolf
Country: Somalia
RPD Number: TB8-08276
ATIP Number: A-2020-01459
ATIP Pages: 000119-000129


REASONS FOR DECISION

[1]       These reasons and decision are in regards to the claim for protection made by [XXX], who is claiming protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.1

ALLEGATIONS

[2]       The claimant’s full allegations are set out in his Basis of Claim Form and related narrative.2 The claimant is a member of the Sheikhal clan in Somalia, and he practices the Sunni Muslim faith, and follows the Sufi rites.

[3]       The claimant grew up in Mogadishu, where he resided until July 2007, when his family relocated to Jilib, Middle Juba. In Mogadishu, members of Al Shabaab (alternate name spellings include Al-Shabaab,3 al-Shabaab4, and Harakat Al-Shabaab Al-Mujaahidiin5) had forced the claimant’s parents to close their small Sufi shop. Their members also enforced Al Shabaab’s fundamentalist interpretations of Islam.

[4]       In Jilib, the claimant and his father joined the claimant’s paternal grandfather in raising forty cows and fifty goats. Al Shabaab took control of Jilib in 2008. Their members demanded quarterly taxation of the family’s herd animals. The claimant’s paternal grandfather died in 2015, but the claimant and his father continued to raise the animals for their meat and their milk production.

[5]       On January 21, 2018, four members of Al Shabaab approached the claimant’s parents, in an attempt to recruit the claimant. The claimant’s father was killed by one of the armed men, and the claimant’s mother was threatened with death, if the claimant did not agree to be recruited the following day.

[6]       The claimant and his mother immediately fled to a residence thirty minutes outside Jilib, and took shelter with [XXX], a friend of the claimant’s late father. [XXX] arranged for the burial of the claimant’s father, as well as the sale of the family’s livestock. The claimant and his mother relocated to Mogadishu, where the claimant arranged for a smuggler to take him to North America.

[7]       The smugger provided to the claimant a Finland passport, and she accompanied him to Canada on [XXX], 2018. The claimant made his claim for protection in April 2018.

DETERMINATION

[8]       The panel finds that the claimant is a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, based on his imputed political opinion, namely his refusal to be recruited into the Al Shabaab armed group.

ANALYSIS

Identity

[9]       The claimant declared that his name was [XXX] and that his date of birth was [XXX], 1997, within his Basis of Claim Form responses, and within his responses to Generic Application Form for Canada, Schedule 12, and Schedule A.6 According to his Basis of Claim Form narrative and his responses to Generic Application Form for Canada, he was born in Mogadishu.

Testimony of the Witness

[10]     The claimant invited a witness to testify in support of his identity and his nationality. [XXX] testified that he knew the claimant, as the witness was a former Jilib shopkeeper. The witness further testified that they met in August 2007, and that the claimant visited his Jilib shop three or four times a month, until October 2015 (when the witness’ father was killed).

[11]     The panel finds that the witness testimony supported the narrative and the testimony of the claimant, in regards to his personal identity, as well as in regards to the claimant’s Jilib residence, between 2007 and October 2015.

Claimant’s Sheikhal Clan Identity

[12]     The witness testified that both he and the claimant were members of the Sheikhal Lobogi clan.

[13]     The claimant presented a November 10, 2018 notarized letter from maternal Uncle [XXX], as well as a November 12, 2018 notarized affidavit from his mother.7 Both [XXX] and [XXX] confirmed that the claimant was from the Sheikhal clan, and that he practiced the Sufi rites of Sunni Islam.

[14]     A deponent’s identity card or passport is normally required to sign an affidavit in Kenya.8 Regarding the November 12, 2018 notarized affidavit signed by [XXX], the panel notes that a verbal acknowledgment from [XXX], also without presented identification,9 was used by the notary public to verify the identity of [XXX]. No further evidence was adduced regarding the relationship between [XXX] and [XXX].

[15]     The panel assigned the testimony more probative value than the notarized letters, as neither the notarized letter (Somalia) nor the notarized affidavit (Kenya) was accompanied by the respective declarant’s identification, for verification purposes.

[16]     The panel acknowledges that the Sheikhal clan has alternate names in Somalia, including Sheikal, Shekhal Lobogi, Shekhal Gendershe, in addition to the alternate name of Shekhash, used in Ethiopia.10 The Sheikhal are the common name for lineages with an inherited religious status. Because of their religious status they usually have privileged access to all parts of Somalia.11

[17]     Both Ashraf and Sheikhal peoples have achieved political influence and success in education and commerce with Arab countries, yet they can still face discrimination and human rights abuses in Somalia, on account of their non-clan origins and lack of an armed militia.12

Midaynta Community Services

[18]     The presented November 21, 2018 letter signed by an administrator at Midaynta Community Services13 put forth the several indicators that the claimant was a member of the Sheikhal clan, and that he was a former resident of Somalia. An interview was completed with the claimant on November 21, 2018, in the standard Somali language. The claimant displayed accurate geographic knowledge and he was able to fluently speak in a dialect consistent with a resident of Somalia.

[19]     Although these types of interviews can never conclusively determine citizenship, the panel assigned the assessment probative value, in conjunction with the other oral and written evidence which was adduced, regarding the claimant’s identity.

[20]     Based on the claimant’s testimony and the totality of the written submissions,14 which were consistent with the objective evidence, the panel is satisfied that the claimant established that, on a balance of probabilities, he belongs to the Sheikhal clan.

Documents Confirming Identity and Citizenship in Somalia

[21]     The claimant testified that he has never been properly issued a passport in his lifetime, nor was he issued a driver’s licence before his arrival in Canada. The claimant further testified that he has never been issued a voter’s card or a national identification card (by any country).

[22]     The Government of Somalia ceased to exist in December 1990, and the country underwent a destructive and brutal civil war, in the course of which most records were destroyed. Those few records not destroyed are in the hands of private individuals, or are otherwise not retrievable. There are no circumstances under which a person born in Somalia can reasonably be expected to recover original documents held by the former government of Somalia. As such, most Somalis lack birth certificates.15

[23]     There is no official birth registration system in Somalia. Only hospitals are registering births.16 The claimant testified that he was born at a private residence in Mogadishu.

[24]     The panel finds that the documentary evidence from the National Documentation Package of Somalia indicates that the issuance and retention of official documents has been very challenging for all of the years that the claimant declared that he has been alive. As such, the panel finds the claimant’s testimony about a lack of documents issued to him by officials in Somalia to be reasonable.

Residential History, Academics, and Work History

[25]     The claimant indicated the he received three years of education within his response to Education/Occupation Detail Question 2 of the Generic Application Form For Canada.17 The claimant left the response to Question 7 of Schedule A blank, where it asked to enumerate any completed years of education.18

[26]     In addition to the above responses, the claimant indicated in his Basis of Claim Form narrative that he had no formal education, but that his father taught him how to read and write. He attended a dugsi for education in the Sufi rites of Sunni Islam.19

[27]     When the panel put the difference between the Schedule A response and the Generic Application Form For Canada response to the claimant at the hearing, he testified that the three years he was referencing in the Generic Application Form For Canada were the years that his father taught him, namely from 2003 to 2006. These were the same three years a dugsi teacher came to his home to teach him about Sufi rites.

[28]     The claimant testified that he was never issued a results certificate by his dugsi teacher, and that he never sat for an examination in Somalia. As such, no educational documents from Somalia were issued to him.

[29]     The panel finds the claimant’s explanation regarding the differences between his Schedule A response and his Generic Application Form For Canada response to be reasonable, and the panel finds the claimant’s testimony about his lack of educational documents to be reasonable, under the circumstances.

[30]     The claimant was self-employed as a herder on his family’s Jilib farm from February 2015 until January 2018, and he resided in Jilib during that same timeframe.20

[31]     The panel finds the claimant’s testimony regarding the regions where he lived in his lifetime were consistent with the presented written evidence. The panel also finds the claimant’s testimony regarding how his problems in Somalia developed to fluid and coherent. The panel therefore accepts this testimony as being credible.

Global Identity Assessment

[32]     Having assessed all of the evidence presented, the panel finds the claimant’s explanations to be reasonable under the circumstances, regarding the reasons why he was unable to produce sufficient credible documentation to corroborate his personal identity, in view of the circumstances which were present in Somalia since his declared birth.

[33]     The panel finds that, on a balance of probabilities, the claimant is who he claims to be, with regard to his name, his family situation, his place of birth, his nationality, and his Sheikhal clan membership.

[34]     Based on the above considerations, including the presented documents, as well as the claimant’s testimony, and the testimony of the witness, the panel finds that the claimant has established his identity as a national of Somalia, based on a balance of probabilities.

Credibility

[35]     The panel finds that the claimant testified at the hearing in a straightforward and consistent manner, without the use of embellishments, contradictions, or omissions from the details which were presented when he made his claim for protection. As such, the panel finds the claimant to be credible.

[36]     The panel finds that the country condition evidence supports the claimant’s testimony, the testimony of the witness, and the Basis of Claim Form narrative statements,21 regarding the underlying reasons for the claimant’s departure from Somalia on [XXX], 2018.22

[37]     Based on his testimony and the corroborating evidence presented,23 the panel finds that the claimant has a subjective fear of returning to Somalia.

Objective Basis of the Claim

[38]     The overall objective evidence supports the claim for Convention refugee protection for the claimant based on his imputed political opinion. The panel finds that the presented evidence from the claimant, including his narrative statements,24 his testimony, the testimony of the witness, and the presented corroborating documents,25 is consistent with the objective evidence from the National Documentation Package for Somalia.26

Al Shabaab

[39]     The claimant testified that he fears a return to Somalia because of the threat of forced recruitment at the hands of the Al Shabaab armed group. Members of Al Shabaab attempted to recruit the claimant on January 21, 2018. His father was fatally shot by the same men who attempted to recruit the claimant.

[40]     Al Shabaab aims to discredit and destabilize the Federal Government of Somalia and target any countries or entities that support Somalia’s fight against Al Shabaab.27 The group’s ideology is typically described as a brand of Salafism and Wahhabism that supports talifir, the excommunication of apostates or unbelievers.28

[41]     Over the past seven years, Al Shabaab’ s military capacity has been considerably reduced due to the efforts of the African Union Mission in Somalia and Somali government forces, as well as internal division within Al Shabaab. Despite this, the group still controls large sections of rural areas, where it appears to have regrouped, as well as supply routes between towns. Al Shabaab appear to be more capable of launching larger, more complex targeted attacks.29

[42]     Al Shabaab are estimated to consist of between five and nine thousand armed fighters, who are able to move across regions to engage in combat.30 Despite extensive security measures being implemented across Mogadishu, last year’s Independence Day attacks by Al Shabaab demonstrated continued operational capability for the group.31

[43]     Al Shabaab has an extensive network of sympathisers, informants, spies, and other collaborators throughout Somalia. The group is considered to be present everywhere in south and central Somalia, and they are assumed to have infiltrated Somali government institutions, the police force, and Somali National Army, according to a United Nations source. Al Shabaab also executed civilians suspected of having collaborated with its enemies.32

[44]     As a result of the referenced country condition documentation from the National Documentation Package, the panel finds that the claimant has established an objective basis for his claim, and that his fears are well-founded.

State Protection

[45]     Continuing problems of corruption, mismanagement, and financial constraints have compromised the effectiveness of the Somali National Army, according to the United Nations Monitoring Group on Somalia and Eritrea. The clan alliances of certain army and police units threaten their impartiality in dealing with local clans. Irregular pay of the police and army staff in Somalia has had a negative impact on the security situation, leading to desertion and some members of security forces joining Al Shabaab. There are also indications of infiltration of the security forces by Al Shabaab.33

[46]     In light of the referenced country condition evidence, the panel finds that it would be objectively unreasonable for the claimant in his particular set of circumstances to seek the protection of the authorities in Somalia.

[47]     Based on his personal profile and Sheikhal clan membership profile, the panel finds that the claimant has rebutted the presumption of state protection with clear and convincing evidence of the state’s inability to protect him, in his particular set of circumstances. The panel finds that on a balance of probabilities, adequate state protection would not be available to the claimant, should he return to Somalia, based on his membership in the Sheikhal clan.

Internal Flight Alternatives

[48]     The panel finds that it would be unreasonable to expect the claimant to seek refuge in another part of Somalia, based on the country condition evidence related to the clan structure, and lack of available protection in Somalia.

[49]     With regards to possible internal flight alternatives for the claimant in Somalia, given that the Somali National Army and the police authorities are ineffective throughout Somalia, and based on the risks of harm to the claimant from the death threats made against him by members of Al Shabaab, the panel finds that there is a serious possibility of persecution throughout Somalia for the claimant, and therefore a viable internal flight alternative does not exist for him.

CONCLUSION

[50]     The panel finds that there is a serious possibility that the claimant faces persecution in Somalia, pursuant to section 96 of the Immigration and Refugee Protection Act. The panel concludes that the claimant is a Convention refugee based on his imputed political opinion, namely his refusal to be recruited into the Al Shabaab armed group.

[51]     The panel therefore accepts the claim.

(signed)           C. Ruthven

July 23, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2.
3 Exhibit 3, National Documentation Package (NDP) for Somalia (30 April 2019), item 1.4, item 1.7, item 1.8, item
1.10, item 1.11, item 1.12, item 1.13, item 1.14, item 1.16, item 1.19, and item 1.21, inter alia.
4 Exhibit 3, NDP for Somalia (30 April 2019), item 1.5, item 1.7, item 1.9, item 1.12, item 1.13, item 1.16, item 1.19, item 1.20, item 1.21, and item 2.1, inter alia.
5 Exhibit 3, NDP for Somalia (30 April 2019), item 1.7, item 1.8, and item 7.11.
6 Exhibit 1 and Exhibit 2.
7 Exhibit 5.
8 Exhibit 3, NDP for Somalia (30 April 2019), item 9.2, and Exhibit 6, NDP for Kenya (29 March 2019), item 9.2.
9 Exhibit 5.
10 Exhibit 3, NDP for Somalia (30 April 2019), item 13.1 and item 13.5.
11 Exhibit 3, NDP for Somalia (30 April 2019), item 1.7 and item 7.11.
12 Exhibit 3, NDP for Somalia (30 April 2019), item 13.1.
13 Exhibit 5.
14 Exhibit 5.
15 Exhibit 3, NDP for Somalia (30 April 2019), item 1.7.
16 Exhibit 3, NDP for Somalia (30 April 2019), item 3.8.
17 Exhibit 1.
18 Exhibit 1.
19 Exhibit 2.
20 Exhibit 1.
21 Exhibit 2.
22 Exhibit 1 and Exhibit 2.
23 Exhibit 4 and Exhibit 5.
24 Exhibit 2.
25 Exhibit 4 and Exhibit 5.
26 Exhibit 3, NDP for Somalia (30 April 2019).
27 Exhibit 3, NDP for Somalia (30 April 2019), item 1.5.
28 Exhibit 3, NDP for Somalia (30 April 2019), item 1.7.
29 Exhibit 3, NDP for Somalia (30 April 2019), item 1.19.
30 Exhibit 3, NDP for Somalia (30 April 2019), item 1.7.
31 Exhibit 3, NDP for Somalia (30 April 2019), item 1.4.
32 Exhibit 3, NDP for Somalia (30 April 2019), item 1.7.
33 Exhibit 3, NDP for Somalia (30 April 2019), item 1.8.

Categories
All Countries Ethiopia

2019 RLLR 97

Citation: 2019 RLLR 97
Tribunal: Refugee Protection Division
Date of Decision: December 4, 2019
Panel: S. Seevaratnam
Counsel for the claimant(s): Paul VanderVennen
Country: Ethiopia
RPD Number: TB8-04005
ATIP Number: A-2020-01459
ATIP Pages: 000096-000106


REASONS FOR DECISION

[1]       The claimant, [XXX], claims to be a citizen of Ethiopia and he is claiming protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimant alleges that he fears returning to Ethiopia because of his perceived political opinion in opposition of the Ethiopian regime, due to his ethnicity as a member of the Oromo tribe.

[3]       The claimant testified that his father is a prominent advocate for the equality and freedom of the Oromo people.2 He is an active member and participant in the Oromo Federalist Congress (OFC).3

[4]       On October 8, 2017, the claimant participated in the Irecha Festival at Gefersa dam.4 The claimant testified that he and his friends enjoyed the celebrations until some young people turned the event into an anti-government protest. This resulted in an intervention by the anti-riot members of the federal police. The claimant and his friends quickly dispersed.5

[5]       The claimant testified that on October 9, 2017, around 7:00 a.m. he was awoken by his father who indicated that the police officers were waiting for him outside their family home. The claimant stated that his father advised him to be co-operative since they could become aggressive. The claimant explained that he was handcuffed and taken to Kolfe Keranyo sub-city police station where he was interrogated and accused of participating in the Oromo unrest.6 The claimant denied participating in the public protest as a consequence he was severely beaten with a rubber hose and threatened to confess.7

[6]       The claimant testified that he was detained for five days and finally released on bail that was posted by his mother on [XXX], 2017.  He was warned not to leave Addis Ababa and not to participate in any public gathering or meetings.8 He was told not to even attend church.9

[7]       The claimant believes that there is no protection for the Oromo people in Ethiopia since political opposition is not tolerated. He fears re-arrest and torture since the security forces suspect him to be a political opponent of the government of Ethiopia. Thus, the claimant fled to Canada in search of safety.

[8]       During his absence from Ethiopia, the claimant has been informed by his father that the police have attended at their family home, in search of the claimant.10

DETERMINATION

[9]       The panel finds the claimant to be a Convention refugee. The panel’s reasons are as follows.

IDENTITY

[10]     The claimant submitted a copy of his passport issued by the Federal Democratic Republic of Ethiopia, which was certified to be a true copy by an Immigration Officer on January 26, 2018.11

[11]     The claimant also provided a copy of his birth certificate,12 his Kebele identity which identifies his ethnicity as Oromo,13 his father’s membership card14 and membership dues paid with Oromo Federalist Congress (OFC).15 The panel was provided with the original identity documents for examination in advance of the hearing, which was helpful in assessing identity.

[12]     The panel is satisfied that the claimant is a citizen of Ethiopia and that he is a member of the Oromo community.

CREDIBILITY

[13]     The panel is guided by the leading jurisprudence on the issue of credibility. Maldonado stands for the principle that when a claimant “swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.”16

[14]     The claimant responded to all questions clearly and directly. He was straightforward. His sworn viva voce evidence was consistent with his Basis of Claim Form (BOC),17 the police statement,18 the bail receipt,19 and witness letters,20 as well as the documentary evidence.21

[15]     The panel was provided with the original for each of the items in the claimant’s documents,22 in advance of the hearing.

[16]     The panel finds the claimant to be a credible and trustworthy witness. Accordingly, he has established his subjective fear of persecution.

WELL-FOUNDED FEAR OF PERSECUTION

[17]     The claimant participated in a celebration at Gefersa dam, which was turned into a public protest by a few young people. This resulted in the claimant being falsely accused of participating in activities against the government. Consequently, the claimant was arrested, interrogated, detained, and tortured by the security forces in Ethiopia.

[18]     The police report dated October 13, 2017, accuses the claimant of “causing public unrest on the Gefersa Irrecha festival.”23 The police report corroborates the claimant’s arrest and detention. Furthermore, the bail money receipt issued by the Kolfe Keranyo police department confirms the claimant’s release upon payment of bail.24

[19]     Current and reliable media reports submitted by counsel for the claimant indicates that “67 people were killed in Ethiopia’s Oromia sate this week as protests against Prime Minister Abiy Ahmed morphed into ethnic clashes.”25 The report further states that according to Amnesty International, “since Abiy took office, there have been several waves of mass arrests of people in Oromiya perceived to be opposed to the government. Detainees were not charged or taken to court…”26 This is similar to the predicament faced by the claimant when he was in Ethiopia.

[20]     Furthermore, a press statement by the African Commission on Human and Peoples’ Rights (ACHPR) on the human rights situation in the Federal Democratic Republic of Ethiopia finds that:27

The Commission is gravely concerned by the escalation of protests which have been taking place in the Oromia region since the 23rd October 2019. Those protests have spiraled into clashes amongst civilians and between civilians and security forces, and they are increasingly being fanned by ethnic and religious under­currents, with groups being mobilized to attack minority ethnic communities and churches.

[21]     In addition, the ACHPR reminds the Ethiopian government that:28

… [I]t is obligated to take measures for restoring peace and reassuring the country. It should ensure that its security forces take appropriate measures to protect civilians, and that they do not use indiscriminate force in this regard. It should investigate arising human rights violations, prosecute perpetrators and provide effective remedies to victims.

[22]     The panel has carefully reviewed reputable and reliable sources in assessing the objective basis of this claim. According to the Bertelsmann Stiftung’s Transformation Index (BTI) 2018 Country Report for Ethiopia:29

According to the constitution, individuals, and groups who want to protest only need to inform the government, not seek permission. The government often declines permits for protest that are not pro-government. Whenever protests go ahead without permits, the government uses violent means and coercive tactics to crack down on protestors. During the Oromo and Amhara protests, security forces allegedly killed well over 1,000 people, with the government admitting the death of over 500 people.

The government has increasingly curtailed the freedom of expression and organization of politicians, journalists, NGOs [non-governmental organizations] and human rights organization, thus making Ethiopia a de facto dictatorship.

[23]     According to a reputable report by Freedom House titled “Freedom of the Press 2017: Ethiopia Profile”:30

Ethiopia’s media are dominated by state-owned broadcasters and government­ oriented newspapers. Many private newspapers, which generally have low circulation, report that officials attempt to control content through article placement requests and telephone calls to editors about stories that are critical of the government. Reporters who cover controversial topics risk being arrested or dismissed from their jobs.

Censorship and self-censorship are routinely practiced. Government control of the country’s primary printing press allows for prepublication censorship of newspapers. The risk of job loss, harassment, prosecution, and arbitrary arrest encourage journalists to self-censor.

[24]     Another Freedom House report for 2018 Ethiopian country conditions indicates that “[t]he Ethiopian government maintains, and exercises, the ability to censor critical or opposition websites.”31 The report further states that that “opposition members in Ethiopia and the diaspora have accused the government of tapping their phones or monitoring their electronic communications.”32

[25]     The United States Department of State’s (DOS) “Ethiopia 2018 Human Rights Report” indicates the following:33

Human rights issues included reports of unlawful or arbitrary killings by security forces and between citizens; forced disappearances by some government forces; torture; harsh and life-threatening prison conditions; arbitrary arrest and detention by security forces; political prisoners; interference with privacy; censorship and site blocking; substantial interference with the rights of peaceful assembly and freedom of association, such as overly restrictive nongovernmental organization laws; and significant restrictions on freedom of movement …

[26]     The DOS report further states that:34

There were numerous reports that the government and its representatives committed arbitrary and unlawful killings. Security forces used excessive force against civilians.

A July 31 report from the independent nongovernmental organization (NGO) Human Rights Council (HRCO) that documented field investigations in 26 districts across seven zones in the Oromia and Somali Regions found that federal and regional security forces, as well as mobs of local youth, killed 733 citizens between January 2017 and January 2018.

[27]     According to a Freedom House report, “Ethiopia is an authoritarian state ruled by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), which has been in power since 1991 and currently holds every seat in Parliament.”35 The report further states that, “[o]pponents of the EPDRF find it nearly impossible to operate inside Ethiopia. Authorities frequently invoke antiterrorism legislation against dissenters.”36

[28]     Moreover, this report indicates the following:37

Intense government pressure opposition parties from winning political representation through elections. There are no opposition members in the national parliament, nor in regional parliaments… Opposition party members were intimidated, detained, beaten, and arrested ahead of the polls.

The authoritarian one-party system in Ethiopia largely excludes the public from any genuine and autonomous political participation.

[29]     In its report titled “Ethiopia: Political situation and treatment of opposition,” the Danish Immigration Service states that:38

…[M]embers of the diaspora community were, ‘without doubt’ monitored closely by the government, wherever they might reside. This is, according to the interlocutor, no secret…

The editor noted that if Ethiopians participate in demonstrations against the Ethiopian regime in a foreign country, be it in Europe or in the USA, would be video-taped to document their activity. This would also be the case if members of the diaspora had gotten foreign nationality. Thus they would fear that they were to return to Ethiopia then something might happen to them upon return. As examples of what might occur, Mr. Giorgis mentioned that they could run the risk of being detained in the airport or jailed …

[30]     According to an EU representative, under the current regime “10,000 of political prisoners had been released, others were still arrested by the police on political grounds.”39

[31]     In September 2018, the police commissioner of Addis Ababa indicated that nearly “3,000 youths were arrested in the capital Addis Ababa over the weekend, and that 174 would be charged and 1,200 others would be detained at the Tolay Military Camp for a ‘rehabilitation education.”‘40 In response, Amnesty International stated that “[w]hile the Ethiopian authorities have in recent months made a commendable attempt to empty the country’s prisons of arbitrary detainees, they must not fill them up by arbitrarily arresting and detaining more people without charge.”41

[32]     Based on this country documentary evidence and the credible allegations, the panel finds that the claimant has a well-founded fear of persecution in Ethiopia, by reason of the claimant’s ethnicity as Oromo and his perceived political opinion.

STATE PROTECTION

[33]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.42 To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.43

[34]     According to the 2018 Political Transformation Index Country Report for Ethiopia, “[t]he Ethiopian judiciary lacks both a structural and functional independence.”44

[35]     The DOS report states that “[c]orruption, especially the solicitation of bribes, including police and judicial corruption, remained a problem.”45 The report further finds that the “law provides criminal penalties for conviction of corruption. The government did not implement effectively or comprehensively.”46 Moreover, the DOS report indicates that human rights issues have diminished, although “[t]he government at times did not take steps to prosecute officials who committed human rights abuses, resulting in impunity for violators.”47

[36]     The 2019 Human Rights Watch report for Ethiopia indicates that:48

Government officials often dismissed allegations of torture, contrary to credible evidence…

The government did not take any steps to carry out investigations into the killings [of] over 1,000 protesters by security forces during wide spread protests in 2015 and 2016 in Oromia and other regions…

[37]     The claimant was arrested, detained and tortured by the Ethiopian security forces in Addis Ababa on [XXX], 2017.49 The claimant fears that he would be arrested, detained, and mistreated upon his return to Ethiopia. Given his previous arrest, the claimant would be perceived to be an opponent of the state, if he were to return to Ethiopia today.

[38]     The National Documentation Package,50 and the documents submitted by the claimant51 make clear that the state is the agent of persecution and, in these particular circumstances, is clear and convincing evidence that the state is unable or unwilling to protect the claimant.

[39]     Accordingly, the panel finds that the claimant has met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[40]     The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”52 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, 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 claim, for him to seek refuge there.53

[41]     The claimant bears the burden of proof to demonstrate that he would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life, or a risk of cruel and unusual treatment or punishment in all of Ethiopia.

[42]     It is evident that the Ethiopian security forces operate with impunity throughout the country. The documentary evidence corroborates the claimant’s testimony that there is no state protection available to him, since the state security forces are his agent of persecution. As such, there is no safety for the claimant anywhere within Ethiopia.

CONCLUSION

[43]     For the above-mentioned reasons, the panel finds [XXX] to be a Convention refugee. The claimant has established that there is a reasonable chance of persecution, if he were to return to his country of nationality, Ethiopia, today.

(signed)           S. Seevaratnam

December 4, 2019

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC), response to q.2(a), Narrative, line 3, received February 16, 2018.
3 Exhibit 6, Claimant’s Documents, pp.9-13, received November 6, 2019.
4 Exhibit 2, BOC, Narrative, line 3, received February 16, 2018.
5 Ibid., line 3-13.
6 Ibid., lines 15-22.
7 Ibid., lines 28-30.
8 Ibid., lines 32-35.
9 Ibid., line 35.
10 Exhibit 6, Claimant’s Documents, p.l, lines 43-44, received November 6, 2019.
11 Exhibit 1, Package of information from the referring CBSA/CIC, Certified True Copy of Passport, received February 16, 2018.
12 Exhibit 6, Claimant’s Documents, p.2, received November 6, 2019.
13 Ibid., pp.3-4.
14 Ibid., p.9.
15 Ibid., pp.10-13.
16 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34. (F.C.A.), at para 5.
17 Exhibit 2, BOC, received February 16, 2018.
18 Exhibit 6, Claimant’s Documents, pp.5-6, received November 6, 2019.
19 Ibid., pp.7-8.
20 Ibid., pp.15-25.
21 Exhibit 3, National Documentation Package (NDP) for Ethiopia (March 29, 2019); Exhibit 7, Country Documents received November 6, 2019.
22 Exhibit 6, Claimant’s Disclosure, received November 6, 2019.
23 Ibid., pp.5-6.
24 Ibid., pp.7-8.
25 Exhibit 7, Country Documents, p.12, received November 6, 2019.
26 Ibid., p.13.
27 Ibid., p.15.
28 Ibid., p.16.
29 Exhibit 3, NDP for Ethiopia (March 29, 2019), item 4.9, s.2.
30 Ibid., item 11.1, Political Environment.
31 Ibid, item 2.4, s.D1.
32 Ibid., s.D4.
33 Ibid., item 2.1, Executive Summary.
34 Ibid., s.1(a).
35 Ibid., item 2.4, Overview.
36 Ibid., s.B1.
37 Ibid., s.B2 & B3.
38 Ibid, item 4.4, paras 140-141.
39 Ibid., s.4.1.
40 Ibid., item 2.7.
41 Ibid.
42 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
43 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38.
44 Exhibit 3, NDP for Ethiopia (March 29, 2019), item 4.9, s.3.
45 Ibid., item 2.1, s.4 – Corruption.
46 Ibid., s.4.
47 Ibid., Executive Summary.
48 Ibid., item 2.3, Impunity, Torture, and Arbitrary Detention.
49 Exhibit 6, Claimant’s Documents, pp.5-6, received November 6, 2019.
50 Exhibit 3, NDP for Ethiopia (March 29, 2019).
51 Exhibit 7, Country Documents, received November 6, 2019.
52 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] I F.C. 706 (C.A.), at para 9.
53 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

Categories
All Countries Sudan

2019 RLLR 96

Citation: 2019 RLLR 96
Tribunal: Refugee Protection Division
Date of Decision: September 10, 2019
Panel: S. Charow
Counsel for the claimant(s): Aishah Nofal
Country: Sudan
RPD Number: TB8-03866
Associated RPD Numbers: TB8-03910, TB8-03947, TB8-03948
ATIP Number: A-2020-01459
ATIP Pages: 000090-000095


DECISION

[1]       MEMBER: This is the decision for [XXX] File TB8-03866 the associated adult claimant [XXX] File TB8-03910 and the associated minor claimants [XXX] File TB8-03947 and [XXX] File number TB8-03948.

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

[3]       You’re claiming to be citizens of Sudan and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       The principal claimant has been appointed as the designated representative for the minor claimants, his children. I find that you are Convention refugees for the following reasons;

[5]       The allegations of your claims can be found in your basis of claims forms at exhibits 2 through 5 and the subsequent amendments at Exhibits 8 and 13.

[6]       In short you allege persecution from Sudan’s national intelligence and security service or NASS based on essentially two things. First you allege that you were arrested with a colleague for printing pro (inaudible) materials and that you were also the last one to see that colleague alive.

[7]       Secondly you allege that you’ve been politically active online after leaving Sudan and the NASS has been monitoring these posts. You allege receiving threats including threats of being met at the airport if you return to Sudan because of this online posting. You fear future physical harm or death for yourself or your family should you return to Sudan.

[8]       I note that there were allegations made about the risk of female genital mutilation for the female minor claimant. I will not consider that as it is not determinative because your political opinions and your family’s membership in a particular social group due to your political opinions are the determinative issue in this matter. You allege there’s no state protection for you nor any internal flight alternative.

[9]       Based on the Sudanese passports in exhibit 1 and your overall credible testimony I do find that identity and country of reference have been established on a balance of probabilities.

[10]     I further find that on the balance of probabilities you have established that you and your family will be at risk of persecution because of your political opinion.

[11]     I did note some issues with your testimony; specifically I noted a basis of claim or a basis of claim amendment, omission of someone assisting you in getting your passport when you first left Sudan.

[12]     I further note that there was very little mention of any social media activity at all in your basis of claim form or the subsequent amendment but very specifically you had allege that you received threats over Face book because of the way you were posting about Sudanese political issues, there was no mention at all of any threats in your basis of claim form or the subsequent amendments.

[13]     I did put these issues to you over the course of the hearing; although you’ve provided some explanation I was not satisfied that your explanations adequately explain these omissions. That does negatively impact your credibility.

[14]     However I do balance those issues with the other parts of your testimony which I did find to be credible. This includes detailed, spontaneous evidence about your arrest. I note that on this line testimony, your testimony was consistent with your basis of claim form and you were able to give details when asked to do so that went beyond your basis of claim description of these events.

[15]     I did find this to be very persuasive. I also note that in support of your claim you provided additional documents to substantiate your allegations. I note pictures of the claimant’s attending protests here in Canada, pictures of attending an event which was essentially about a book that had been authored about corruption and other issues with the NISS, a letter from your brother explaining that you had discussed this event and you had sent him a photo of you in that author and that subsequently your brother had been arrested and questioned about this activity.

[16]     I further see the What’s app messages with your brother where you had discussed the event. I note photographs of your brother’s injuries after he had been arrested, letters from the brother of your co­worker who had been arrested at the same time as you in 2006, medical reports from here in Canada confirming scaring and getting the opinion that the presentation of your injuries is consistent with the allegations about how you received those injuries and I further note letters from your mother and sister and brother to confirm that they witnessed or experienced your arrest.

[17]     Today you also showed me on your phone that you under an assumed name on Face book but still one that could be connect to you and your family had made posts in groups entitled no to high prices, freedom to Sudanese people, no to greed hash tag independent justice system the revolution continues, the national movement group, republican brotherhood and the November 27th movement civilian take over.

[18]     You did show me that directly through Face book and I was able to navigate through that, we were able to have that interpreted by cite by Madame Interpreter.

[19]     I’ve also considered whether your re-availments to Sudan negatively impact your credibility; however you’ve offered evidence that your mother was ill and you felt you needed to go back and went with the assistance of someone who worked at the airport.

[20]     In consideration of the supporting documents provided at Exhibit 10 which do establish your mother’s illness, I do find that you’ve offered a reasonable explanation for these re-availments, it does not impact your credibility.

[21]     I further considered whether your failure to claim asylum in the Netherlands impacts your credibility, however you’ve testified that at that time you had stable status in Oman and there was no risk of not, there was no risk should you have not made a claim there. I do find that’s a reasonable explanation for that failure to claim again it does not impact your credibility.

[22]     I further considered whether your failure to claim asylum in the United States after you had lost status in Oman negatively impacts your credibility. You explained that the intention was to claim protection in Canada. You spent four days in the United States before crossing irregularly into Canada.

[23]     You had also testified that you completed your own research into the situation in the United States and had learned that the United States had anti-immigrant policies at that time. In consideration of the current political climate in the United States and your relative short stay there again four days, I do find that you’ve offered a reasonable explanation for your failure to claim asylum in the United States. I will not draw any negative inference regarding your credibility from this issue.

[24]     I do find that the credible evidence available to me outweighs the negative credibility inferences I drew from the omitted allegations.

[25]     Therefore overall I do find you to be credible. I therefore find your allegations as outlined in your basis of claim form and your testimony to be credible. I find that you’ve established your subjective fear.

[26]     I find there’s a link between what you fear and two of the five convention grounds, specifically you have been persecuted by the Sudanese government and may be at risk of further persecution because of your antigovernment political opinions.

[27]     I also note that the associated claimants hold membership in a particular social group as the family member of someone with a political opinion. Therefore these claims have been assessed under Section 96 of the Immigration and Refugee Protection Act.

[28]     The objective documentation supports your allegations that individuals in your circumstance face persecution in Sudan. Before I discuss the available evidence I will note that I can take notice that there has been a change in the regime in Sudan, I can take notice from the available news that we can see on a regular basis, however when considering that I note that any report that I’ve seen suggests that this regime change is in name only. There’s no evidence before me to describe any improving situation in Sudan, rather there’s still evidence of people being persecuted for political opinions.

[29]     There’s no indication that this would stop just because the person at the head of the government has changed. Without that evidence I will still rely on the national documentation package as found at Exhibit 6 of the national documentation package for Sudan.

[30]     I specifically note Item 1.4 which states that the NISS is responsible for the management of operations for national security. Under Sudanese legislation individuals suspected to be a threat to the state may be detained without charge for up to forty five days without judicial review.

[31]     I also note that the same piece of legislation provides NISS officials with impunity for acts involving their official duties. This evidence suggests or states that though the NISS has for the last decade perpetrated human rights violations with impunity, its current human rights violations have reached unprecedented levels.

[32]     The NISS has used excessive and sometimes lethal force in breaking up demonstrations, protests and rallies as well as office raids and confiscation of newspapers, perpetrated arbitrary arrests and deliberately targeted ethnic and religious minorities.

[33]     There were also several reports of individuals detained due to their actual or assumed support of antigovernment forces.

[34]     I’ve considered this documentary evidence in conjunction with your credible allegations about your political opinions. I find that you have a well founded fear and that you face a serious possibility of persecution based on your political opinion.

[35]     I further note that the national documentation package states that there’s evidence of the Sudanese authorities targeting family members of people who are of interest to them. I refer to Items 1.4 and 1.7 of the national documentation package.

[36]     Therefore I find that there is a well founded fear and a serious possibility of persecution for the associated claimants in this matter, as family members of someone with a political opinion.

[37]     As the agent of persecution is the state which acts with impunity, I find that there is clear and convincing evidence that state protection would not be available to you. Likewise as antigovernment political opinions are persecuted throughout the country and the NISS operates across the country there would be no safe place for you anywhere in Sudan.

[38]     As the test for an internal flight alternative fails on the first prong I find there would be no internal flight alternative available.

[39]     Based on the totality of the evidence I find the claimant’s to be Convention refugees. Your claims are therefore accepted.

[40]     So this will conclude today’s hearing. I’d like to thank everyone for their participation. Thank you Madame Interpreter, thank you counsel and thank you both.

———- REASONS CONCLUDED ———-

Categories
All Countries Sri Lanka

2019 RLLR 95

Citation: 2019 RLLR 95
Tribunal: Refugee Protection Division
Date of Decision: June 25, 2019
Panel: S. Shaw
Counsel for the claimant(s): Ian D. Hamilton
Country: Sri Lanka
RPD Number: TB8-03757
ATIP Number: A-2020-01459
ATIP Pages: 000084-000089


DECISION

[1]       MEMBER: This is the decision of refugee protection claim for file number TB8-03757.

[2]       The panel has considered the claimant’s testimony and the other evidence in this case and is ready to render an oral decision.

[3]       The claimant is a citizen of Sri Lanka and is claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[4]       Since this case involves gender related issues the panel also considered the guidelines within Chairperson’s guideline number four titled women refugee claimants fearing gender related persecution.

[5]       Preliminary issues were also addressed at the hearing, and the panel accepted late disclosure documents which are relevant and probative to this claim and these documents were accepted as exhibits. The panel notes this hearing was held in two sittings.

[6]       With regards to determination, the panel finds that the claimant is a Convention refugee for the following reasons. The claimant has established a serious possibility of persecution based on the Convention grounds of a perceived political opinion and her ethnicity.

[7]       The claimant’s allegations are set out in the claimant’s Basis of Claim Form and her amended Basis of Claim Form and was further supplemented by her testimony and supporting documents.

[8]       The claimant alleges that she fears persecution at the hands of the Sri Lankan army and pro­government militants, including the Karuna group because of the perceived political opinion that she is a supporter of the Liberation Tigers of Tamil Eelam, herein called the LTTE. The claimant also fears persecution in Sri Lanka because her … of her ethnicity as a Tamil.

[9]       In summary, the claimant is a 26-year-old single female from Jaffna the Northern Region of Sri Lanka. She grew up during the civil war and was fearful because the Sri Lankan army visited her family home on several occasions in search of LTTE supporters.

[10]     The claimant alleges that she was detained by police on a number of occasions which started back in January of 2009. In April 2009 she was taken to an army camp with other girls where she was beaten and accused of joining the LTTE.

[11]     While at university in Batticaloa the claimant alleges that she also encountered problems with the army Intelligence Unit and members of the Karuna group who interrogated her because she was suspected of being an LTTE supporter. And she was accused of being a Tamil Tiger Cub at that time.

[12]     In May 2016 at age 23 the claimant returned to Jaffna and became an active member of her community. She was again questioned by army officers in relation to her community activities and her perceived LTTE activities.

[13]     The claimant alleges that the main fearful incident that led to her decision to flee Sri Lanka occurred in November 2017 when she was taken to an army camp where she was detained for seven hours and interrogated after being accused of being an LTTE supporter. During her interrogation an army officer made physical, sexual advances towards her and she was threatened with detention under the country’s Prevention of Terrorism Act.

[14]     As a result of this incident of November 28th, 2017 the claimant’s father contacted an agent smuggler who secured a false Canadian passport for the claimant. The claimant fled Sri Lanka on [XXX], 2017, arriving in Canada the following day, and she claimed refugee protection a few weeks later.

[15]     With regards to analysis, the panel considered all of the evidence submitted and determined the following.

[16]     On a balance of probabilities, the claimant’s identity as a citizen of Sri Lanka is established by testimony and the copy of her national identity card and birth certificate.

[17]     With regards to credibility, testimony given under oath is presumed to be true unless there is a valid reason to doubt its truthfulness.

[18]     The panel considered the claimant’s testimony as a whole and the panel finds that the claimant was a credible witness and the panel believes what has been alleged in support of this claim relating to the key elements of this claim.

[19]     Although the claimant’s testimony was disjointed at times during the hearing, nonetheless, the panel is satisfied that her testimony was generally consistent with … in relation to central elements of this claim. Further, the panel is satisfied that any inconsistencies, contradictions, or omissions that were central to this claim are adequately explained.

[20]     Specifically, the panel is satisfied that the claimant did not claim refugee protection in India prior to coming to Canada since she was in transit through India en route to Canada.

[21]     The panel is also satisfied that the claimant would be of interest to the Sri Lankan authorities as they have visited her family since she left Sri Lanka to inquire about her whereabouts.

[22]     In addition, the panel is cognizant that the claimant was interrogated by the CID and jailed at the Negombo Prison in [XXX] 2016 where she was fingerprinted and again accused of being an LTTE members. So, returning to Sri Lanka could increase this claimant’s risk for interrogation and detention.

[23]     In addition, the claimant provided corroborating documents as evidence including a support letter from her father, medical diagnostic ticket report, and other documents that the panel considered credible.

[24]     Therefore, after review, the … the panel satisfied, on a balance of probabilities, that the claimant’s allegations are credible and further, the panel accepts that the claimant has established a subjective fear of persecution if the claimant returns to Sri Lanka.

[25]     With regards to objective evidence and the objective basis of this claim, the panel finds that this claimant’s allegations are corroborated by the country conditions as noted in the National Documentation Package and in counsel’s disclosure package.

[26]     The panel is satisfied that this claimant fits the profile of a young Tamil individual from the Jaffna Region who is perceived as a LTTE supporter by the Sri Lankan authorities and whose family members are also linked to the LTTE. And therefore this profile is further of interest to the Sri Lankan Government.

[27]     The panel is satisfied that this profile is supported by the NDP country condition documents. Specifically, noted in Items 1.4, 1.1(1), 2.2, 13.7, 1.9, and 13.10, as well as other references within the country conditions documentation.

[28]     Therefore, when assessed in context of the country conditions the panel is satisfied that this claimant’s subjective fear of persecution have an objective basis.

[29]     Specifically, the NDP notes that Sri Lankan authorities have been actively engaged in rooting out LTTE supporters and those viewed as having connections with the LTTE, and if a person is detained by the Sri Lankan security forces then there remains a real risk of ill-treatment or harm which requires international protection.

[30]     Amnesty International also remains concerned that the persistent climate of impunity in Sri Lanka as the government has failed to provide minorities with protection from violence and discrimination or has failed to protect those suspected of LTTE links.

[31]     Amnesty International is also concerned that Tamils continue to experience harassment, threats, and arrest by security forces whom they suspect of LTTE links and this is based largely on their ethnicity and their place of origin or where they live, and it is more militant with regards to Tamils from the north.

[32]     The NDP also indicates with regards to gender related issues, in Item 13.8 that it is a well known reality that rape of women by security forces take place in Sri Lanka, and Items 1.4 indicates that … that the UN Human Rights Council Special Rapporteur report notes that women in the north and east of Sri Lanka continue to suffer from the scars of the conflicts of war, as well as the insecurity that resulted from the subsequent militarization.

[33]     Also, in the last stages of the war and its aftermath human rights abuses against civilian population by both sides of the conflict were rife, including sexual and gender based violence. The climate of impunity and the additional insecurity created by the militarization have meant that women are living with multiple challenges that threaten their freedom, dignity, and security on a daily basis.

[34]     And although sexual assaults by military personnel are said to have decreased with the downsizing of the army in the north and east, nonetheless, the climate of fear still remains amongst Tamil women in that area where the military presence have continued.

[35]     In addition, Item 1.4 of the NDP notes that Tamil women in Northern Sri Lanka still face the risk of rape and harassment by security forces who are present throughout the region and that their lives are even more negatively impacted by the climate of fear or by a worrying uptick in violence against women within the Tamil community. The ever present threat of violence by the military has led women to lead tightly restricted lives, limiting their daily activities in order to minimize their risk of sexual assault.

[36]     Next with regards to State protection, the panel finds that the claimant has rebutted the presumption of adequate State protection with convincing evidence that adequate separate is not available to this claimant and is not reasonable forthcoming in this case since the agents of persecution are the Sri Lankan security forces, specifically, the army and its affiliates.

[37]     Review of country conditions also specifically indicate in Items 2.10, 9.2, and 10.9 which summarizes that Tamils throughout Sri Lanka, especially those in the north and east, have reported security forces regular surveil or harass members of their community.

[38]     And further, many human rights challenges still persist in Sri Lanka, including torture and ill­treatment of detainees and surveillance and harassment of civil society and those perceived to be LTTE sympathizers.

[39]     Item 2.1 in the NDP notes that State agents commit human rights abuses with impunity and that a general culture of impunity still remains in Sri Lanka.

[40]     After review, the panel is also satisfied that no viable internal flight alternative exists for this claimant because she would face a serious possibility of persecution throughout Sri Lanka because her agents of persecution are associated with the ruling government and their affiliates such as the army and the police who have control throughout the country.

[41]     In conclusion based on the totality of the evidence and the previously mentioned analysis the panel finds that this claimant has established a serious possibility of persecution based on the Convention ground of a perceived political opinion that she is viewed as an LTTE supporter and hence, viewed as anti-government and based on her ethnicity as a Tamil female.

[42]     Therefore, this panel concludes that this claimant is a Convention refugee as defined by Section 96 of the Immigration and Refugee Protection Act. And as such, the panel accepts this claim for refugee protection in Canada.

[43]     That is the end of the decision and its reasons.

[44]     Thank you all. Thank you, Mr. Interpreter. Thank you, ma’am. Counsel, thank you. And I do appreciate your comments and your apology earlier, counsel. Thank you. I appreciate that.

[45]     That brings me to the end and the hearing is now concluded. We are off record.

———- REASONS CONCLUDED ———-

Categories
All Countries Yemen

2019 RLLR 94

Citation: 2019 RLLR 94
Tribunal: Refugee Protection Division
Date of Decision: March 1, 2019
Panel: J. Kushner
Counsel for the claimant(s): Mohamed Mahdi
Country: Yemen
RPD Number: TB8-03742
ATIP Number: A-2020-01459
ATIP Pages: 000080-000083


REASONS FOR DECISION

[1]       [XXX] claims to be a citizen of Yemen and is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

ALLEGATIONS

[2]       The claimant’s allegations are set out in his Basis of Claim form as amended and were expanded upon in testimony.2 To summarize, the claimant fears that he will be harmed or killed by Houthis because of his real and imputed anti-Houthi political opinion. The claimant’s brother has engaged in anti-Houthi journalism despite the Houthis charging the claimant with ensuring that his brother supports the Houthis.

DETERMINATION

[3]       The panel finds that the claimant has established that he faces a serious possibility of persecution in Yemen.

ANALYSIS

Identity

[4]       The claimant’s personal and national identity as a citizen of Yemen has been established on a balance of probabilities based on his testimony and a copy of his Yemeni passport.3

Credibility

[5]       On a balance of probabilities the panel accepts as credible the claimant’s testimony regarding the central allegations in this claim. The claimant provided supporting documents for some of these allegations. The claimant’s testimony was generally consistent with the documentary evidence. The claimant provided evidence regarding his most recent trip to Yemen when his brother was detained and abused by Houthis, when the claimant was ordered to ensure his brother supported the Houthis in future, and when the claimant and his brother separately fled the country. The claimant has provided corroborating evidence including letters from his wife who remains in hiding in Yemen4 and from his brother who fled to Egypt.5 The claimant’s documentary evidence supports his allegations regarding his brother’s [XXX] work criticizing Houthis, supports the claimant’s brother’s detention and mistreatment by Houthis, and supports the claimant’s forced pledge to the Houthis to ensure that his brother supported the Houthis. The claimant also provided evidence of his brother’s [XXX].6

Subjective fear

[6]       The claimant has lived in Saudi Arabia as a temporary resident for approximately 25 years though he currently has no immigration status there and has never had any permanent status there. Over the last several years the claimant has travelled to Yemen on multiple occasions. The claimant’s explanation for making repeated trips to Yemen while it was in a state of civil war is that he was on vacation, he wanted to see his family, and he did not go out often. After being targeted by the Houthis on his last trip to Yemen, the claimant later travelled to the United States of America (USA), though he did not seek asylum there. The claimant explained that Muslims are suffering under the administration of the current USA president. The claimant’s explanations do not completely mitigate the panel’s concerns regarding the lack of subjective fear evidenced by repeatedly returning to a situation where the claimant was at risk, and of not seeking asylum when he had the opportunity to do so. However, the panel finds that in the claimant’s particular circumstances the concern that remains is not determinative.

Persecution

[7]       The country conditions documents provided by the claimant,7 along with the objective evidence in the National Documentation Package (NDP),8 set out the situation in Yemen in detail. The documents are generally consistent regarding the risk faced by those who are critical of the Houthis or who are seen as having a political opinion that is against the Houthis. The Houthis control a large portion of Yemen, including the area where the claimant’s family was living. The claimant is seen as the head of a family who has repeatedly and publicly spoken out against the Houthis.9 The claimant’s family includes a journalist who has been detained, tortured, and threatened, by Houthis. The documentary evidence contains numerous reports of the Houthis engaging in violence, human rights violations, arbitrary detentions, and torture.

[8]       The objective evidence is clear that Yemen is currently dealing with a widespread armed violent conflict. It involves multiple factions including Houthi rebels, Saudi-led or Saudi­supported armed forces, as well as various extremist factions in Yemen including reports of Al­Qaeda being active in many parts of the country. There is no single central government in Yemen. The situation in the country has been described as a civil war. The evidence before the panel gives no indication that the conflict will be ending in the near future. There are reports of an increasing number of civilians being seriously affected by the ongoing conflict, including being displaced, harmed, or killed. When considering the widespread and ongoing nature of the conflict in Yemen, the panel finds that the current security situation in the country is such that there is no access to state protection nor is there a viable internal flight alternative in the claimant’s particular circumstances.

CONCLUSION

[9]       Having considered all of the available evidence the panel finds that the claimant faces a serious possibility of persecution in Yemen. The panel concludes that the claimant is a Convention refugee. The panel therefore accepts the claim.

(signed)           J. Kushner

March 1, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
2 Exhibit 2 and exhibit 12, item 1.
3 Exhibit 1.
4 Exhibit 7, item 1.
5 Exhibit 6, item 4.
6 Exhibit 6, item 7.
7 Exhibits 8-11.
8 Exhibit 3, National Documentation Package (NDP) for Yemen (31 October 2018).
9 Exhibit 7, item 2.

Categories
All Countries Palestine

2019 RLLR 92

Citation: 2019 RLLR 92
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2019
Panel: A. Green
Counsel for the claimant(s): M. Mary Akhbari
Country: Palestine
RPD Number: TB8-01656
ATIP Number: A-2020-01459
ATIP Pages: 000062-000065


[1]       MEMBER: I have had an opportunity to consider the evidence before me, and I will now render a decision orally.

[2]       Sir, you will be provided with a transcript of my decision, which I reserve the right to edit.

[3]       The Claimant, [XXX], is claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. In assessing your claim, I have considered your oral testimony, the documentary evidence filed by your counsel on your behalf, and the information in the Board’s National Documentation Package on the occupied Palestinian territory.

[4]       In summary, the Claimant is a 40-year old man who was born in Saudi Arabia on the [XXX] 1978. The Claimant held temporary residence status in Saudi Arabia and was not entitled to citizenship. In 1995, when the Claimant was approximately 17 years old, he relocated to Gaza with his parents; however, the situation in Gaza turned out to be less than ideal. The Claimant’s family, like many Gazans, faced problems due to nearby Israeli settlements, who had the protection of the Israeli Army. The Claimant alleges that he was abused on several occasions by Israeli soldiers at checkpoints. Further, the Claimant and his family faced intimidation by Hamas. The Claimant himself was asked to join Hamas on a number of occasions but would tell them that he was not interested. Hamas perceived him as a traitor or a supporter of Israel. Due to the problems in Gaza, the family eventually returned to Saudi Arabia in 2001; however, the Claimant and his family would visit Gaza occasionally.

[5]       In 2009, the Claimant travelled to Gaza to check on relatives, and the family home. The Claimant was stopped at an Egyptian checkpoint and detained. While in detention, he was interrogated, physically assaulted, and sustained multiple injuries, including a broken shoulder. His interrogators wanted to know about his relationship with militants in Gaza. After approximately six months, the Claimant was released from Egyptian detention. In 2012, the Claimant returned to Gaza. While there, he was summoned by Hamas and asked why he had been arrested by the Egyptian Government in 2009. The Claimant was interrogated and ordered by Hamas to report for further questioning on three occasions. After the third reporting, the Claimant became concerned and left Gaza. He has not returned to Gaza since 2012. In 2016, the Claimant was terminated or was advised that he would be terminated from his employment in Saudi Arabia; however, he was able to transfer his sponsorship to a Saudi citizen for a limited period of time but had to pay a bribe to do so. The Claimant was unable to find work and feared deportation to Gaza. Therefore, on [XXX] 2017, the Claimant left Saudi Arabia, entering Canada on [XXX], 2017, where he filed a refugee claim.

[6]       The Panel finds that you have established that you face a serious possibility of persecution for a Convention ground pursuant to section 96 of the Immigration and Refugee Protection Act.

[7]       In regards to your identity, I find on a balance of probabilities that you are a stateless Palestinian who was born in Saudi Arabia and who lived in the occupied Palestinian territories, specifically Gaza for a number of years. This was established by your sworn testimony and the supporting documentation you provided, including your Palestinian Authority-issued travel document, and your UNHCR Family Registration card.

[8]       I find that both Saudi Arabia and Palestine are countries or places of former habitual residence; however, you cannot return to Saudi Arabia due to the loss of employment. Therefore, your claim has been assessed against Gaza.

[9]       In regards to credibility, I find you to be a very credible witness, who testified in a straightforward manner about your experiences in Gaza, specifically, your encounters with Hamas. You also provided ample supporting documentation found in Exhibits 8, 9 and 10.

[10]     In regards to subjective fear, the Panel considered your delay in leaving Saudi Arabia considering that you only had temporary status there, and also because you had encountered very serious problems in 2009 and 2012, but you only left Saudi Arabia in 2017. However, I found your explanation to the Panel’s questioning to be quite credible, and I draw no negative inference. Likewise, I conQuebec doinsider that you travelled to the United States in [XXX] of 2017 with your wife and daughter but returned to Saudi Arabia. When asked about that, you also gave a very plausible explanation, and so I draw no negative inference in that regard.

[11]     Regarding the objective basis for your fear, the National Documentation Package on the occupied Palestinian territory, which in this case is Exhibit 3, talks about the situation in Gaza. It says that “In 2007…”, and this is Item 2.1, “…Hamas staged a violent takeover of [the Palestinian Authority] government…in the Gaza Strip and has since maintained a de facto government in the territory.” Item 2.1 of Exhibit 3 states that there were “…significant human rights abuses under Hamas…included unlawful and arbitrary killings, disappearances, torture, arbitrary arrest and detention…”. Item 1.12 of Exhibit 3 states as well that there were serious human rights abuses under Hamas authorities in Gaza, which again includes arbitrary arrests, lent to detention and widespread use of torture, and the use of the death penalty. It says specifically that Hamas Security Forces continue to kill, torture, and kidnap, as well as arbitrarily detain or otherwise harass Palestinians, who they view as Fatah supporters. And that is consistent with your testimony here today. Item 2.1 further speaks about the harassment of people who oppose Hamas, and you testified that on several occasions Hamas did ask you to join and you refused to do so, and that people who are not with Hamas are viewed as opposing Hamas. And I find that that is the circumstance in your case. So I find that your fear of persecution has an objective basis.

[12]     In regards to state protection, I consider that, as I stated, the documentary evidence indicates Hamas is the governing authority in the Gaza Strip. They have considerable power and influence, and Item 2.1, indicates that impunity was a major problem under Hamas. Having found that you have established a well-founded fear of persecution from Hamas, I find that you would not be able to obtain adequate state protection; therefore, you have rebutted the presumption of state protection.

[13]     Likewise, I find that you have no viable internal flight alternative given that Hamas is the governing authority in Gaza, and even though the occupied Palestinian territory also includes the West Bank, I find that you would not be able to relocate to the West Bank. According to Item 1.14 of the documentary evidence, Item — sorry — Exhibit 3, Palestinian movement throughout the West Bank remains restricted by a complex system of physical and administrative barriers, checkpoints, roadblocks, and a permit system. Item 14.5 states that “freedom of movement between Gaza and the West Bank is nearly ‘non-existent”‘. In any event, I find that you face a serious possibility of risk in all of the occupied Palestinian territory.

[14]     In conclusion, then, having established the presence of subjective fear and an objective basis for that fear, I find that you face a serious possibility of prosecution, that adequate state protection does not exist, and you do not have a viable internal flight alternative. I therefore accept your claim pursuant to section 96 of the Immigration and Refugee Protection Act, and I wish you the very best of luck.

– – – DECISION CONCLUDED – – –

Categories
All Countries Syria

2019 RLLR 91

Citation: 2019 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 12, 2019
Panel: Stephen Rudin
Counsel for the claimant(s): Katherine M Macdonald
Country: Syria
RPD Number: TB8-01528
Associated RPD Numbers: TB8-01583, TB8-01584
ATIP Number: A-2020-01459
ATIP Pages: 000055-000061


REASONS FOR DECISION

[l]        [XXX], and [XXX], (the claimants) are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

Joined claims

[2]       Pursuant to Rule 55 of the Refugee Protection Division (RPD) Rules, these claims for refugee protection were heard jointly.2 The principal claimant is [XXX]. Each claim was decided on its own merits, and decisions were made for each claimant.

Appointment of a Designated Representative

[3]       The IRPA requires the designation of a representative for all claimants less than 18 years of age. The children in this claim are aged three and seven.

[4]       In accordance with subsection 167(2) of the IRPA,3 and Rule 20 of the RPD Rules,4 on February 5, 2018, the RPD designated [XXX] to be the representative for the minor claimants for the purposes of this claim for refugee protection.

ALLEGATIONS

[5]       The complete story alleging the basis of the claimant’s fear is captured in the Basis of Claim Form (BOC),5 and amendment to the principle claimant’s BOC.6 The associate claimants rely on the principle claimant’s BOC.7 Their allegations can be summarized as follows.

[6]       The claimant alleges that she and her children fear returning to Syria. As a Sunni Muslim, and a person who was born and has lived in Saudi Arabia, she fears that if they were to return, they would be detained, tortured, and possibly face death because of her father’s affiliation as a member of the Muslim Brotherhood.

[7]       The claimant alleges that many of her family members have been targeted by the current Syrian regime because they were perceived as being opponents of the govermnent.

[8]       Believing that they could not remain in Saudi Arabia as they had no status, and because they feared returning to Syria, the claimants, accompanied by the principle claimant’s mother-in­ law, former husband and two of her sisters-in-law, left Riyadh, Saudi Arabia on [XXX], 2018, and arrived in New York on the same day. On [XXX] 2018 the claimants flew to Buffalo, and crossing at the Peace Bridge into Canada, made their applications for refugee protection.

DETERMINATION

[9]       For the reasons that follow, the panel finds that the claimants would face a serious possibility of persecution on a Convention ground, and on a balance of probabilities, would be subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture upon their return to Syria.

[10]     Therefore, the panel finds that the claimants are a Convention refugees, and have a well­ founded fear of persecution or hmm should they return to Syria.

IDENTITY

[11]     For the following reasons, on a balance of probabilities, the panel finds that the principle claimant is a citizen of Syria. She established her citizenship by providing a photo copy of her Passport.8

[12]     For the following reasons, the panel notes that the associate minor claimants are stateless. The minor claimants were born in Saudi Arabia. The principle claimant’s former husband is a Palestinian, who was working in Saudi Arabia on a temporary residence permit. According to their birth certificates, the minor claimants were born in Saudi Arabia.9 Although the habitual residence of the minor claimants was Saudi Arabia, they had no entitlement to permanent status or claim against Palestine. Moreover, the minor claimants hold Palestinian Passports and travel documents, which limited their entry to Syria.10

ANALYSIS

[13]     In assessing this claim, the panel focused on the credibility of the claimants’ allegations of the risk of persecution or harm they might face upon their return to Syria because of their perceived political opinion.

[14]     The panel is cognizant of the difficulties faced by the claimant in establishing their claims. These include cultural factors, the environment of the hearing room, and the stress inherent in responding to oral questions through an interpreter. The panel has taken these considerations into account in arriving at its determination.

[15]     For the following reasons, on a balance of probabilities, the panel found the principal claimant to be a credible witness, and therefore believed what she alleged in support of their claims. Although her testimony sometimes focused on the current situation in Syria and had to be reminded to address her specific fear as it related to a nexus to the IRPA, she testified in a straight forward manner and there were no relevant inconsistencies in her testimony, or contradictions between her testimony and the other evidence before the panel.

[16]     The claimant testified that her father and brother were believed to be members of the Muslim Brotherhood, and as early as 1980 fled Syria to live in Saudi Arabia, where he claimant was born. She further testified that her brother was wanted by the Syrian authorities because of the possible family link to the Muslim Brotherhood, and his avoidance of compulsory military service. Further, when the claimant entered Syria for her wedding celebration in 2011, the claimant testified that she was suspected at the border of being involved with the Muslim Brotherhood, and believed that she was fortunate not to have been arrested.

[17]     For the following reasons, on a balance of probabilities, the objective evidence indicates that there is more than a mere possibility that the claimants would face persecution or harm if they were to return to Syria.

[18]    The United States Department of State 2018 report notes that:

[t]here continued to be a significant number of reports of abuse of children by the Syrian government… [There are] regular reports of detention and torture of children younger than age 13, in some cases as young as 11, in government detention facilities.11

[19]    The International Religious Freedom Report indicates that:

… [m]embership in the Muslim Brotherhood or “Salafist” organizations is illegal in Syria and punishable to different degrees, including by imprisonment or death.

[…]

The personal status law on divorce for Muslims is based on an interpretation of sharia implemented by government-appointed religious judges. In interreligious personal status cases, sharia takes precedence. A divorced woman is not entitled to alimony in some cases; a woman may also forego her right to alimony to persuade her husband to agree to the divorce. Additionally, under the law, a divorced mother loses the right to guardianship and physical custody of her sons when they reach the age of 13 and of her daughters at age 15, when guardianship transfers to the paternal side of the family.

[…]

An individual’s birth certificate records his or her religious affiliation. Documents presented when marrying or traveling for a religious pilgrimage also list the religious affiliation of the applicant.12

[20]     The same document noted that, “[t]here were continued media reports the government and its Shia Muslim militia allies [consisting mostly of foreigners] killed, arrested, and physically abused members of opposition groups which were predominantly Surmi Muslim.”13

[21]     The panel has chosen to rely on the documentary evidence of the Syria National Documentation Packages (NDP), because it originates from a variety of reputable independent sources, which, reasonably, is expected to be knowledgeable with respect to the situation in Syria. The documentary evidence is seen as reliable, probative, detailed information, so as to provide the panel with a thorough understanding of the political situation in Syria.

[22]     On the basis of the totality of the evidence and the cumulative findings noted above, in the specific instances of this case, the panel finds that the claimants have satisfied their burden of establishing more than a mere possibility that they would face persecution should they return to Syria. Based on the forgoing reasons, the panel finds that because of the principle claimant’s perceived relationship to the Muslim Brotherhood, there is more than a mere possibility that the claimant would face persecution or harm should she return to Syria.

[23]     In regard to the minor claimants, for the following reasons the panel finds that their claims for refugee protection should be accepted. They have never lived in Syria, and with their immediate family now in Canada, there is no one in Syria to care for them. Further, in a decision of the Honourable A.W.J. Sullivan of the Ontario Court of Justice, the principle claiman) has been granted joint custody of the minor claimants.14 In making this finding, the panel is guided by the principle expressed in Baker, that although not determinative, the best interests of the child is an important factor in humanitarian and compassionate considerations that must be given substantial weight.15

CONCLUSION

[24]     Therefore, based on the foregoing reasons, the panel finds that the claimants are Convention refugees, and their claims are accepted.

(signed)           Stephen Rudin

November 12, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Refugee Protection Division (RFD) Rules SOR/2012-256 [RPO Rules], Rule 55.
3 IRPA, supra, footnote 1, section 167(2).
4 RPD Rules, supra, footnote 1, Rule 20.
5 Exhibits 2-4, Basis of Claim Forms (BOCs).
6 Exhibit 10. Amended BOC.
7 Exhibit 2, BOC – TBS-01528.
8 Exhibit 1, Package of Information ftom the Referring CBSA/CIC, Copy of Passport.
9 Exhibit 9, Personal Disclosure, at pp. 19-20 and 23-24.
10 Exhibit 8, Temporary Resident Visa (TRV) Materials, Copies of Palestinian Passports.
11 Exhibit 5, National Documentation Package (NDP) for Syria (March 29, 2019), item 2.1.
12 Ibid., item 12.1.
13 Ibid.
14 Exhibit 9, Personal Disclosure, at pp. 38-41.
15 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

Categories
Afghanistan All Countries

2019 RLLR 89

Citation: 2019 RLLR 89
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2019
Panel: L. Colle
Counsel for the claimant(s): Ali Yusuf
Country: Afghanistan
RPD Number: TB7-25153
Associated RPD Numbers: TB7-25154, TB7-25155, TB7-25156, TB7-25157
ATIP Number: A-2020-01459
ATIP Pages: 000043-000047


DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in the case and I’m ready to render my decision orally. I would like to add that in event that written reasons are issued, a written form of these reasons may be edited for spelling, syntax, and grammar, and references to the applicable case law and documentary evidence may also be included.

[2]       The claimant is Ms [XXX]. Claims to be a citizen of Afghanistan and is claiming refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       She is joined by four minor claimants her children, all with the last name [XXX] and whose names are [XXX], and you are appointed as the designated representative to the four minor age children whom I saw in the video conference at the last sitting.

[4]       In deciding your claim I’ve also considered the guideline on minor refugee claims. That’s the guideline number three and also on the guideline four on women refugee claimants fearing gender related persecution.

[5]       I find that all five of you are Convention refugees for the following reasons.

[6]       You allege that you fear returning for two reasons to Afghanistan. One for the security situation in Afghanistan, the (inaudible) and the current war with the Taliban and also that you and the minor claimants would be targeted because your husband has been a high ranking official with the Afghan Government.

[7]       Now, I note that the claimant’s husband Mr. [XXX](ph) [XXX], testified at the last sitting on March 6th and testified via phone from Kabul.

[8]       And also, you explained that you … your husband was posted in Afghanistan. Not in Afghanistan but in Brussels, Belgium from [XXX] 2016 or about [XXX] 2017. You went together, a family vacation in Washington State on the Canadian border.

[9]       You had previously discussed with your husband that you wanted to claim asylum in Belgium but he would not release the passports of your children, and that he also disagreed. He did not want you to cross the border ’cause he felt that it would be an illegal crossing and it would be not proper for you and the minor claimants cross the Canadian border to make refugee claims.

[10]     Across … but you did cross in [XXX] 2017 made … and made refugee claims, and you spoke to your husband that day by phone and he was upset. But or … as … as we passed into 2018 and 2019 since then you’ve reconciled with your husband.

[11]     Now, what happened before this reconciliation became apparent the Minister representative did not have information that the panel has now and … today … and first brought up two issues that they wanted to intervene under Articles 1(f)(b)(c). First under the United Nations Convention relating to the status of refugee, and l(f)(c) as well.

[12]     Now, under 1(f)(b) the Minister believed that there were serious reason for concern that the claimant has committed … committed an act of abduction as described in Section 283 of the Criminal Code. Then under 1(f)(c) the Minister believed that there were serious reasons for considering that the claimant had committed acts contrary to the purposes and principles of the United Nations. Specifically, the United Nations Convention on the rights of the child and, however, since there was no consent letter from your husband on file.

[13]     Subsequent to that on … the Minister’s representative wrote another letter on March 5th, 2019. That is Mr. Patrick Klauss, K-L-A-U-S-S, a hearings officer with the Canada Border Services Agency, and said the Minister is withdrawing their participation from … from the refugee hearing.

[14]     The Minister did conduct an investigation that did not yield any adverse information. The Minister also contacted background checks via the RCMP, and they did not indicate that the minor children had been reported missing or abducted, and also … Minister’s rep also added a Hague Application has also not been filed with regards to the minor children. Hague is spelling, H-A-G-U-E.

[15]     All right. And it said further, the Minister is of the understanding that the husband has now granted permission for his children to be in Canada.

[16]     Now, the Minister added that the Minister’s aware of the possibility of the l(f)(b) exclusion should … could also be considered by they panel as the claimant’s action could potentially fall within the ambit, A-M-B-I-T, of Section 283 of the Criminal Code of Canada.

[17]     However, the panel has considered Section 283 of the Criminal Code and conducted a teleconference with the claimant’s husband from Kabul on Wednesday March the 6th, and the claimant’s husband gave credible testimony. Also, provided important dates including birthdates, marriage dates for the children and the claimant. His testimony was also very consistent with the claimant’s Basis of Claim Form, and he gave credible and very, very detailed information about the security situation in Afghanistan and in Kabul.

[18]     Now, I’ll go into that again, but I also noted that through counsel we also received a written consent letter Exhibit 13 from the claimant’s husband as well as the verbal consent. So, I find that given the Minister’s new position examining Criminal Code Section 283 the … the claimant does not fall under the exclusions Articles either l(f)(b) or l(f)(c). And so, I have no reasons to believe … there’s no evidence that those article … exclusion Articles are in play in this case.

[19]     Now, your identities, all your identities as nationals of Afghanistan is established by your testimony in Dari and also the supporting documentation including the certified true copies of your Afghan passports in Exhibit 1.

[20]     All right. I found you and your husband as a witness are … to be credible witness and … witnesses and therefore I believe what you have alleged in support of your claims. You both testified in a straightforward manner and there are no relevant inconsistencies in either of your testimony or contradictions between your testimony and the other evidence before me such as country documents, personal documents, or the Basis of Claim Forms.

[21]     Now, the … your husband testified that he was a foreign … in the foreign service and is seeking a new position either in the securities … internal security or the Defense Department in Afghanistan.

[22]     He gave a candid assessment of the security situation in Afghanistan today. At least 40 to 50 percent of the territory of Afghanistan is controlled by the Taliban. The … he explained the difficulties in containing the Taliban including the porous borders and other factors that made it very documents to control this insurgency.

[23]     He also explained as an adult. He’s about 45-years-old. His … he lives with his mother and his mother is afraid for his life and fears … doesn’t want him to go out definitely in the evening time at all, to stay close to home. And your husband also said that … that daily security precautions have to be taken. There’d have to be frequent changes in departures and entrances into the house from different situations. For … for example, if someone … if he were to work again he’d have to change his route daily or almost two times a week, biweekly to be safe.

[24]     So … so, I find that in your particular case given that you are family members of a former diplomat with the Afghan Government, that State protection would not be reasonably forthcoming in this particular case. Given that you and your family members the minor claimants would be high valued targets of the Taliban since you are, since you would be targeted because of your family membership and your … your husband’s relatively high profile.

[25]     I … I also considered Exhibit 7 the latest National Documentation Package for Afghanistan from February 28, 2019 and note the tenuous security situation. The State is willing to provide protection but in many instances is unable to do so.

[26]     Given the targeted attacks on women and children by the Taliban, for … for example, I see that in the Department of State report for Afghanistan in Section 2.1 and other human rights documents in the Index.

[27]     Now, going back briefly credibility, I … I accept your explanation why you didn’t claim in Belgium. You were under your husband’s … well, he had the passports and wouldn’t let you even try to claim there. And … and in July 2017 there was again, you were at … disagreement about what to do with yourself and the children, and you took action to … because of your fear of returning to Afghanistan to make claims in Canada.

[28]     And I must say also Mr. [XXX] gave phenomenally detailed information about the security situation in Afghanistan and he obviously, on a balance of probabilities, was a diplomat, has been involved with the Afghan Government.

[29]     Now, I’ve considered whether a viable internal flight alternative exits for you in Kabul. But on the evidence before me I find that there is a serious possibility of persecution throughout Afghanistan including Kabul if you were to return to Afghanistan.

[30]     Now, I considered the fact your husband is in Kabul, but he basically is semi-hiding, and the security situation has outlined in the National Documentation Package including the Department of State report is very tenuous right now. That’s why I find that there’s more than a mere possibility of persecution should you return to Kabul since you and the children would be obvious and visible targets of … of blood thirsty Taliban forces.

[31]     Therefore, for all those reasons I conclude all five of you are Convention refugees and therefore accept your claims.

[32]     The hearing … okay. Thank you, Mr. Yusuf, and Mr. Noor, here in Toronto. Thank you.

[33]     This hearing is now concluded.

[34]     CLAIMANT: Thank you.

[35]     INTERPRETER: Thank you very much, Mr. Member.

[36]     MEMBER: Okay, bye-bye.

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