Categories
All Countries South Africa

2021 RLLR 3

Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068

REASONS FOR DECISION

INTRODUCTION

[1]       The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The principal claimant acted as the designated representative for the two minor claimants.

[3]       Throughout the proceeding and in the decision-making process, the Panel applied the

Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.

DETERMINATION

[4]       The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.

[5]       The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.

ALLEGATIONS

[6]       The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.

[7]       In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.

[8]       The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.

[9]       The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.

[l 0]  The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.

[11]     The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.

[12]     The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.

ANALYSIS

Identity

[13]     The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3

Nexus

[14]     The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.

Credibility

[15]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4

[16]     The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5

[17]     The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.

[18]     The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.

[19]     According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.

[20]     Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7

[21]     Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.

State Protection and Internal Flight Alternative

[22]     The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:

“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8

[23]     Tab 5.7 of the NDP further reports that police do not take GBV seriously:

“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9

[24]     The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:

“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10

[25]     Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.

[26]     Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.

CONCLUSION

[27]     Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.

DECISION

[28]     The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.

            Nalong Manivong      

            18 January 2021         

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).

2 Document 2.1 – Basis of Claim Form.

3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;

4 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.).

5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.

6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.

9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

Categories
All Countries Nigeria

2022 RLLR 1

Citation: 2022 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: April 29, 2022
Panel: M. Gayda
Counsel for the Claimant(s): Annie N O’Dell
Country: Nigeria
RPD Number: TB8-20107
Associated RPD Number(s): TB8-20130, TB8-20131, TB8-20132
TB8-20491
ATIP Number: A-2022-00210
ATIP Pages: 000001-000034

REASONS FOR DECISION

[1]       XXX XXXX XXXX (the “principal claimant”) and her four daughters, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the “minor claimants”), and XXXX XXXX XXXX (the “associated claimant”), citizens of Nigeria and Italy, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.2 The principal claimant was appointed as the Designated Representative for the minor claimants. She and the associated claimant, who is her 18-year-old daughter, testified on behalf of all the claims.

ALLEGATIONS

[3]       The claimants allege a fear of gender-based persecution resulting from domestic violence at the hands of the principal claimant’s ex-common-law husband, XXXX XXXX XXXX (“KO”) the biological father of her two youngest children. The principal claimant survived domestic violence at KO’s hands in Italy, where the family resided, and the associated claimant also experienced physical violence at his hands. The claimants allege that all her children, the associated claimant and the minor claimants, witnessed her being abused at the hands of KO in Italy for several years. The claimants used to live with KO in XXXX Italy, a city in north-west Italy, west of XXXX.

[4]       In Italy, the claimants allege that state protection is not adequate for them, given their personal circumstances and given their particular past experiences in attempting to obtain adequate state protection. One of the principal claimant’s attempts to obtain protection resulted in KO being charged and eventually convicted in 2018 for physically harming her in 2015. While these charges were pending, he continued to reside, by law, with the claimants and he continued his physical abuse. The principal claimant alleges that KO was sentenced to over a year of “house arrest” and that this was to occur with him living with the claimants in their shared family home. Fearing this situation would lead to further abuse, the claimants fled to Canada.

[5]       The claimants also allege a fear of gender-based persecution in Nigeria in the form of continued violence from her ex-husband in Nigeria. The principal claimant also alleges that she believes that KO is a member of a transnational criminal gang, the Black Axe Fraternity, and that this heightens the claimants’ risk of harm and their ability to be located in both Italy and Nigeria, by KO himself, KO’s family members and his associates. The claimants also allege to fear that the three minor female claimants would also face gender-based persecution in the form of female genital mutilation (“FGM”) at the hands of members of her family in Nigeria.

DETERMINATION

[6]       I find, for the reasons that follow, that the claimants have established that they would face a serious possibility of persecution in Italy and Nigeria and hence that they are Convention refugees pursuant to section 96 of IRPA. I therefore accept their claims.

ANALYSIS

Credibility

[7]       In making this assessment, I have considered all the evidence before me, including the claimants’ oral testimony over three sittings, the evidence as set out in the Consolidated List of Documents, counsel’s submissions, as well as the Chairperson’s Guidelines, specifically Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution3 which highlight that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. Factors that may affect their ability to provide evidence include difficulty in providing testimony on sensitive matters, cross-cultural misunderstandings as well as social, religious and economic differences.

[8]       I have also considered the psychological assessment before me from a registered psychologist for the principal claimant4 in assessing the principal claimant’s testimony. This psychologist provided a report from an in-person assessment in January 2019 with the principal claimant that consisted of a 4.5-hour visit, involving a semi-structured interview and three psychological screening measures. The psychologist found that the principal claimant’s description of symptoms and answers to questions indicated that she was dealing with XXXX XXXX XXXX XXXX XXXX, was consistent with her described experience of traumatic events and met the provisional criteria for XXXX XXXX XXXX XXXX

[9]       I found the claimants’ testimony to be generally credible with respect to the core allegations of their claim. The principal claimant and associated claimant testified consistently with their BOC forms and their corroborating evidence and provided elaborative details in a natural manner about their circumstances and the incidents that led them to flee Italy and why they believe they would face risks in Nigeria. They provided a good deal of corroborating documentation, and reasonable and knowledgeable responses about this documentation when asked. Their responses to my questions were reasonable and did not appear to be evasive or to embellish their fears.

[10]     I find the claimants to be credible with respect to their core allegations of fearing persecution for themselves and the minor claimants in Italy and Nigeria, and that they have credibly established, on a balance of probabilities, that violence and continued threats of violence from the principal claimant’s ex-husband, KO, have caused this fear. Moreover, they have also credibly established the core allegation of fearing gender-related persecution for the minor claimants in Nigeria, in them being subjected to FGM by the principal claimant’s family. The claimants also provided corroborating evidence with respect to core elements of their claim, and this assists in establishing their allegations, on a balance of probabilities. I will refer to some of this corroborating evidence in my analysis below.

Identity

[11]     I am satisfied that the personal and national identities of the claimants have been established on a balance of probabilities through the principal and the associated claimants’ testimony and the certified true copies of the claimants’ Italian and Nigerian passports, the originals having been seized by the Canada Border Services Agency (CBSA) upon the claimants’ arrival in Canada.5 I find on a balance of probabilities that the claimants are dual citizens of Italy and Nigeria and do not hold citizenship or permanent residence in any other country.

Nexus

[12]     The nexus to a Convention refugee ground for the claimants is that of their membership in the particular social group of women and girls fearing gender-based persecution. The claimants fear domestic violence from KO and those who may associate with him in the Black Axe criminal group, or other individuals that KO may hire to harm them in Nigeria and Italy. The principal claimant has also set out a fear of FGM, another form of gender-based persecution, for the minor claimants in Nigeria, at the hands of members of her own family who support this practice and believe that girls in the family should have it done, even though the principal claimant, their mother, does not want them subjected to this cutting.

[13]     I also note that the claimants’ experiences in Italy, and particularly the principal claimant’s experiences in attempting to obtain protection from Italian state authorities, are also impacted by their race, as Black individuals with dual Nigerian citizenship. Race is an enumerated ground in the Refugee Convention. I have considered how both the immutable characteristics of race and gender intersect and affect the risks alleged by the claimants and this includes their experiences in attempting to obtain adequate state protection, and in attempts they would make to relocate in Italy. Since l have found a nexus in these claims, I have analyzed and accepted these claims pursuant to section 96 of IRPA.

Well-Founded Fear of Persecution

Subjective Fear

[14]     I find that the claimants have established through their credible testimony and reliable corroborating evidence that they are subjectively fearful of returning to Italy and Nigeria. They fled Italy for Canada on XXXX, 2018 and initiated their claims for refugee protection at the airport in Toronto. I find that the claimants’ actions including in the principal claimant’s brief visits to Nigeria at particular points in time prior to them leaving Italy on XXXX, 2018, are consistent with a genuine subjective fear of persecution, in light of their personal circumstances.

Objective Basis for the Risks alleged

Italy

Domestic Violence

[15]     The claimants fear domestic violence in Italy from KO or violence directed at them by his associates in Italy. The country conditions evidence indicates that there are significant concerns with respect to domestic violence against women in Italy. The United State Department of State Report for Human Rights Practices for 2020 in Italy notes that 535 women were killed by domestic partners in the first six months of2020 alone.6 The New York Times in 2018 cites a Eures study that noted that 150 women were killed in Italy each year by abusive partners and that this number makes it one of the highest death tolls in Europe for domestic violence deaths.7 The Eures study also notes that in one third of the fatalities of women at the hands of their domestic partners in Italy, the victims had already complained to the police.8 A 2021 news article notes that one woman is killed every three days in Italy, and that societal attitudes in Italy, even based on a very recent survey, continue to condone and accept violence against women as a normal part of intimate relationships.9 Based on the sum of the country conditions evidence before me, I find that there is a well-founded objective basis for the risks to the claimants of domestic violence from KO in Italy.

Nigeria

Domestic Violence

[16]     Sources indicate that domestic violence remains “widespread” and “prevalent” in both urban and rural areas of Nigeria,10 and many viewed it as “socially acceptable.11” It has been attributed to the ongoing power imbalance between women and men in Nigerian society, and deeply engrained societal attitudes about women’s subordination to men, though there is some evidence that these attitudes are changing.12

[17]     I find that the principal claimant has credibly established, on a balance of probabilities, that she survived repeated instances of domestic violence from KO in Italy. I also find that her eldest daughter (the associated claimant) faced physical assaults from KO and witnessed a good deal of the domestic violence suffered by the principal claimant at KO’s hands. The minor claimants were also in the household and witnessed this domestic violence. I find that the claimants have credibly established that KO has sought the claimants out in Nigeria, and that others in his family and those he associates with, have threatened and physically harmed her mother in Benin City, Edo state. I also find that she has credibly established that KO has spoken in a hostile and threatening manner about her and her role in him having been charged and convicted in Italy, as mutual acquaintances in Nigeria, have contacted the principal claimant in Canada to warn her of KO’s statements.13

The Black Axe criminal group in Nigeria and its trans-national reach, including in Italy

[18]     I also accept that the claimants have credibly established hat KO is affiliated with a criminal group, and on a balance of probabilities, that it is the Black Axe cult or gang. The principal claimant testified about why she believes KO is involved with this gang, based on his behaviour, the type of music and videos he watched and the number of connections he had in many different places in Italy, other European countries as well as in Nigeria. She also testified about how he would boast that he was able to send his “boys” to deal with persons in Italy and also in Nigeria; in fact, he was able to command his brother as well as his “boys” to go to her mother’s home in Benin City, Nigeria where they physically assaulted her mother and threatened her with more harm if she did not contact the principal claimant. She did not appear to embellish her evidence in testimony, admitting that KO never directly acknowledged his involvement in the Black Axe to her. I find that this is consistent with what is known about the Black Axe gang, in that its origins in Nigeria close to Benin City where the principal claimant and the KO both hail from, is described as a secretive, cult-like society. I find the principal claimant’s testimony to be credible.

[19]     Documentary evidence before me indicates that the Black Axe cult tends to be secretive and began as a fraternity-type organization but has evolved into a criminal gang that has a strong presence in Benin City, which is regarded as the gang’s “headquarters.”14 The violence and crimes perpetrated by the Black Axe cult or gang in Nigeria and other countries, including the trans-national scale of this gang’s operations that include human trafficking and smuggling, prostitution and money laundering, is set out in the documentary evidence.15 The trans-national nature and the evolution of the criminal operations of this Black Axe gang is also detailed in recent sources provided by counsel.16 I find this reliable and credible evidence. This evidence indicates that there is a heightened risk posed by the principal claimant’s ex-husband to herself and the other claimants, from KO. This heightened risk comes from his affiliation with the Black Axe gang, and his ability to call on others in the gang to do his bidding. The claimant testified that she believes that he has this power and ability to call his “boys” to harm her and her daughters in Nigeria, just as he has called on them, as well as his own brothers, to harm her mother in Nigeria who was beaten by them in XXXX 2018.

[20]     Therefore, I find that the claims with respect to Nigeria, for the principal claimant and her eldest daughter, the associated claimant, are objectively well-founded. I find that they would face a serious possibility of continued violence at the hands of her former husband/ the associated claimant’s stepfather, and those who are associated with him and act on his behalf, in Nigeria.

Female Genital Mutilation (FGM)

[21]     I also find that the claims of the principal claimant’s other three daughters, the minor claimants, are objectively well-founded with respect to Nigeria. The objective country conditions evidence indicates that FGM remains prevalent in Nigerian society.17 The principal claimant is from the Edo ethnic group and from the area of Benin City in south-central Edo state; Edo state is noted to have a FGM prevalence rate of 35.5% of women ages 15-49 in Nigeria’s National Population Commission’s 2018 Demographic and Health Survey.18 The principal claimant alleges that she underwent FGM as an infant and that this is customary in her ethnic group and family.

[22]     The Edo ethnic group is reported to be one of the groups that continue to perform FGM. The European Asylum Support Office (EASO) Guidance report from 2019 found that the Edo ethnic group was one of the ethnic groups with the highest prevalence rates of FGM in Nigeria, between 69 to 77 percent of women and girls having had FGM performed.19 The documentary evidence also notes that some rituals and specific customs are family, village or community­ specific and therefore generalizations concerning the specific aspects of such customs and traditions are difficult to make.20

[23]     She also alleges that her family members had FGM performed on her eldest daughter, the associated claimant, when she was 4 years old. She and her daughter were visiting Nigeria and the principal claimant had left her alone with her family. This was done without the principal claimant’s consent, and she alleges that since that time she has been scared to leave her other daughters, the minor claimants, alone with her family in Nigeria for any reason. The principal claimant testified that she believes an elder sister, XXXX, was responsible for subjecting the associated claimant to FGM, but she is not sure to what degree her mother and other eider sisters who remain in Nigeria (the claimant has five eider sisters residing in Nigeria21) were involved in this. She testified that her mother and her sisters are supportive of FGM, it has been a tradition in her family for herself and her sisters to have it done, and that they believe that the minor claimants should be subjected to FGM.

[24]     She alleges a fear for the three minor claimants in Nigeria of being subjected to FGM against her wishes and that this is a serious infringement on their bodily security as this is not something she had wanted for her eldest daughter, given the health and other risks and implications of this mutilation. The principal claimant alleges that she is fearful that members of her family, particularly her eider sisters in Nigeria, would take her daughters and have this done to them without her consent as their parent. The claimants provided medical documentation, namely confirmation from a registered nurse at the XXXX XXXX XXXX XXXX XXXX XXXX, who examined the associated claimant and confirmed she had undergone FGM.22 Also, the associated claimant testified credibly and briefly about the fact that she had had this done to her body and had experienced health problems associated with it.

[25]     The documentary evidence about FGM in Nigeria describes that the practice remains rooted in discredited and gender discriminatory customary beliefs, for example that the cutting of the genitals of girls and women will stop them from “promiscuous” behaviour, including being unfaithful to their husbands, and that uncut girls and women are somehow “unclean”.23 In communities and families where FGM is prevalent, the practice is closely tied to concepts of family honour and girls’ marriageability. Sources note that girls “may be ostracized, shunned or assaulted by their family or community if they have not undergone FGM” and could face stigma and social exclusion if they do not undergo FGM.24

[26]     The NDP notes sources that indicate that the final decision to subject a girl to FGM is “most often” up to the parents but that there is “considerable variation both individually and among different ethnic groups.”25 Amongst family and ethnic groups that have girls and women undergo FGM, there is often societal and economic pressure put on parents and the threat of social exclusion or alienation from their families or local communities, to induce them to have FGM performed on their daughters.26 FGM is considered a “family issue” and parents who refuse to have their girls undergo FGM when other family elders expect it to be done, are those who are “well off’27 [financially] and girls who do not have it done when their family or group expect it, can be “ostracized, shunned or assaulted by their family or community” if they have not undergone FGM.28

[27]     The 2021 Response to Information Request (RIR) references the 2019 EASO report that notes a “few cases of relatives disregarding the parents’ decision and subjecting the girl to FGM/C [have been] reported, although it is considered to be very unusual.”29 Other sources in this 2021 RIR however note that is not unusual for relatives to take a girl to have her cut, amongst groups that continue to practice FGM, and it is particularly elder female members of the family who ensure that FGM is performed on a young girl, even when a parent is opposed to this practice:

…older [family members] such as grandmothers are keepers of these practice[s] and ensure that new girls in the family are cut”; even if the mother does not want her daughter to undergo FGM/C, she is “almost helpless” to refuse and FGM/C “will most likely” be performed if older family members “support the practice” (Research Analyst 9 July 2021). The Executive Director of SDI noted that the grandmother will travel to the girl’s home to ensure FGM/C is performed (SDI 18 Oct. 2021). According to the Executive Director of Value Female Network,

grandparents will do everything to make sure their granddaughter is cut. They do not want traditions to end. They will travel from a very far community, pay for accommodation, pay for everything. They will go the extra mile. They will ensure the girl is cut. They will keep it in their mind for years and wait until they can do it. (Executive Director of Value Female Network 7 Oct. 2021)

According to the Program Officer, if a mother refuses FGM/C for her daughter, the child can be taken by force by the woman’s family (Program Officer 1 July 2021).30

[28]     I therefore find that the principal claimant’s fear for the minor claimants in Nigeria is objectively well-founded. I find that the minor claimants would face a serious possibility of persecution on account of their gender, namely FGM, and being subjected to this at the hands of older relatives, namely their older aunts (the principal claimant’s older sisters), as was experienced by the associated claimant, their own sister, when she was a young girl at the hands of members of the principal claimant’s family when she and the principal claimant visited Nigeria.

State protection

Italy

[29]     For the reasons that follow, I find that the claimants have rebutted the presumption of state protection in Italy. I find that the claimants have presented clear and convincing evidence that given their particular circumstances, adequate state protection would not be available to them in Italy. This includes the principal claimant’s own previous experiences in attempting to obtain protection from the state, as well as the objective documentary evidence before me with respect to serious gaps in the implementation of Italy’s domestic violence laws, evidence of the inconsistent and arbitrary implementation of Italy’ s domestic violence laws, partially caused by continuing societal attitudes rooted in discredited myths and stereotypes about sexual assaults and violence against women, and documentary evidence about widespread anti-Black racism in the country.

The principal claimant ‘s own experiences in trying to obtain state protection

[30]     The principal claimant testified about her experiences in seeking protection from the Italian police due to KO’s domestic violence. Prior to 2015, she called the police “more than four or five times”. She testified that each time she called them, the police came but then just gave KO advice or a warning, saying things like “if you do that next time, we will have to arrest you”, “you have to stop beating her”, “take it easy, don’t beat her, she’s pregnant” and then would leave, without investigation or charging her ex-husband. She recalled the police’s visits as brief­ only a matter of minutes, and she remembered one time she called the police, and they did not come at all. She also testified that on one of these occasions she had been clearly injured with blood coming from her mouth and nose, and still the police did not intervene in a serious or effective manner. She testified that she believed that the way police treated her in this manner, in not offering her meaningful protection and viewing what she was going through as something that was “normal” amongst Nigerian men and women, was impacted by her race, as a Black woman of Nigerian descent. She described that there was a great deal of racism in Italy towards Black persons like herself, and that she had heard of such similar ineffective and racist experiences from another Black female friend in Italy who had previously contacted the police for protection from domestic violence.

[31]     The principal claimant described feeling further discouraged by the police response after the October 2015 assault against her when the police did charge KO and took him in for questioning, holding him for a few hours. She testified that she believes the police did something on this occasion because it was one of the minor claimants, XXXX who called them for help and also because a medical examination and MRI confirmed that had received a XXXX XXXX XXXX. The police released KO while this assault charge was pending, and the police knew he was returning to reside with her and the other claimants. She testified that the police told her that since he was the only financial provider for the family, he was being released. The principal claimant described in her testimony that the police did not offer her any referrals or assistance in contacting a women’s shelter or any other kind of support, despite her request about whether these options were available for her. They also did not offer that any kind of protection or barring order (from him returning to the family residence) was an option for her.

[32]     With this release arrangement, the principal claimant testified that the police called her each day for about one month to check on her to see if she was being beaten by KO. The principal claimant testified that KO noticed when the police stopped calling, and his violence against her resumed when the calls stopped. She testified that KO understood how ineffective the police were and was far from deterred and in fact felt emboldened by his ability to continue to harm her without any real repercussions. He was dismissive about the police response, saying to her: “They gave me a paper and that is it- they didn’t hold me; this is all they can do.” She testified to learning at one point about KO’s past criminal record in a different district for beating his first wife, and in 2015 when she was questioned by police, it was clear to her that the police knew about KO’s violent criminal record as well, yet this criminal history did not change the police’s response to releasing him to reside with the claimants while the 2015 charges were pending. She testified as well that KO seemed to start exhibiting a particular anger towards the minor claimant, XXXX for her role in calling the police, and the principal claimant testified that she was frightened of him harming her, as well as her other daughters, the other claimants.

[33]     The corroborating documents provided by the claimants from the Italian court and public prosecutor’s office indicate that KO weas sentenced to a XXXX XXXX XXXX            imprisonment for assaulting the principal claimant,31 and also that in consideration of a previous offence for domestic violence against his first wife, a one-year, ten-month sentence was also being considered as a sentence.32 The sentencing document from the public prosecutor’ s office from XXXX XXXX 2018 indicates that enforcement of the sentence could be stayed while the offender applied for certain “alternative measures to detention” such as “home detention”.33

[34]     The principal claimant testified that KO told her that his lawyer was working towards him getting a sentence of house arrest, so that he would not have to serve time in prison. She testified that KO’s lawyer, the police, and then a social worker asked for her consent to this house arrest, and that she was never asked this question privately on her own, when KO was not there with her. She testified to feeling terrified and helpless, as KO was threatening her that he would kill her if she did not agree to the house arrest. Within this context, the principal claimant indicated that she signed some a letter with KO’s lawyer, indicating that she had forgiven him, and that she agreed to the house arrest. The principal claimant described that the idea of KO having to be home with her and the minor claimants scared her deeply, as did the expectation that she was to inform the police if KO left the home for an unauthorized purpose. The principal claimant testified that she feared that reporting on him would have put her and the minor claimants at increased risk of harm at his hands. She believed that he would also likely take out his stress through violence on all of them while they lived together in this house arrest situation. In her BOC narrative she stated, “I was his victim and the Italian government wanted me to be his jailer.”34

[35]     The principal claimant also provided corroborating documents about KO’s sentencing hearing that took place on July 18, 2018.35 She testified that she did not have a copy of the letter that KO’s lawyer had her sign, as she was scared to ask for this and raise KO’s suspicions and possible retaliatory violence, for thinking that she was going to withdraw her consent. The principal claimant testified that she began to make her plans to flee Italy with the minor claimants when she was informed about this sentencing hearing and after KO and his lawyer had asked her to sign her consent to the house arrest proposal.

[36]     The principal claimant testified that to the best of her knowledge KO’s house arrest is now completed. She heard from mutual acquaintances in Nigeria that KO had travelled to Nigeria in around XXXX to XXXX of 2021. She testified that her sister who resides in Italy informed her that KO was previously seen in the community in XXXX, Italy at parties during the time of him sentence, not apparently following the conditions of his house arrest, but the police did not find out about this. She testified that her sister went to her home after she came to Canada to try and get some of the claimants’ belongings, and that KO did not allow her to enter the apartment, saying in an accusatory way to her sister, that the principal claimant had “caused” his house arrest.

[37]     She also testified that she believes that KO continues to live in XXXX, Italy, as her sister told her that she saw KO at a bus stop in XXXX a few months ago. The principal claimant also testified that to her knowledge, while KO’s criminal convictions may have caused him problems in obtaining Italian citizenship, he continues to have permanent residence in Italy, giving him the ability to remain living and working in that country.

Racism in society and from state authorities in Italy

[38]     I find that the principal claimant’s ability to access adequate state protection in Italy is impacted by the intersecting, immutable characteristics of her race and gender. She is an Italian citizen who is also a Black woman of Nigerian descent. The documentary evidence indicates that racism remains a serious problem in Italy, with very real consequences for visible minorities and those of African descent, specifically. In recent years, sources such as the Office of the United Nations High Commissioner for Human Rights, in its 2019 Report entitled, Mission to Italy on Racial Discrimination, notes serious concerns that Italy “is experiencing an increase of intolerance, racial and religious hatred, and xenophobia, which in some cases is allowed or even encouraged by political leaders and members of Government.”36 This report also addresses serious shortcomings in Italian police accountability and reporting of racially biased statements and actions of state law enforcement related to migrants and other persons of colour.37

[39]     Based on the evidence before me, discrimination based on race and racially-based incitements to violence are increasing and remain a widespread problem in Italy.38 Sources also report that Italian state officials, elected and those running for office, are implicated in fueling anti-migrant and racist views, and that in addition to increasing acts of racist violence, systemic racism exists in Italy towards those viewed as immigrants and/or persons of colour.39 This includes attitudes, perceptions and actions of Italians that accept and promote racist policies and outwardly racist statements and treatment of persons of colour40, with one recent study noting that more than half of Italians surveyed responded that racist acts were either always or sometimes “justifiable”.41

[40]     A 2016 report from the United Human Rights Council, Working Group of Experts on People of African Descent- Mission to Italy, found that despite some efforts of the Italian state, “racial discrimination, Afrophobia and racism persists and people of African descent continue to be the least integrated, most marginalized victims of racial profiling.”42 The authors of this report further found that written legislation and policy measures to combat racial discrimination were not being adequately implemented by the state of Italy.43 Further in this report it is noted: “Afrophobia and racial discrimination are manifest in the lack of protection afforded to people of African descent, a vulnerable group; in the difficulty that people of African descent have in gaining access to justice; and in the failure to prosecute and provide reparation and remedy.”44 This report also notes with concern the frequent racist discourse in Italy’s political system, targeting public figures and politicians of African descent, as well as the immunity that has shielded parliamentarians who make racist remarks.45 The Working Group further reported that: “[t]oo often immunity and impunity for racism creates an enabling environment for racist abuse to be perpetrated at all levels of society, even if some ad hoc punitive measures have been adopted.”46

[41]     I find therefore that the objective country conditions evidence is consistent with the principal claimant’s experiences of racism in Italy, in her encounters with police and in other aspects of her life there as well. I find that the continued systemic nature of racism in Italy impacts and intersects with the principal claimant’s lived experiences as a woman who could not attain adequate state protection in Italy from her abusive husband. I find that as an Italian citizen, she is also a Black woman of Nigerian descent, and based on her own experiences, she did not receive adequate state protection in the past. Based on her personal circumstances that include the immutable characteristics of her race and gender, as well as the country conditions evidence before me, I find that adequate state protection would also not be forthcoming to her in the future in Italy.

States Response to Domestic Violence in Italy

[42]     I note that Italy is making many efforts to address gender-based violence. Domestic violence is criminalized in Italy, and perpetrators are prosecuted. Italy is a sophisticated liberal democracy. Rebutting the presumption of state protection is a heavy burden. Italy ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, (CETS No. 210), known as the “Istanbul Convention” in 2013.47 Thereafter, Italy is noted by the Council of Europe’s Group of Experts on Combatting Violence against Women and Domestic Violence (GREVIO), an independent group that is responsible for monitoring the implementation of the Istanbul Convention, to have has taken a “range of measures to implement the Istanbul Convention”, including legislative reforms and an extensive set of rules and mechanisms aimed at concrete actions to stop violence against women.48 Highlighted in the GREVIO 2020 Report is Italy’s legislation that has expanded the law on criminal stalking and increased and expanded legislative sanctions for crimes of gender-based violence, and increased national funding for specialist support and protective services to assist women and children fleeing domestic violence.49

[43]     However, despite these efforts, I find that the country conditions evidence indicates that there are some critical shortcomings and problems in the implementation of the domestic violence legislative framework in Italy, including serious gaps with respect to urgent protection order mechanisms. I find these serious deficits in the implementation of Italy’s domestic violence laws are compounded with the impact of racism for these particular claimants. Such serious shortcomings in the state response were illustrated in the claimants’ own attempts to obtain actual protection from domestic violence from the Italian state.

[44]     State protection need not be perfect, and I acknowledge that the Italian state did make an attempt to protect the claimants on one occasion through the prosecution of KO. However, based on the claimants’ particular circumstances and evidence before me, I find that attempt was far from adequate. The claimants were put at increased risk of physical harm through the manner in which the Italian state prosecuted these charges, including the lack of effective and timely protective or restraining orders in Italy for victims of domestic violence while charges are pending, such that KO returned to live with and physically abuse the claimants for over two and a half years while his charges were pending; the state also did not consult with the principal claimant privately about acquiring her consent for KO to serve his sentence under house arrest with her and the other claimants. I find that the way in which state officials acted with respect to this final issue demonstrates a clear misunderstanding or disregard for the imbalance of power in domestic violence situations and the real-world reality faced by victims: asking a woman in the presence of her abusive spouse to agree to a detention arrangement that would have the real possibility of increasing her and her children’s risk of harm is essentially asking her to make this choice under duress without a true opportunity to voice her concerns with such an arrangement: this was not a meaningful or voluntary “choice” for the principal claimant.

[45]     The evidence before me points to a serious problem of gender-based violence in the country-the United State Department of State Report for Human Rights Practices for 2020 in Italy notes that 535 women were killed by domestic partners in the first six months of 2020 alone.50 Another source from 2018 noted that approximately 150 women are killed by abusive partners each year, and that in one-third of fatal cases, the victims had already complained to the police.51 Advocates for women and critics of the Italian system have noted that tougher legislation is not necessarily the solution; existing laws are adequate, but arbitrarily applied.52 This inconsistency in the domestic violence law’s application is fueled by patriarchal socio­ cultural attitudes in Italy that justify or excuse violence against women, police officers not believing women, those in the investigatory process (police officers, social workers and judges) being unprepared, and a very long judicial process that can take several years to come to a final decision.53 I find that the objective country conditions evidence before me is consistent with the principal claimant’s described experiences of her many calls to the police over the years prior to KO being charged in 2015, in that these interactions with the police did not result in anything more than her abuser being told to treat her better.

[46]     Moreover, I find that there are critical problems with the state’s mechanisms with respect to delays and the inconsistent issuance of protection or barring orders for alleged perpetrators of domestic violence to vacate a shared residence when charges are laid. Such orders are noted to be ineffective by GREVIO in their January 2020 Report entitled, GREVIO Baseline Evaluation Report Italy (“GREVIO report”).54 Sources note that the Italian law does not automatically require that the alleged abuser leave the home when charged with abuse.55 The GREVIO report notes serious shortcomings in a domestic violence victim’s ability to obtain meaningful restraining orders, citing research that Italian authorities do not have measures in place for an immediate response if a victim calls in to report a violation of a protection order. GREVIO stresses that “an instant response to these calls is pivotal in light of the well-documented fact that a violation of a protective measure is a strong indicator of a potentially high-risk situation. [emphasis added]”56 The report notes the concern that criminal courts did not collect data on the issuance of restraining and protection orders (termed “precautionary measures”) and that this impacted the ability of GREVIO to report on the effectiveness of such measures to protect women. Women’s organizations and legal practitioners shared with GREVIO that there were problems for women in obtaining such measures in the first place, noting instances of victims’ requests for such measures remaining “unheeded and the risk they are exposed to is underestimated, leading to courts’ reluctance to issue precautionary measures (particularly where there is no physical violence), delays in their issuance, negligence in their enforcement and minimization of the risks signaled by a breach of such measures”.57

[47]     As further noted in the GREVIO report, a protection order from a criminal court in Italy must be requested by a prosecutor, and as set out above, even if one is in place, there is no process in place of immediate action in case of a reported breach by an abuser. With respect to civilly obtained protection orders, GREVIO notes that the state is also not keeping data with respect to these orders, which represents an obstacle in effectively monitoring their use. Women’s organizations, however, have indicated that these types of civil protection orders can take “several months” to be granted and that there exists “uneven and restrictive court practices in assessing the conditions under which protection orders apply and can be extended”.58 GREVIO notes with concern that this undermines women’s protection and that some civil courts take the approach of seeking to reach a compromise between the victim and the perpetrator rather than taking a position on the request for a protection order, an approach which, according to GREVIO, “would reflect a severe misunderstanding of the dynamics of violence against women.”59 The impact of these problems on the protection of women facing domestic violence in Italy is described in this report:

the lack of an automatic reaction on the part of statutory agencies to violations of protection orders sends the message that infringements are tolerated. Once the offender realises he can get away with his misbehaviour, the deterrent potential of protection orders is significantly diminished. This can not only provoke future violations, but it can also seriously discourage the victim, who should not be left alone in having to ensure that protection orders are enforced.60

[48]     The GREVIO report also refers to a 2018 Italian government report, noting the concern about a lack of consistency with the police response to domestic violence in Italy, including that the police arbitrarily conducted risk assessments in domestic violence situations, noting that in “many cases of gender-based violence, risk assessments are totally omitted, while in others, police officials assess risks based on their experience and intuitive skills instead of structured and standardized parameters.”61 The GREVIO report also reflects findings of a 2018 Italian Judiciary report that “less than 20% of prosecutorial offices and only 8% of adjudicating offices had adopted risk-assessment criteria to enable law enforcement agencies, prosecuting authorities and criminal or civil courts to prevent reoffending and the escalation of violence.”62 GREVIO notes that a “serious underestimation of the risk” in situations of domestic violence was at the heart of the European Court of Human Rights’ judgment in the Talpis v. Italy decision.63 This decision noted several serious shortcomings in the Italian state response to responding to domestic violence, including the inadequate assessment of the victim’s risk, the delayed response to the victim, and that no emergency protection order was issued.64

[49]     The police and state’s dismissive response to violence against women was also illustrated in a recent Toronto Star article from January 2022 describing a Canadian woman in Italy who was seriously beaten in public by a taxi driver. The initial response and actions of the police and hospital staff was to not take the matter seriously. She was visibly injured and there were witnesses to the attack. The police took the man’s statement, and then allowed him to drive off in his taxi. The victim describes the indifference of hospital staff towards her, telling her she was not facing an emergency because she was hit by a man, and that because they were dealing with COVID, they had “bigger issues than a girl crying over a man who hit her.” After a video of this assault was posted on Twitter, there was a large outpouring of support for the woman and state officials have publicly condemned the assault.65

[50]     Also noted in the sources before me is the continued acceptance of “hurt feelings” defenses by the courts in domestic violence cases in Italy, including in cases of serious bodily injury and femicide, resulting in reduced sentences because the crime is viewed as somewhat understandable due to emotions or passion taking over the aggressor in situations where a victim is viewed as having brought on such violence through her own behaviour.66 While it is laudable that the prime minister in 2019 publicly criticized such reasoning by the courts67, I find that the fact that this kind of reasoning continues to be used by the judiciary on some occasions in recent years, is further indication of the inconsistent and what has been described in other sources as the “arbitrary” implementation of the domestic violence laws in Italy by police officers, as well as the judiciary.

[51]     For example, another source from 2018 speaks of two foreign students who accused police officers of rape were themselves accused of being drunk and being dressed inappropriately.68 A further 2018 article describes a woman’s account of a police officer asking her whether she wasn’t “just having an argument” with her husband, when she had called the police for protection from her husband’s violence.69 An appeal court’s 2017 ruling, condemned by protesters and which was later overturned by Italy’s highest court, was that a woman’s story of being raped was not credible because she looked “too masculine” and it was improbable that the accused men would have wanted to rape her.70

[52]     I find that such discriminatory and discredited understandings about gender-based violence as displayed by the police and courts in Italy reflect the information in other sources about socio-cultural attitudes in Italy that show a level of acceptance of certain levels of violence against women in intimate partner relationships as normal and assumptions about sexual violence and intimate relationships that are rooted in gender discrimination and myths and stereotypes about gender-based violence: a 2021 Italian survey presented to the Italian senate indicated that 40 percent of men and 20 percent of women did not consider it violence to “slap a partner in the face if she has flirted with another man”, and that four out of ten men and 3 out of 10 women did not consider it violence to “force a partner to have sexual intercourse if she does not feel like it”.71

[53]     I also note that the sources indicate that there is a serious shortage of women’s shelters and that this is viewed as being a barrier to women leaving violent partners. One women’s advocate in 2018 noted that Italy’s 100 shelters was woefully inadequate to serve Italy’s population of 60 million. The advocate indicated that six times this number was needed.72 Italy is reported to have provided a good deal of funding in recent years for shelters and “anti-violence” centres for women, however, the exact number of shelters as set out in the GREVIO report is noted to be “uncertain” with the government claiming that there are 228 shelters and women’s organizations estimating a considerably lower number of 79 shelters.73 This lack of availability of women’s shelters, compounded with the principal claimant’s described first-hand experiences in her testimony of racism in the past in searching for housing on her own as a Black woman, heightens the claimants’ risk in this claim. This factor is a further way which the state’ s response to her as a Black Italian female citizen requiring protection from domestic violence is inadequate.

[54]     Counsel submitted a great deal of country conditions evidence that points to serious gaps and ineffective implementation of Italy’s laws and policies aimed at protecting women from violence. I have set out some of it in the above paragraphs. I accept that these laws may be adequate for some; and that the country conditions evidence shows that the state has made serious efforts to combat domestic violence in recent years. However, the test that I must consider is whether there is clear and convincing evidence of adequate state protection for these particular claimants. I have therefore considered whether state protection in Italy would be operationally effective for these particular claimants, taking into account their personal circumstances, and this includes the responsiveness of the state and their treatment by Italian authorities as Black women and girls. I find that for these claimants, in light of what the principal claimant experienced in her attempts to obtain state protection in Italy, and in light of the intersectional factor of race, as Black Italian citizens of Nigerian descent, that state protection would not be adequate. The claimants have therefore rebutted the presumption of state protection.

Nigeria

[55]     I also find that the claimants have rebutted the presumption of state protection in Nigeria. I find that there is clear and convincing evidence that adequate state protection would not be available to them in Nigeria. The claimants fear violence from KO himself, his family and his associates within the Black Axe gang. The principal claimant provided evidence that her mother had been physically assaulted and threatened by KO’s brother and KO’s associates in XXXX

2018 who were demanding that her mother contact the principal claimant, and that KO’s family continued to contact her family in Nigeria after this point. The principal claimant also fears that members in her family, in particular her elder sisters, will forcibly take the three minor claimants to have them undergo FGM without her consent.

[56]     Documentary evidence before me indicates that women in Nigeria rarely tum to the police for assistance in domestic violence matters, and those who do are often turned away by officers who consider it a private or family issue.74 The United States Department of State Report on Human Rights Practices in Nigeria for 2020 states that, “[p]olice often refused to intervene in domestic disputes or blamed the victim for provoking the abuse. In rural areas courts and police were reluctant to intervene to protect women who formally accused their husbands of abuse if the level of alleged abuse did not exceed local customary norms.”75 A number of sources indicate that both implementation and enforcement of laws prohibiting violence against women are lacking throughout Nigeria.76

[57]     Sources indicate that while the level of response depends on the victim’s level of education and the individual police officer taking the report, complainants are sometimes blamed for provoking the abuse, or otherwise mistreated during the intake process. According to other sources, if both parties are present, the male is believed over the female making the complaint.77

[58]     Nigeria’s legal system is a mix of common law, sharia law, and customary law. Sources indicate that there is no comprehensive national law applied throughout the country to combat domestic violence or violence against women.78 Certain sections of Nigerian law also permit men to use “corrective” force against their partners.79 The 2015 Violence Against Persons (Prohibition) Act (VAPP) was a positive development, prohibiting gender-based violence, including domestic violence and harmful traditional practices such as FGM. However, sources report that as a federal law, the VAPP is only effective in the Federal Capital Territory (FCT) of Abuja; only the high court of the FCT has jurisdiction to hear and grant applications, including restraining orders.80 While some states have their own domestic violence and/or FGM legislation, only a third of states have ratified the VAPP.81

[59]     With respect to FGM, while the VAPP prohibits FGM, the documentary evidence suggests that this prohibition is rarely, if ever, enforced in Nigeria.82 Even with the passing of these laws, FGM in Nigeria remains “widespread, with low rates of reporting and prosecution”83 Sources note that the Nigeria police are reluctant to provide protection to persons who refuse to undergo family traditional practices, including FGM. Reasons for this lack of enforcement and reluctance from the police include cultural beliefs held by police officers themselves, in that the police have difficulty recognizing the criminal nature of ritual practices, respect for these traditions and customs by the police and the discriminatory treatment and attitude towards women in Nigerian society.84

[60]     Other evidence notes that it “remains extremely difficult for women and girls to obtain protection from FGM” despite the enactment of anti-FGM laws in the FCT and anti-FGM legislation in many states, as community support for the practice of FGM and the traditional attitude of the police help to support such practices.85 The report by the British non­ governmental organization, 28 Too Many, of June 2018 confirms that “knowledge of the [FGM] law and enforcement is generally weak across Nigeria” and that there have been no reported arrests, cases, prosecutions or convictions for FGM in Nigeria.86

[61]     Corruption in the Nigerian government is also reported to be pervasive and widespread, affecting all levels of government including the security forces, with government employees frequently engaging in corrupt practices with impunity.87 Sources note that high levels of corruption, as well as a lack of sufficient funding and training and a culture of impunity and weak oversight, have seriously undermined the effectiveness of the police in responding to violent crimes, including violence against women from intimate partners or former intimate partners.88 A report from the Africa Centre for Strategic Studies describes that Nigerian police commonly demanded bribes in everyday encounters with citizens, and that norms of professionalism and ethics are further weakened in the police through politicized, non-merit based appointments.89

[62]     Therefore, based on the documentary evidence before me, I do not find that claimants would have adequate state protection in Nigeria from either further violence from KO, his family or associates, or from the principal claimant’s family abducting the minor claimants to subject them to FGM, against the principal claimant’s wishes. While the introduction of legislation such as the VAPP that addresses gender-based violence is a positive step by the Nigerian state, the existence of legislation alone is not enough to support a finding of state protection. I find that the that the implementation of the state’s laws with respect to gender-based violence in Nigeria is ineffective, and that therefore the claimants would not have adequate state protection in Nigeria.

Internal Flight Alternative

Motivation of KO ta locate the claimants in Italy and Nigeria

[63]     For the reasons that follow, I find that the claimants do not have a viable internal flight alternative (IFA) in either Italy or Nigeria. KO is a citizen of Nigeria and he has status akin to a permanent resident in Italy. I find that KO has a continuing motivation to locate the claimants if they attempt to relocate in either country, and that based on his past violence towards the claimants, I find that he poses a serious risk to their safety. He is the biological father of the two youngest minor claimants, ages 5 and 9, and the principal claimant previously resided with him as his common-law spouse for seven years. KO’s motivation is also demonstrated through his continued, attempted contacts with the principal claimant90 and with at least one minor claimant since they have been in Canada via social media, as well as the claimants’ testimony and evidence that KO has contacted mutual acquaintances in Nigeria in the recent past and that such contact indicated that KO remained angry at the principal claimant, blamed her for his conviction and arrest in Italy and wanted to find her whereabouts.91

[64]     The principal claimant also testified that KO was hostile and blamed her for his conviction and house arrest when he had an encounter with her sister in Italy. Moreover, since she left Italy, KO sent his brother and men to threaten the principal claimant’s mother in Nigeria to discover the claimants’ contact information, and her mother was physically assaulted.

Italy

Ability of KO to find the claimants in other locations in Italy

[65]     With respect to Italy, the cities of Rome and Naples were raised as possible IFA locations for these claimants; Rome is about 600 km south and Naples is about 800 km south of the city of XXXX, Italy in the northwest of the country where the claimants formerly lived, and where they believe KO to be living at this point. I find that the IFA test fails on the first prong of the test, in that the proposed IFA locations will not be safe for the claimants, and that KO would likely be able to find them should they return to Italy and attempt to relocate.

[66]     The principal claimant and the 18-year-old associated claimant testified about the social media use of the associated claimant and the eldest minor claimant who is 16 years old. The principal claimant noted that she was not well versed with technology and social media, and that she knew her daughters used social media, but she did not know a great deal about their presence online. The associated claimant testified about how she and her sister use various social media applications such as Instagram, SnapChat and TikTok to communicate with their friends and that she sometimes posts photographs of herself with friends or out doing activities. She testified that she estimated that her 16-year-old sister uses social media a fair bit, and that she and her sister do not tell their mother, the principal claimant, about their online posts and social media use. I find that the testimony of principal and associated claimant is credible about the 18- and 16-year- old’s social media use: it did not appear to exaggerate their use of social media, and details came naturally and spontaneously to the claimants.

[67]     While the social media use of teenagers communicating online for social purposes may not involve political opinion or expression which is necessarily core to one’s human rights, I note that it has become a standard and prevalent way of obtaining information, socializing and starting and maintaining friendships and community networks for young people in society today. Generally, I find that requiring adults, and even young adults, to be cautious with social media use and to do so with heightened precautions and privacy settings, so that an agent of persecution would not be able to locate their whereabouts, would be a reasonable expectation with respect to IFA. However, in the particular circumstances of this claim, I note that with two teenagers ages 16 and 18, and a third daughter about to turn 10 years of age, and with the evidence that KO has already connected with his 16-year-old daughter through social media online for a period of time without the principal claimant knowing of it, that the circumstances before me in this claim are such that the principal claimant would not be able to monitor and control all the content that her daughters (the associated claimant, the 16- year-old claimant, and in the near future one of the other minor claimants) post online or in which they are “tagged” by others online.

[68]     I find that a consideration of reasonable precautions must be assessed in light of the claimants’ ages and maturity and the particular factual circumstances in this claim which include that the agent of persecution had contact with one of the minor claimants via social media without the principal claimant’s knowledge. Upon learning of that contact, the principal claimant had the minor claimant block KO, and that KO has changed his username on at least one occasion and attempted to again contact the claimants. For these teenage claimants, and in these particular circumstances, I find that the associated claimant’s and the minor claimants’ social media use is something that the principal claimant will not be able to fully control and that such social media use is one way in which their location could become known to KO. I also find, on a balance of probabilities, that KO has shown that he has the motivation and ability to reach the claimants online via social media and that in the future, he could find the claimants’ whereabouts from online content that is from or connected to the social media profiles and accounts of the associated claimant and the minor claimants.

[69]     Next, I have accepted that the principal claimant has credibly established, on balance of probabilities, her allegation that KO is involved with the Nigerian criminal gang, the Black Axe. The principal claimant acknowledged that KO never admitted his involvement in this group to her, but that she believed him to be involved in this group for several reasons, including that he would boast that he had “boys” he could use to kill anyone in Nigeria, that on one occasion she knew of he had paid someone to bring a car into Nigeria who then demanded more money and he sent his “boys” to Nigeria to deal with the matter. She also testified that KO had told her in Italy if anyone ever offended her to let him know, as he would send his “boys” to their house. The principal claimant testified that KO seemed to have many Nigerian friends and contacts in many different places in Italy and that he travelled frequently to see them.

[70]     I find that the claimants have also submitted reliable country conditions evidence as to the Black Axe criminal group’s presence and reach in Italy. Documentary sources describe that the Black Axe criminal group as one that employs brutal violence and has become trans-national, involved in crimes such as prostitution, international human trafficking and money laundering.92 Sources note that the Black Axe criminal group has a strong presence in Italy93 and is regarded as “quite powerful”94, with “cells throughout Italy”95 and to be operating in “many regions of the country”.96 Nigerian criminal networks in Italy are reported to have as many as 1,500 members across the country, and in some locations, they pay a cut to the Italian mafia to allow them to do business, and in other locations they encroach on Italian mafia territory and business.97 Italian police have attempted to curb the criminal activities of the Black Axe organization with arrests in 2016 of between 15-18 Black Axe leaders, and again in 2021, arresting 30 members.98

[71]     I have found the principal claimant credible in her testimony about why she believes KO is a part of, or affiliated with, this group. She testified that KO appeared to have many friends and connections throughout Italy and his friends were mainly Nigerian. She testified about how he would boast that he had “boys” who could take care of anyone who had offended her and that she saw that he would regularly speak with people she did not herself know from Rome, Turin, and Milan. She testified he used to visit Rome about twice a year and for Naples, he travelled there about once a year, but not always every year.

[72]     I find that KO’s affiliation with the Black Axe group means that he poses a heightened risk to the claimants. This heightened risk comes from his ability to call on others in the gang to do his bidding, including in searching for the claimants and reporting back if they are located in another place in Italy. The claimant testified that she believes that he has this power and ability to call his “boys” to locate her, and cause her and her daughters harm, just as he has called on such thugs to harm her mother in Nigeria in XXXX 2018. I also note the principal claimant’s testimony that her sister in XXXX, Italy saw KO at a bus stop there a few months ago, and he attempted to speak with her sister, but she was able to avoid him. I find on a balance of probabilities that KO continues to reside in XXXX Italy, and that his house arrest sentence is now completed.

[73]     Therefore, based on their particular circumstances, I find that the claimants would not be able to safely relocate within Italy and the IFA test fails on the first prong. I find that it is more likely than not that if the claimants were to move at a new location in Rome or Naples, it would become known to KO, through a combination of factors such as the associated claimant and minor claimants’ social media use, and/or through his connections and ability to use other associates of the Black Axe criminal group to locate the claimants. I find that the serious shortcomings with respect to the Italian state’s response to violence against women and domestic violence specifically, compounded by systemic issues of racism, as set out above, mean that the claimants would not have adequate state protection in the IFA locations if they were located by KO in these locations, or anywhere else in Italy.

Nigeria

[74]     I also find that the claimants do not have a viable IFA in Nigeria. I proposed the large urban centre of Lagos, as a possible IFA location for the claimants. I have set out above my reasons for finding that KO continues to have a strong motivation to locate the claimants, including in Nigeria. The principal claimant testified about KO’s ability to locate her in Lagos, stating that his brother who works as a driver for a rich and well-known traditional chief of Edo state, travels throughout Nigeria with this man and could use such connections to find her. She testified that through either his brother or through his connections with the Black Axe gang, he would be able to learn of their whereabouts in Lagos. She also testified that she and KO had many mutual friends and friends of each of their families who are in Lagos, and that KO knows her eider sister’s address in Lagos having been there many times before. She believes that her sister would resist in telling KO her whereabouts, but that their network of mutual acquaintances would be susceptible to providing information about her whereabouts for payment by KO, who she testified would return to Nigeria and flaunt and spend his Euros.

[75]     The principal claimant acknowledged in testimony that this eider sister in Lagos supports FGM, and that she believes that this sister at least condoned another eider sister who was behind having FGM performed on her eldest daughter, the associated claimant, when they visited Nigeria when the associated claimant was about four years old. Residing with this sister in Lagos would therefore not be something that the principal claimant could do without risking the safety of the minor claimants.

[76]     I have set out, above, my reasons for finding that KO has the continuing motivation to locate and harm the claimants. I have found the principal claimant credible in her testimony about how acquaintances in Nigeria have told her that KO has recently been there, angrily asking about her. I find on a balance of probabilities that he has completed his sentence from 2018 for assaulting the principal claimant and that he is someone with the ability and desire to return to Nigeria, including that he has the financial resources to do so.

[77]     I find that the claimants’ personal circumstances and the particular background of KO also contribute to his ability to locate the claimants in Lagos, and that the claimants would face a serious possibility of persecution in Lagos, as well as throughout Nigeria. These personal circumstances are relevant to both prongs of the IFA test, and I find that in considering them, the first prong of the test fails. First, I note the possibility about KO being able to determine their location via the associated claimant’s and the minor claimants’ social media use, for the reasons I have already set out above.

[78]     Secondly, the principal claimant is a single mother to four female children ranging in age from 5 years old to 18 years old and she would be returning to a new city where she does not have the amount of familiarity and support network as she did in the area where she grew up and where her mother and other siblings (but for the one eider sister in Lagos and another sister in Italy) live, Benin City in Edo state. She testified that the associated claimant and the minor claimants do not speak any local languages, and that the associated claimant and the next eldest, 16-year-old XXXX, speak English and Italian, whereas the younger two minor claimants now only speak English. The principal claimant testified that the associated claimant and minor claimants will be easily identifiable as people of Nigerian descent who have lived abroad for quite some time, as the girls speak English in a particular way and have a European mentality with respect to things such as a personal safety and everyday understandings of customs. The principal claimant noted that her four daughters have only ever visited Nigeria a handful of times (fewer occasions for the younger minor claimants), and that they grew up as Italian Europeans, and now as Canadians since mid-2018. This makes them very unfamiliar with Nigerian ways of life, and this would make them stand out as foreigners and increase their vulnerability. She also testified that she also is less familiar with the Nigeria of today, having moved to Italy in 1997 to work at the age of 21 and resided there since that time, only returning to Nigeria herself for a few visits over the years, although she is more familiar than her daughters are with the country.

[79]     I find that given these personal characteristics and circumstances, that these particular claimants will likely be more visible amongst neighbours and the community in a new location such as Lagos, and that the principal claimant would likely need to call upon one of their mutual friends for help and support in Lagos if they were to attempt to relocate there. In this situation, I find that KO would likely be able to locate them through his family and network of acquaintances in Nigeria or through his associates with the Black Axe criminal group. Sources describe that the Black Axe criminal group has a presence in Lagos99, with one source noting it has a national reach and that “[i]n each community, these groups have leaders that [are] as ruthless as their coordinators at the state and national levels.”100

[80]     I find that while the situation with respect to state protection for women and girls facing violence from a former intimate partner may be better in Lagos than the rest of the country, since in Lagos some sources note that there are improving attitudes amongst the community in not condoning or accepting domestic violence, and that the police in Lagos were better trained to deal with domestic violence and had a more responsive attitude with a dedicated gender desk to receive domestic violence complaints,101 I find that the bulk of the country conditions evidence for Nigeria indicates that adequate state protection would not be available for the claimants in Lagos. The serious problems with police corruption and ineffectiveness in Nigeria mean that KO could use his financial resources and connections in Nigeria to bribe the police anywhere, including Lagos. I find that the weight of the documentary evidence before me does not support a finding that conditions in Lagos with respect to the treatment of women, and with respect to police effectiveness, are different to the extent that it would render state protection adequate in Lagos, given their personal circumstances, and the particular factors involved in their claim. For these reasons, I find that the claimants do not have a viable IFA in Lagos, or anywhere else in Nigeria.

CONCLUSION

[81]     Based on the above analysis, I determine that the claimants are Convention refugees pursuant to section 96 of IRPA. I therefore accept their claims.

(signed)                  Melinda Gayda                 

                                                                                             April 29, 2022                  

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)

Refugee Protection Division Rules, (“RPD Rules”), SOR/2012-256, Rule 55

3 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(l)(h) of the Immigration and Refugee Protection Act.

4 Exhibit 6, pages 46-52

5 Exhibit 1, Package of information from the CBSA on referral of refugee claim.

6 Exhibit 3, National Documentation Package for Italy (September 29, 2021), Item 2.1, Italy- Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, page 14.

7 Exhibit 7, For Italy’s Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, page 11.

8 Exhibit 7, Ibid, page 11.

9 Exhibit 14, Italy draws up plan to fight violence against women, Wanted in Rome, November 24, 2021, pages 323- 324;- Exhibit 12, Italy Survey reveals shocking attitudes towards violence against women, Wanted in Rome, November 25, 2021, page 303; Domestic violence against women escalating in Italy, independent Australia, June 3, 2021, Francesco Bertolucci, page 308.

10 Exhibit 4, National Documentation Package for Nigeria (November 30, 2021 version) Item 5.3: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019). Immigration and Refugee Board of Canada. 14 November 2019. NGA106360.E.

11 Exhibit 4, Item 2.1, Nigeria: Country Reports on Human Rights Practices for 2020, United States Department of State, 30 March 2021, page 34.

12 Exhibit 4, Item 5.3, pages 5-7.

13 Exhibits 8 and 9, What’s App screenshot of messages and transcribed voicemail from friend in Nigeria; Exhibit 15, transcribed voicemail from other mutual acquaintance in Nigeria.

14 Exhibit 4, Item 7.24: The Black Axe confraternity, also known as the Neo-Black Movement of Africa, including their rituals, oaths of secrecy, and use of symbols or particular signs; whether they use force to recruit individuals (2009-November 2012), Immigration and Refugee Board of Canada, 3 December 2012, NGA104208.E, page 2.

15 Exhibit 7, The Black Axe, Harper’s Magazine, September 1, 2019, pages 59-65; Mississauga man gets 15-year sentence for fraud scheme involving Black Axe organization, The Globe and Mail, October 31, 2019, page 68; Shadowy Black Axe group leaves trail of tattered lives, The Globe and Mail, November 12, 2015, page 69-74; Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018; pages 77-79.

16 Exhibit 12, The ultra-violent cut that became a global mafia, The BBC World Service, December 13, 2021, pages 264-269; Black-Axe: Leaked documents shine spotlight on secretive Nigerian gang, The BBC World Service, December 13, 2021, pages 270-271

17 Exhibit 4, Item 5.39, Update to NGA200625 on prevalence of female genital mutilation/cutting (FGM/C), including ethnic groups in which FGM/C is prevalent; ability of parents to refuse FGM/C for their daughter; consequences for refusal; state protection and support …, Immigration and Refugee Board of Canada, 26 October 2021, NGA200790.E;, Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM), Version 2.0. United Kingdom Home Office, August 2019, sections 4.8.4.

18 Exhibit 3, Item 5.39, pages 4-5.

19 Exhibit 4, Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM), Version

2.0. United Kingdom Home Office, August 2019, sections 4.8.4.

20 Exhibit 4, Item 5.13, RIRNGAJ04392.E, 29 April 2013 and Item 10.8, RIR NGA105659.E, 14 November 2016,

page 2

21 Exhibit 2, BOC Form, Question 5 Family Members.

22 Exhibit 6, page 53.

23 Exhibit 4, Item 5.39, RIR NGA200790.E, October 26, 2021 and Item 5.22, Country Profile: FGM in Nigeria, 28 Too Many, October 2016 [listed as November 2017 in the NDP Index]

24 Exhibit 4, Item 5.39, pages 13-14.

25 Exhibit 4, Item 5.39, RI R NGA200790. E, October 26, 2021, page 8.

26 Exhibit 4, Item 5.39, page 12

27 Exhibit 4, Item 5.39, page 12

28 Exhibit 4, Item 5.39, page 13

29 Exhibit 4, Item 5.39, page 11

30 Exhibit 4, Item 5.39, page 11

31 Exhibit 6, pages 12-17, Judgement of the Italian Court, XXXX 2018; and page 9, Public prosecutor’s documents note the sentence as “XXXX XXXX XXXX” and that the final sentence of judgment was passed on XXXX, 2017. The Judgement in the original Italian notes at page 14 the date of “XXXX 2017”, and “XXXX XXXX XXXX XXXX XXXX XXXX”, the “XXXX XXXX XXXX XXXX XXXX”.

32 Exhibit 6, page 5-11- Italian Public Prosecution documents, Measures for Enforcement of Concurrent Penalties, January 26, 2018

33 Exhibit 6, page 10.

34 Exhibit 2, para. 27.

35 Exhibit 1, Documents provided by principal claimant at the airport to the CBSA.

36 Exhibit 3, NDP for Italy, Item 13.3, Report of mission to Italy on racial discrimination, with a focus on incitement to racial hatred and discrimination, Office of the United Nations High Commissioner for Human Rights, 1 February 2019, page 9 (para 34)

37 Exhibit 3, Ibid, pages 12-14

38 Exhibit 12, Italy: Racist and xenophobic crimes by type 2020, Statista, November 16, 2021, page 307

39 Exhibit 12, Black Italian actress describes racist messages on live TV, ABC News, February 3, 2022, page 299, How Populist Scaremongering Unleashed a Wave of Anti-Black Racism in Italy, Vice, May 29, 2021, pages 311- 312; Exhibit 14, Italy on edge as neo-fascists stir violence, EU Observer, October 15, 2021, pages 392-393; Italian police accused of racism over viral video of arrests in Milan, Euro News, June 30, 2021, pages 396-397, Racial profiling in Italy: A debate not yet begun, Institute of Race Relations, May 19, 2021, pages 398-399; Exhibit 3, Item 2.4, Italy. World Report 2021: Events of 2020, Human Rights Watch, January 2021.

40 Exhibit 14, Verona fans banned for racist chants after appalling banner, Toronto Star, March 15, 2022, page 391,

41 Exhibit 12, More than half of Italians in poll say racist acts are justifiable, The Guardian, November 12, 2019, page 319.

42 Exhibit 3, Item 13.2, Report of the Working Group of Experts on People of African Descent on its mission to Italy, United Nations Human Right Council, 12 August 2016, A/HRC/33/61/Add. l, page 8 (para. 36)

43 Ibid.

44 Ibid., page 10 (para. 50).

45 Ibid., page 8 (para. 39).

46 Ibid.

47 Exhibit 3, Item 5.3: GREV/O Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/lnf (2019)18, page 9.

48 Exhibit 3, Item 5.3, Ibid., page 6; also Exhibit 14, excerpts of same report, pages 332-349; Item 2.1, Italy­ Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, pages 13- 14; Item 5.1, Italy. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, 7 December 2018, pages 4-5

49 Exhibit 3, Item 5.3, GREVIO Baseline Evaluation Report Italy, pages 6, 11-15, 22-25.

50 Exhibit 3, Item 2.1, Italy- Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, page 14.

51 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, pages 11-12.

52 Exhibit 3, Item 5.1, Italy. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, 7 December 2018, page 5.

53 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, pages 11-12.

54 Exhibit 3, Item 5.3: GREVIO Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/Inf(2019)18; also Exhibit 14, excerpts of same report, pages 332-349.

55 Exhibit 7, News Analysis: Italy’s new domestic violence law fills legislative gaps, without cutting problem at its roots, Xinhuanet, July 20, 2019, Alessandra Cardone, page 2; Exhibit 3, Item 5.3, pages 73-75.

56 Exhibit 3, Item 5.3, page 73, para. 235.

57 Exhibit 3, Item 5.3, page 73, para. 235.

58 Exhibit 3, Item 5.3, page 73 para. 237

59 Exhibit 3, Item 5.3, page 73, para. 237.

60 Exhibit 3, Item 5.3, page 73, para. 237.

61 Exhibit 3, Item 5.3, page 71, para. 228.

62 Exhibit 3, Item 5.3, page 71, para. 228.

63 Exhibit 3, Item 5.3, page 71, para. 228.

64 Exhibit 7, Talpis v. Italy 41237114, European Court of Human Rights, Judgment: March 2, 2017, page 16.

65 Exhibit 12, Enduring a brutal assault by a taxi driver, Canadian woman becomes the face of violence against women in Italy, The Toronto Star, January 18, 2022, Rosie DiManno, pages 301-302.

66 Exhibit 7, Stop using “hurt feelings” to justify men who murder women, Italy’s Prime Minister tells judges,

Independent, March 15, 2019, page 3;

67 Exhibit 7, Ibid., page 3.

68 Exhibit 7, Italian women ‘s groups fear law change will hurt domestic violence victims, The Guardian, September 19, 2018, Angela Guiffride, page 10

69 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, page 12.

70 Exhibit 14, Italian protests over men cleared of rape because woman ‘too masculine’, The Guardian, March 11, 2019, Anglea Guiffride, page 352.

71 Exhibit 12, Italy Survey reveals shocking attitudes towards violence against women, Wanted in Rome, November 25, 2021, page 303; Domestic violence against women escalating in Italy, Independent Australia, June 3, 2021, Francesco Bertolucci, page 308.

72 Ibid., page 12

73 Exhibit 3, Item 5.3: GREV/O Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/lnf (2019)18, paras. 145-148.

74 Exhibit 4, Item 5.3, Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019), Immigration and Refugee Board of Canada., 14 November 2019, NGA 106360.E, p. 13.

75 Exhibit 4, Item 2.1 page 34.

76 Exhibit 4, Item 5.3, pages 12-13.

77 Ibid., pages 14-15.

78 Ibid., p. 8.

79 Ibid., pages 7-8.

80 Ibid., p. 9.

81 Exhibit 4, Item 5.22, Country Profile: FGM in Nigeria, 28 Too Many, October 2016 [listed as November 2017 in the NDP Index], pages 4, 8 and Appendix II; Item 5.3, pp. 11-12.

82 Exhibit 4, Item 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018; Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM)- Version 2.0, United Kingdom Home Office, August 2019.

83 Exhibit 4, Item 5.16, page 37.

84 Exhibit 4, Item 10.8, Availability and effectiveness of state and police response in bath urban and rural areas of southern Nigeria, for people who refuse to participate in ritual practices (2014-October 2016), Immigration and Refugee Board of Canada, 14 November 2016, NGA105659.E, pages 3-4.

85 Exhibit 4, Item 5.16, page 35.

86 Exhibit 4, Item 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018, pages 6 and 8.

87 Exhibit 4, Item 2.1, pages 30-31.

88 Exhibit 4, Item 5.3., pp. 15-16; Item 10.2, Governance, Accountability, and Security in Nigeria, Africa Center for Strategic Studies, Oluwakemi Okenyodo, 21 June 2016.

89 Exhibit 4, Item 10.2

90 Exhibit 6, Screenshots of KO’s messages and attempts to call the principal claimant, under different names and the principal claimant’s blocking of KO on social media and What’s App, pages 86-94.

91 Exhibit 8, Screenshot of friend’s messages about KO’s contact with him; Exhibit 9, Transcribed Voicemail from mutual acquaintance in Nigeria, page 147 [Audio of this voicemail played at the first sitting of this claim]; Exhibit 18, Transcribed Voicemail from other acquaintance in Nigeria, page 108.

92 Exhibit 4, Item 7.2, Nigeria: COI Compilation on Human Trafficking, Austrian Red Cross, Austrian Centre for

Country of Origin and Asylum Research and Documentation, December 20 I 7; Exhibit 7, The Black Axe, Harper’s Magazine, September 1, 2019, pages 59-65; Mississauga man gets 15-year sentence for fraud scheme involving Black Axe organization, The Globe and Mail, October 31, 20 I 9, page 68; Shadowy Black Axe group leaves trail of tattered lives, The Globe and Mail, November 12, 2015, page 69-74; Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018; pages 77-79; Exhibit I 2, The ultra-violent cut that became a global mafia, The BBC World Service, December 13, 2021, pages 264-269; Black-Axe: Leaked documents shine spotlight on secretive Nigerian gang, The BBC World Service, December 13, 2021, pages 270-271.

93 Exhibit 7, Nigerian cults protected by government high level members: Gangsters recruited by candidates to manipulate voting, il Gatto Quotidiano, Mario Portanova, November 17, 2018, page 67.

94 Exhibit 7, Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018, page 78.

95 Exhibit 4, Item 7.2, Nigeria: COI Compilation on Human Trafficking, Austrian Red Cross, Austrian Centre for Country of Origin and Asylum Research and Documentation, December 2017, page 5.

96 Exhibit 12, Italian police arrest alleged Nigerian Black Axe mafia members over trafficking, The Guardian, January 19, 2022, Lorenzo Tondo, page 300.

97 Exhibit 7, Ibid., page 78.

98 Exhibit 7, Italian caps try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018, page 78; Exhibit I 2, Italian police arrest alleged Nigerian Black Axe mafia members over trafficking, The Guardian, January I 9, 2022, Lorenzo Tondo, page 300.

99 Exhibit 4, Item 7.24, pages 6-7.

100 Exhibit 7, Nigerian cults protected by government high level members: Gangsters recruited by candidates to manipulate voting, il Gatto Quotidiano, Mario Portanova, November 17, 2018, page 66.

101 Exhibit 4, Item 5.3, pages 5-6, 15.

Categories
All Countries Nigeria

2021 RLLR 6

Citation: 2021 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: June 28, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-01443
Associated RPD Number(s): VC1-01444, VC1-01445, VC1-01446, VC1-01447
ATIP Number: A-2022-00210
ATIP Pages: 000202-000213

REASONS FOR DECISION

INTRODUCTION

[1]       This These are the reasons for the decision in the claims of XXXX XXXX XXXX (the “principal claimant”), her spouse XXXX XXXX XXXX (the “associate claimant”), their daughters XXXX XXXX XXXXand XXXX XXXX XXXX (the “minor female claimants”), and their son XXXX XXXX XXXX (the “minor male claimant”), as citizens of Nigeria, who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       XXXX XXXX XXXX was appointed as designated representative for her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX.

[3]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues.

ALLEGATIONS

[4]       The following is a brief synopsis of the allegations out forth by the principal claimant in her Basis of Claim (BOC) form.ii

[5]       The principal claimant fears persecution at the hands of her in-laws in Nigeria for her refusal to have the minor claimants undergo Female Genital Mutilation (FGM).

[6]       The principal claimant is a XXXX XXXXyear-old Yoruba female who was a victim of FGM when she was young. She now fears that her daughters will undergo the same trauma as her father-in-law is adamant on carrying out the procedure on the female minor claimants.

[7]       The principal claimant also fears for her life at the hands of persons convicted of crimes by the courts in Nigeria as she is a bailiff and executes the court verdicts.

[8]       The principal claimant and the minor claimants travelled to Canada on XXXX XXXX XXXX 2018. The associate claimant stayed behind in Nigeria. His father attempted to have him kidnapped, following which he quit his job and escaped to Canada on XXXX XXXX XXXX 2018.

[9]       The claimants filed for refugee protection, fearing for their lives in Nigeria.

DETERMINATIONS

[10]     I find that the principal and the minor female claimants are Convention refugees as they have established a serious possibility of persecution based on their membership in a particular social group upon return to their country. My reasons are as follows.

[11]     I also find that the associate claimant and the minor male claimant have satisfied the burden of establishing, on a balance of probabilities, that they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. My reasons are as follows.

ANALYSIS

Identity

[12]     I find that the claimants’ identities as nationals of Nigeria are established, on a balance of probabilities, based on certified copies of their Nigerian passports on file.iii

Nexus

[13]     For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.

[14]     In this case, the evidence before me is that the principal claimant fears persecution in Nigeria due to her refusal to subject the minor claimants to FGM. I find that she has established a nexus to a Convention ground – membership in a particular social group: namely a woman fearing gender-based persecution. I also find that the minor female claimants have established a nexus to a Convention ground – membership in a particular social group: namely children fearing gender­ based persecution. Accordingly, I have assessed their claims under section 96 of IRPA and not under section 97.

[15]     Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons (Kang, 2005 FC 1128 at para. 10). The associate claimant and the minor male claimant fear persecution in Nigeria due to the threat of kidnapping by the associate claimant’s father and his extended family due to the associate claimant’s refusal to subject the minor female claimants to FGM.

[16]     As victims of crime who fear future criminality which is not connected to one of the five Convention grounds, I find that the associate claimant and the minor male claimant have not established a nexus to one of the Convention grounds. Their claims will therefore be assessed under section 97(1) of the Act, and not section 96.

Credibility

[17]     When a claimant swears to the truthfulness of certain facts there is a presumption that what he or she is saying is true unless there are reasons to doubt it. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities.

[18]     In this case the principal claimant and the associate claimant testified in a straightforward manner and, there were no relevant inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me which have not been satisfactorily explained.

[19]     I canvassed the principal claimant why she did not seek protection earlier, since the threats of FGM by her father-in-law had commenced at the time her eldest daughter was born in XXXX. She explained that at that time they did not take the threats seriously and were able to talk the in­ laws into postponing the consideration of subjecting their eldest daughter to female circumcision. There were discussions on this issue, but the threats never escalated. Following the birth of their second daughter in XXXX, there was more serious talk of revisiting this issue of female circumcision. It is only when the father-in-law and his relatives began demanding that the female minor claimants will have to undergo FGM, did they start to realize the gravity of the matter. Then, when her father-in-law tried to get the associate claimant kidnapped for his refusal to agree with him on the issue of FGM, did they realize that their lives were in danger. I accept the principal claimant’ s explanation for the delay in seeking protection reasonable, as initially, it was just simple talk on the issue of FGM for the eldest minor female claimant. However, with the birth of their younger daughter in XXXX, the situation deteriorated, and the threats worsened with the escalation of those threats to physical harm for the principal claimant, the associate claimant, and the minor male claimant for refusing to honour the family tradition of subjecting the minor female claimants to FGM. I do not draw any negative inference on the issue of delay in seeking refugee protection.

[20]     Apart from their oral testimonies, the principal claimant and the associate claimant have provided corroborating documentary evidence to support their and the minor claimants’ claims. These documents form part of Exhibits 5, 6, 8 and 9. I have no reason to doubt the genuineness of these documents and accept them as genuine. The evidence contains the following:

  • Marriage certificate confirming the principal claimant and the associate claimant are married to each other, along with birth certificates of minor claimants confirming they are their children.
  • Supporting letter from pastor of a church in Nigeria confirming the claimants were facing threats of persecution at the hands of the associate claimant’s father and his extended family on the issue of FGM for the minor female claimants.
  • Medical note from Nigeria showing that the principal claimant was treated for XXXX XXXX XXXX XXXXand XXXX.
  • XXXX assessment report from Canada confirming that the principal claimant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX due to the events she faced in Nigeria.

[21]     Based on the principal claimant’s and the associate claimant’s straightforward testimony and the corroborating documentary evidence discussed above, I find them to be credible witnesses and accept their allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that:

  • The associate claimant’s father and his extended family want the minor female claimants to be subjected to FGM.
  • The principal claimant and the associate claimant were issued threats of harm by the associate claimant’s father.
  • There was an attempt to kidnap the associate claimant at the behest of his father for refusal to have the minor female claimants undergo FGM.
  • The associate claimant’s father has threatened to harm all the claimants for refusing to honour the family practice and tradition of FGM.
  • The principal claimant and the minor female claimants have a subjective fear of returning to Nigeria.

Well-Founded Fear of Persecution and Risk of Harm

[22]     To establish their status as Convention refugees, the principal and the minor female claimants had to show that there was a serious possibility that they would be persecuted if removed to Nigeria.

[23]     I find that the evidence presented in support of their allegations does establish a serious possibility of persecution for the claimants. My reasons are as follows.

[24]     The principal claimant has been threatened with dire consequences by her father-in-law for refusing to subject the minor female claimants to undergo FGM as per the family’s traditions and the Yoruba culture.

[25]     The claimants’ subjective fear is supported by objective evidence.

[26]     The country condition documents for Nigeria corroborate the facts alleged by the principal claimant and the objective basis for her and the minor claimants’ claims. FGM is widespread in Nigeria and the procedure has been performed on 20 million women and girls in the country, with some estimates indicating that 24.8% of all women between 15 and 49 have undergone FGM.iv

[27]     The claimants belong to the Yoruba culture and ethnicity. The objective evidence states that FGM is much more common amongst southern ethnic groups, and studies indicate that between 52-90% of Yoruba women and girls have been subjected to FGM.v

[28]     Although Nigeria has passed legislation to criminalize the FGM as well as the procurement, arrangement, and/or assistance of acts of FGM, the prevalence of this social evil remains concerning and there are no reported instances of any prosecutions brought under federal legislation since its introduction in 2015 in Nigeria.vi

[29]     I also reference the Response to Information Request (RIR) on whether parents can refuse subjecting their children to FGM and the repercussions for doing so.vii The RIR states that the decision to subject a girl to FGM is generally up to her parents and that parents who refuse to let their daughters be mutilated do not face any significant consequences. The principal claimant testified that her in-laws are rooted in rural Yoruba culture and traditions and have subject all their females to FGM. She stated that her father-in-law is adamant that until the minor female claimants are subject to FGM, calamities will befall on the family. She testified that the father-in-law has threatened that he will forcibly take away the minor claimants and do what needs to be done. I agree with the principal claimant’s argument that she and the minor claimants face a serious possibility of persecution as the RIR also states that the decision to refuse FGM without repercussions is dependent on whether the families are urbanites or rural folks, seeped in the traditions and culture. I accept the principal claimant’s assertion that her in-laws, even though urbanites, uphold the rural and family traditions such as FGM.

[30]     Therefore, based on all the evidence before me, I find that the principal claimant and the minor female claimants will face a serious possibility of persecution if forced to return to Nigeria, especially since her father-in-law is motivated and has threatened the principal claimant of dire consequences and of forcibly taking away the minor female claimants to subject them to FGM. I find that their fears are indeed well-founded.

[31]     I now turn my attention to the claims of the associate claimant and the minor male claimant.

[32]     I find, on a balance of probabilities, that both of them face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

[33]     The associate claimant’s father threatened him and his family of harm of he did not agree to uphold the family and Yoruba tradition of subjecting the minor female claimants to FGM. After the principal claimant and the minor claimants left Nigeria, the associate claimant’s father attempted to have him kidnapped, even though the associate claimant had changed his place of residence and moved to another state without informing anyone about it. This is indicative of the agent of persecution’ s motivation and ability to reach the claimants if they are forced to return to Nigeria. These threats of harm continue unabated through the claimants’ relatives in Nigeria.

[34]     Therefore, based on all the evidence before me, I find, on a balance of probabilities, that the associate claimant and the minor male claimant will face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

State Protection

[35]     I find that adequate state protection would not be reasonably forthcoming in this particular case.

[36]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward [1993] 2 S.C.R. 689).

[37]     The principal claimant stated that she will not be able to seek police protection in Nigeria because the issue of FGM is considered private, in which the police do not intervene.

[38]     Objective evidence states that authorities often do not take complaints about FGM seriously. There are no reported instances of any prosecutions brought under federal anti-FGM legislation since its introduction in 2015. A recent study conducted by UNFPA and UNICEF does not list any arrests, cases, or convictions for FGM in Nigeria.viii

[39]     Objective evidence also states that there are reports which indicate that it remains extremely difficult for women and girls to obtain protection from FGM due to community support for these practices, the attitude of police, and treatment by the police of FGM as a community or family matter.ix

[40]     Finally, I quote the United Kingdom Home Office report, which indicates that the police may be discriminatory in their treatment of victims of ritual practices, including FGM, and that women often do not report such practices to the police due to a lack of trust. Police themselves can be part of the culture and thus fail to treat such practices as criminal.x

[41]     The objective evidence discussed above establishes that FGM is considered a private matter in Nigeria. It is a prevalent practice in the country, thereby influencing the response of the police as not taking such acts seriously and thereby failing to provide protection to victims or potential victims of FGM and gender-based violence. Therefore, I find that the claimants will not be able to access adequate state protection in Nigeria and that the presumption of state protection has been rebutted.

Internal Flight Alternative

[42]     The final issue is whether the claimants have a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, I must assess whether there is any location in Nigeria in which the claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.xi

[43]     The agent of persecution in this case is the associate claimant’s father, who is extremely motivated to pursue the claimants in order to fulfill the long-standing family and Yoruba tradition of subjecting the minor female claimants to FGM. He has demonstrated through the kidnapping attempt of the associate claimant that he has the motivation and the reach to locate them within Nigeria.

[44]     Therefore, for reasons similar to those of state protection and the motivation and ability of the agent of persecution to locate the claimants, I find that they do not have a viable internal flight available in Nigeria.

CONCLUSION

[45]     For the reasons above, I conclude that the principal claimant and the minor female claimants are Convention refugees under section 96 of IRPA. Accordingly, I accept each of their claims.

[46]     For the reasons above, I conclude that the associate claimant and the minor male claimant are persons in need of protection within the meaning of section 97 (1)(a) or (b) of IRPA. Accordingly, I accept each of their claims.

(signed)  Sandeep Chauhan

i Immigration and Refugee Protection Act, S.C. 2001, c. 27.

ii Exhibit 2.

iii Exhibit 1.

iv Exhibit 3, National Documentation Package (NDP), Nigeria, 16 April 2021, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017. NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

v Exhibit 3, NDP, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017.

vi Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

vii Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGAI06183.FE.

viii Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

ix Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGA 106183.FE. NDP, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

x Exhibit 3, National Documentation Package, Nigeria, 16 April 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

xi 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 South Africa

2020 RLLR 3

Citation: 2021 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: January 18, 2021
Panel: Nalong Manivong
Counsel for the Claimant(s): Johnson Babalola
Country: South Africa
RPD Number: MB8-07585
Associated RPD Number(s): MB8-07686/MB8-07687
ATIP Number: A-2022-00210
ATIP Pages: 000062-000068

REASONS FOR DECISION

INTRODUCTION

[1]       The claimants, XXXX XXXX XXXX (“principal claimant”) and her two sons, XXXX XXXX XXXXand XXXX XXXX XXXX (“minor claimants”) are citizens of South Africa who are seeking refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The principal claimant acted as the designated representative for the two minor claimants.

[3]       Throughout the proceeding and in the decision-making process, the Panel applied the

Chairperson ‘s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution.

DETERMINATION

[4]       The Panel finds that the claimants are “Convention refugees” as they have established that there is a serious possibility that they will be persecuted on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and by reason of the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution, pursuant to section 96 of the IRPA.

[5]       The determinative issue in this claim relates to the allegations on gender-based persecution. Therefore, the Panel will not make a finding with respect to the other allegations regarding Xhosa customs and rituals and forced male circumcision of the minor claimants.

ALLEGATIONS

[6]       The principal claimant’s allegations are fully set out in her Basis of Claim (“BOC”) forms2 and amendments. The minor claimants relied on the principal claimant’s narrative.

[7]       In summary, the claimants allege persecution and risk to their lives at the hands of her ex- common-law husband, XXXX XXXX, a Zulu chief (“Chief”) in the neighbouring village.

[8]       The principal claimant alleges that she was born out of wedlock in a rural area called XXXX XXXX XXXX XXXX in KwaZulu-Natal. Her maternal uncle assumed guardianship and betrothed her to the Chief in exchange for a bride price when she was twelve years of age. The Chief sexually abused the principal claimant.

[9]       The principal claimant alleges that she had an affair and became pregnant with another man’s child and gave birth to her first son on XXXX XXXX XXXX XXXX. When the child did not resemble the Chief, he ordered a paternity test which revealed that the child was not his. The Chief ordered the child to be killed. The claimants fled XXXX and went to live with a friend in Umlazi, Durban and later found work at the XXXX XXXX XXXX.

[l 0]  The principal claimant alleges that the father of her son died in XXXX 2010 because of a car accident. According to the police, the brakes of his vehicle had been tampered with. The police arrested the perpetrator who confessed that he was hired by a Zulu man. In XXXX 2010, the Chief discovered where the principal claimant had work and sent men to threaten her and her son. These men sent her a message stating that the Chief could find her and her son and they would end up like her son’s father.

[11]     The principal claimant moved to a different part of town. She became involved with another man at work and became pregnant and gave birth to her second son on XXXX XXXX XXXX XXXX. The following year, the Chief found out where she lived and sent four men to assault her and her children. The men told her that since she refused to return home to be with the Chief that no one could have her. She was hospitalized for two weeks.

[12]     The principal claimant filed and received a protection order from the court in XXXX 2015. The principal claimant alleges that she moved to various cities and the Chief would cause problems for her in various placed she relocated to up until the time she left South Africa. The claimants left South Africa on XXXX XXXX XXXX 2018 and stayed in the United States until XXXX XXXX XXXX 2018. They arrived in Canada and filed for asylum.

ANALYSIS

Identity

[13]     The Panel finds that, on a balance of probabilities, the claimants have established their personal identities and identities as South African citizens through the principal claimant’s testimony and the documentary evidence, in particular, the certified true copies of their South African passports.3

Nexus

[14]     The Panel finds that the claimants have established a nexus to section 96 of the IRPA on account of the principal claimant’s membership in a particular social group — women fearing gender-based persecution in South Africa and the minor claimants’ membership in a particular social group — family members of women fearing gender-based persecution.

Credibility

[15]     Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness.4

[16]     The Panel finds that the principal claimant is credible and therefore believes what she has alleged in support of her claim. She testified emotionally, without any embellishments, and there were no inconsistencies in her testimony or contradictions between her testimony and the other evidence before the Panel. She submitted corroborative evidence, namely medical records, copies of protection orders, support letters as well as photos of attacks on one of her sons.5

[17]     The principal claimant’s testimony provided the Panel with insight into the way that the critical events had unfolded and contributed favourably to the finding of credibility. Therefore, the Panel accepts that the claimant subjectively fears persecution at the hands of her husband in South Africa.

[18]     The objective documentary evidence supports the claimants’ allegations regarding gender- based persecution in South Africa.

[19]     According to Tab 5.7 of the National Documentation Package (“NDP”),6 which is a comprehensive report on gender-based violence (“GBV”) in South Africa the two main drivers of intimate femicide are jealousy and possessiveness. These feelings are rooted in notions of masculinity where men see women as their property which they need to maintain power and control over. These men often use guns to intimidate partners especially when they threaten to leave the abusive relationship. In these kinds of relationships, some men kill their partners and themselves. Others kill everyone in the family including children.

[20]     Further, a Response to Information Request (“RIR”) in Tab 5.5 of the NDP states that “the female homicide rate in South Africa is six times higher than the global average and that approximately half of those women are killed by their partner,” that “domestic violence is often perceived as ‘normal,’ contributing to the intergenerational transmission of violence.”7

[21]     Considering the principal claimant’ s testimony and the documentary evidence, the Panel finds that the claimants have established, on a balance of probabilities, that there is an objective basis for the subjective fear of persecution in South Africa.

State Protection and Internal Flight Alternative

[22]     The implementation of legal instruments has not been shown to be having a positive effect on GBV against women in South Africa. According to a report found at Tab 5.3 of the NDP which assesses legislative amendments made in 1998 to better protect women:

“Legislators crafted a multi-dimensional system of accountability designed to compel both an individual and an organizational response to domestic violence in South Africa. But legislating accountability was only the minimum condition for its practice, and the mere fact of accountability mechanisms’ existence is not sufficient to ensure effectiveness. Whatever the improvements it is reported that ambivalence still marks the exercise of accountability in relation to domestic violence in South Africa.”8

[23]     Tab 5.7 of the NDP further reports that police do not take GBV seriously:

“Courts or police stations are often not easily accessible to women and the lack of an effective justice system seems to be an impediment to victims of GBV seeking help, and further increases the risk of more violence and even femicide. Further studies have found that many police officers are unwilling to assist victims of GBV as they see these cases as ‘private matter between two partners.’ Police officers’ passive and negative attitudes in South Africa often result in secondary victimization and play a role in victims not reporting their cases to the police or withdrawing them after reporting. These studies conclude that legislation is good, but negative attitudes among police officers discourage victims from seeking help. A protection order should serve as a protective factor, but for some women, this actually increases their risk of further violence. Of those women who are killed by their intimate partners in South Africa some are known to have had only recently obtained protection orders.”9

[24]     The police themselves are known to often exploit women and engage in the conduct that they are expected to protect women against. In the RIR found in Tab 5.5 of the NDP, according to sources:

“There have been several instances in which police themselves have deviated from protocol and responding to domestic violence cases. Several complaints against police are noted and these include delays in attending to call outs, mediating cases instead of arresting perpetrators and police not taking the experiences of victims seriously. There are even reports of police officers treating abused women poorly. In 2013 there were reports that at least halfa dozen police officers had been arrested for rape themselves including an officer accused of raping a woman who came to the police station to report domestic violence. There are also reports that two police officers were arrested for alleged rape and one of those officers were sentenced to 15 years imprisonment for shooting and killing his girlfriend. And another officer was arrested in the shooting death of another woman he was involved with.”10

[25]     Based on the objective documentary evidence mentioned above, the Panel finds that state protection is not reasonably forthcoming for the principal claimant or the minor claimants m South Africa.

[26]     Lastly, the Panel considered whether a viable Internal Flight Alternative exists. The principal claimant testified that she moved many times in different parts of South Africa. And everywhere she ended up settling down, the Chief had used his connections with the police and the government to locate her. The principal claimant testified that the Chief is motivated to find her because he paid a bride price for her and that he views her as his property. Despite the protection order she obtained against the Chief he continued to torment her and her children wherever they ended up. The principal claimant testified that the Chief was a prominent authority figure in his village and had five other wives prior to paying a bride price to marry the principal claimant. He has demonstrated that he has the resources to pay thugs to do his bidding of threatening and harming the claimants. The Panel, therefore, finds that the agent of persecution has the means and motivation to locate the principal claimant and her children. On the evidence before it, the Panel finds that there is a serious possibility of persecution throughout South Africa, as the objective evidence demonstrates that there is no state protection for victims of gender-based violence in South Africa. The Panel therefore concludes that an Internal Flight Alternative does not exist in the present case.

CONCLUSION

[27]     Having considered all of the evidence, the Panel finds that the claimants have established that they face a serious possibility of persecution in South Africa based upon their membership in a particular social group – women fearing gender-based persecution and/or family members of women fearing gender-based persecution.

DECISION

[28]     The Panel finds that the claimants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are “Convention refugees” and their claims are accepted.

            Nalong Manivong      

            18 January 2021         

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, section 96 and subsection 97(1).

2 Document 2.1 – Basis of Claim Form.

3 Document 1 – Package of information from the referring Canada Border Services Agency / Immigration, Refugees and Citizenship Canada;

4 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.).

5 Document 4 – Disclosure Documents: C4 to C9; C17; C19 to C22.

6 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

7 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

8 Document 3 – Tab 5.3: Mapping local gender-based violence prevention and response strategies in South Africa. The Centre for the Study of Violence and Reconciliation. April 2016.

9 Document 3 – Tab 5.7: Gender-Based Violence (GBV) in South Africa: A Brief Review. The Centre for the Study of Violence and Reconciliation. April 2016.

10 Document 3 – Tab 5.5: Domestic violence, including legislation, state protection and support services available to victims; ability of women to relocate to Cape Town (2014-May 2015). Immigration and Refugee Board of Canada. 25 May 2015. ZAF105159.E.

Categories
All Countries Nigeria

2020 RLLR 155

Citation: 2020 RLLR 155
Tribunal: Refugee Protection Division
Date of Decision: December 23, 2020
Panel: Sudabeh Mashkuri
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: TB8-02740
Associated RPD Number(s): TB8-02782
ATIP Number: A-2022-00210
ATIP Pages: 000109-000113

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in the case. I’m going to render my decision orally right now. When you do get the transcript of these reasons they will not be edited for spelling, syntax, and grammar, but I want to reassure you that I have considered and taken into my findings all the applicable case law, the documentary evidence, and all the other references that were before me.

[2]       The claimants XXXX XXXX XXXX XXXX and minor claimant XXXX XXXX XXXX, you claim … the principal claimant claims to be a citizen of Nigeria and the minor claimant is a citizen of the United States, and they are both claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have appointed you as the designated representative to the minor claimant XXXX XXXX XXXX, and your claims have been joined under Rule 50 of the Immigration and Refugee Protection Act regulations.

[4]       This is going to be a split decision. In deciding your claims I have considered the guidelines on women refugee claimants fearing gender related persecution and this is my determination.

[5]       I am first going to deal with the minor claimant. After considering all the evidence before me I find that the minor claimant, although she has … she has established that she is a US citizen, I find that she’s neither a Convention refugee nor a person in need of protection. No evidence was put forward on behalf of the minor claimant with regards to persecution in United States.

[6]       I do find that identity of the minor claimant has been established based on the principal claimant’s testimony. The minor claimant has a US passport, as well as a birth certificate. She also has a Nigerian passport based on her parent’s citizenship. However, I do find that since she’s also a citizen of United States and no claim was advanced with regard to the claimant against the US, I … that … that would suggest that as a citizen of the US she would not be able to obtain State protection in the US.

[7]       I do find that her claim has failed, that she’s neither a Convention refugee nor a person in need of protection, and therefore her claim is denied. However, this is my second determination.

[8]       I find that the principal claimant is a Convention refugee based on her membership in a particular social group. I do find that there’s an intersection between two grounds. One is a membership in a particular social group as a family member of … of a child who is XXXX, and I also find that there is an intersection of the principal claimant’s immutable being as … as a woman and therefore I find that there is a gender aspect. She is a mother and a woman who’s deemed to be responsible, either as a XXXX, which is based on her gender, for her child having … having been XXXX with XXXX.

[9]       As far as the analysis of this case is concerned, as I stated previously, as far as identity’s concerned I find that the principal claimant has established that she is a citizen of Nigeria based on her testimony and her passport, and the minor claimant is a citizen of Nigeria as well as United States.

[10]     Credibility is an issue in every claim. I found that the claimant was … the principal claimant was credible witness with regards to what she has alleged in support of her claim with regards to her daughter.

[11]     And I want to just go a little bit with regards to the allegations of this claim. The allegations were set out in three Basis of Claim Forms about the fear of the claimant on being persecuted by her in-laws because of her mother-in-law dying in 2016, in XXXX 2016. However, I have taken into consideration that her fear materialized at that point for being perceived as a XXXX, responsible for the death of her mother-in-law, but however, that was almost four and a half years ago. A lot has happened since then.

[12]     And I’ve looked at the documentary evidence provided and I find that this is basically a sur place claim in that the claimant’s daughter, although assessed in the United States in 2017 with developmental delay, was not diagnosed with XXXXandXXXX XXXX until 2019, when the claimants were in Canada.

[13]     I’ve looked at … I have found the claimant’s oral testimony with regards to how she would be treated if she is to return presently to Nigeria to be credible, as well as the objective documentary evidence concerning the perception of the persecutors for a woman, a mother of an XXXX child. The minor claimant is only XXXX years old and she would be returning to Nigeria with her mother, although she’s American citizen.

[14]     I have looked at the past behaviour of the claimant’s in-laws as agents of persecution with regards to what they believed, what they call ju-ju or cultural milieu of a woman blamed for misfortunes falling on a family, and I do find that, on a balance of probability, she would be persecuted based on the recent diagnosis of XXXX for the minor claimant in Canada.

[15]     As I stated, as far as credibility is concerned, I find that the fear for the claimant basically materialized once she was in Canada with regards to the diagnosis of XXXX for her child.

[16]     The claimant fears her in-laws, society, community, and the discrimination that she fears in … my finding will cumulate to persecution. Taking into account the objective documentary evidence of those who are … who have XXXX or parents of XXXX children are treated in Nigeria.

[17]     I have vast amount of documentary evidence. The fear is forward-looking and therefore I do find that there’s a reasonable chance of persecution of the principal claimant as a mother of an XXXX child if she’s to return to Nigeria presently.

[18]     I just wanted to put into the record some of the objective documentary evidence that was provided to me in Exhibit Number 8, for example, with regards to exorcisms as a common treatment for those who have XXXX. Mothers are blamed for their children’s XXXX in Nigeria.

[19]     Persons with XXXX and disabilities are perceived as possessed and evil. And although minor claimant is an American citizen and not at risk if her mother is deemed to be the person who’s responsible for XXXX XXXX the principal claimant also would be at risk.

[20]     XXXX is deemed, as I stated, seems to be connected to witchcraft and diabolic activities. There’s a … there is a fear of social stigma also for the principal claimant and her daughter. The extended family whose in Nigeria also would be part of the agents of persecution.

[21]     As stated in the documentary evidence, in Nigeria there is a lot of mysticism around disabilities and people who don’t often know what to attribute to the disability of a child and the Nigerian culture.

[22]     I … I have some documentary evidence with regards to the Yoruba culture. Blames diseases and disabilities, like XXXX XXXX often to mothers and on witchcraft and spirits and hereditary causes or just bad parenting, as stated in the basis of … objective documentary evidence.

[23]     There’s also a lack of community and family support and social support, and as I stated, shame and stigma with regards to those who are deemed to be parents of XXXX children.

[24]     I do have documentary evidence that those who are deemed to be possessed are sometimes killed, tied up, and generally mistreated very badly in Nigeria.

[25]     As far as State protection is concerned, there’s ample documentary evidence with regards to the police corruption in Nigeria.

[26]     Recently in the news there has been reports of protest against SARS which is a special Nigerian police force department. There’s also ample documentary evidence with regards to lack of protection for those who are fleeing anything to do with family problems.

[27]     Furthermore, the claimant’s in-laws are well-known politicians. They are well connected with the police, and there are … therefore I find that there’s inadequate State protection available to the claimants, specifically in this particular case to the principal claimant for someone who’s deemed to be a XXXX or responsible for her daughter’s XXXX.

[28]     As far as internal flight alternative is concerned, I’ve taken into consideration the two-prong test given tome by the Federal Court of Appeal. I have also taken into account the gender guidelines. I find that the first prong that the reach and means and the influence of the extended in-law’s family is very wide.

[29]     They do have the motivation. They seem to be steeped in cultural background of belief of mysticism.

[30]     And I do find that the documentary evidence provided with regards to the agent of persecution, there were some media reports with regards to the principal claimant’s in-laws being very influential and holding high office in Nigeria. And as I stated, the State protection is extremely inadequate presently in … in Nigeria.

[31]     There’s also the issue of whether it’s reasonable during pandemic for the claimants to go and live in a different place, the second prong of the IFA. I’ve taken into consideration again particular circumstances of the principal claimant of being a mother of an XXXX child. There is a lack of programs for the minor claimant.

[32]     Again, I do note it is a fictional, legal fictional programs for the minor claimants. Again, I do note it is a fictional, legal fictional premises that we have the minor claimant would not be going back with her mother. She’s XXXX years old. Obviously, she would not be going back to the United States. She would going with her mother.

[33]     And an XXXX child with absolutely no programs available to her in Port Harcourt, as well as the principal claimant who has been getting XXXXand XXXX assistance in Canada. I do not find that there would be any … anything like that available to her in Port Harcourt. She would living as a single mother since her husband would continue to live in Lagos, so that her in-laws would not be able to find her.

[34]     There’s stigma. There’s a lack of opportunities for employment for single mothers, and presently since the fear is forward-looking, I find that there’s no viable or reasonable internal flight alternative available to the principal claimant.

[35]     Therefore, based on the foregoing analysis, I find that the principal claimant is a Convention refugee and I reject the minor claimant’s claim with regards to United States. Thank you.

COUNSEL: Thank you so much, Madam Member. Well, appreciated. Thank you.

MEMBER: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 150

Citation: 2019 RLLR 150
Tribunal: Refugee Protection Division
Date of Decision: May 28, 2019
Panel: Joshua Prowse
Counsel for the Claimant(s):
Country: Nigeria
RPD Number: VB8-01902
Associated RPD Number(s):
ATIP Number: A-2022-00210
ATIP Pages: 000156-000163

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER: This is the decision in the claim for refugee protection made in File VB8-01902. That is the claim of XXXX XXXX XXXX and her two children.

ALLEGATIONS

[2]       The specifics of this case are stated in the narrative of your Basis of Claim form. In short you state that you left Nigeria because of history of domestic violence that you faced as well as risk of female genital mutilation or FGM for the minor Claimant who is part of this proceeding.

[3]       In assessing this case, I considered the following Chairperson’s guidelines. Guideline 3 on child refugee claimants. Guideline 4 on women refugee claimants.

DETERMINATION

[4]       I find that you are Convention refugees.

IDENTITY

[5]       Your personal identity and your identities as a citizen of Nigeria are established by your testimony and the supporting documentation filed, principally copies of your passports which are on file at Exhibit 1.

OBJECTIVE EVIDENCE ABOUT COUNTRY CONDITIONS

[6]       I will start assessing your allegations that you face a serious possibility of persecution in Nigeria by examining the context of the country conditions relevant to your situation. There are a number of documents about female genital mutilation, it’s prevalence in Nigeria and the state response to it. I note the Response to Information Request that is on file entitled Prevalence of female genital mutilation among the Urhobo including consequences for refusing to undergo this procedure, particular pregnant women. State protection available. And that document which makes a number of general comments and reviews evidence about the response to FGM including in Lagos area. And it states that FGM is still deeply entrenched in the Nigerian society. It describes it as widespread and rampant and it notes that according to one source 41 percent of adult women in Nigeria have undergone some form of FGM and that FGM is more prevalent in the southern states of Nigeria.

[7]       A question also arises, and I’ll touch on this a little bit later but partly now, about the extent of the legislation and state response involving FGM. There’s a document on file at 5.32 of the National Documentation Package from the United Nations Children’s Fund, UNICEF entitled Country Profile FGM in Nigeria, October 2016. It’s also from an organization 28 Too Many which is an anti-FGM advocacy organization. And it notes at page 3 of that document that more than 20 million women and girls have been cut or are at risk of being cut and it discusses the nature of the legislation relating to FGM in Nigeria. At page 52 of that document it notes that while there is federal legislation, which is referred to by it’ s acronym the VAPP, V-A-P-P. That is a federal law and therefore it’s only effective in the federal territory of Abuja and that while each individual state in this case, Lagos, where the Claimants’ were last residing have passed legislation. Though the nature of that legislation varies and in some states there isn’t specific legislation related to FGM. In Lagos there is but there are reportedly significant problems with it’s enforcement.

[8]       The US Department of State reports that police often refuse to protect women when “the level of alleged abuse did not exceed customary norms in the area.” And that generally speaking effective enforcement of such laws has been wanting.

[9]       There’s a second aspect to this claim which involves violence, domestic violence being inflicted upon the Principal Claimant and her son and this something that has been ongoing and has reportedly affected them for a number of years. We have information on file in the National Documentation Package about the prevalence of domestic violence and recourse and options available to those who experience it.        For example there’s a Response to Information request entitled Nigeria – Domestic Violence including Lagos state legislation recourse, state protection and services available to victims. And it discusses the fact that domestic violence as in, perhaps both countries, is quite prevalent but it also discusses a situation in which the state response available for those who experience domestic violence is quite limited. That there are very few services such as shelters available in the country and it describes the situation in which authorities such as the police and the courts are generally unaware of many key laws that are on the books but effectively unenforced.

[10]     Given this evidence, I conclude that there is an objective basis to the allegations before me. The risk that has been described is consistent with information on file about the treatment of others in Nigeria.

DO YOU FACE A SERIOUS POSSIBILITY OF PERSECUTION?

[11]     A claimant has the burden to induce evidence which shows they face a serious possibility of future persecution. This must be credible and believable evidence. Given my conclusion about the general country conditions, the questions for me to assess in order to determine these Claimants individual risks were first is it credible that they, in particularly the Principal Claimant have been subjected to domestic violence while they have been in Nigeria. And secondly is there a forward looking risk of circumcision for the female minor Claimant and violence attendant to that circumcision for the other Claimants should they refuse to partake in the procedure.  And in general when assessing these issues I will say that I found the Claimants to be credible witnesses and I therefore believe what they have alleged in support of their claims.

[12]     In assessing credibility in a refugee claim we start from the presumption that claimants and their allegations are credible. This presumption reflects the fact that claimants are providing sworn testimony and that circumstances facing fleeing refugees can compromise their ability to present corroborative evidence. In assessing whether a claimant’s statements are believable we consider whether the facts presented are detailed, plausible and consistent.

[13]     These criteria are met in this case as the Claimants relayed their testimony convincingly both in writing and orally.  And as I’ve stated their allegations are also consistent with information on file about country conditions.

[14]     I asked some specific questions turning first to the allegations about domestic violence. Their testimony was consistent about this. The Principal Claimant’s son testified about what he has observed and what he fears in this respect. There’s corroborating documents on file including from a friend of the Principal Claimant who corroborates the statements about the domestic violence that this family has been subjected to over a significant period of time at the hands of Principal Claimant’s ex-spouse.

[15]     And the Claimants state that they ran away from this ex-spouse about a year before leaving Nigeria and then coming to North America. I asked a number of questions about this. The Claimants continued their schooling over this period. How were they able to afford this sort of schooling? How were they able to afford visa applications? How were they able to afford international travel including to Benin then the United States during this period. And all of the Claimants’ answers on in terms of those types of questions were satisfactory, in my view.       The Claimants received financial aid from a comparatively wealthy friend of the Principal Claimant who the Principal Claimant has known since she was a very young girl. This friend took the Principal Claimant and her children in. Supported them and facilitated their exit from the country. The minor Claimants did not need to pay for schooling at this time as they were attending a state school and in fact they switched what school, for instance the male child was in around the time of their move away from the ex-partner’s home and towards Lagos and they are completely consistent between their testimony and the other documents on file in this respect.

[16]     The male Claimant says he last saw his father in 2015 and that the family went to the United States because his dad wanted to circumcise his younger sister. Which takes me to the second question that I considered in terms of the credibility of specific allegations. That’s the risk of circumcision for the minor Claimant in these proceedings. I have the Claimant’s sworn and consistent testimony in this respect that the agent of persecution inflicted and arranged to inflict FGM on another one of the Principal Claimant’s children. That child died from the procedure. I have corroborating documents related to that death. Including a medical report which describes it in detail. And further more this is a claim in which I have a number of corroborating documents related to the ongoing risk to these Claimants and the way that the principal agent of persecution has pursued them and in their absence from Nigeria has pursued the Principal Claimant’s friend who was instrumental in facilitating their exit from the country. I have a medial report at Exhibit 5 regarding injuries that this friend suffered as recently as last month as a result of thugs that the agent of persecution hired to pursue her and attempt to obtain information about the Claimants whereabouts. I have a police report that this individual filed about the fact that she was pursued by these thugs which names the principal agent of persecution in the police report. I have a detailed Basis of Claim amendment which includes corrections and was updated to reflect recent circumstances and I also have a number of statements on file including an affidavit from the Principal Claimant’s friend, XXXX (ph.). And I have bank statements, psychotherapist’s letter and a sworn declaration.

[17]     In sum I accept that these Claimants face a violence at the hands of the Principal Claimant’s ex-partner who is seeking to inflict FGM on the minor Claimant and who has generally been abusive towards both the Principal Claimant and the children of their relationship and is not content to see these individuals move on from the relationship. Given the past persecution, the persecution of those similarly situated to them, I conclude that there is a serious possibility of these Claimants being persecuted should they return to Nigeria.

DOES THE HARM THAT YOU FACE UPON TO NIGERIA AMOUNT TO PERSECUTION?

[18]     The harm that a refugee fears must be persecution. And our refugee law, persecution can be considered the sustained or systemic violation of basic human rights. The circumstances that you face implicate in a sustained or systemic manner a number of such rights. This includes the right to life which is illustrated by the fact that one of the Principal Claimant’s children already died when FGM was inflicted upon her. This is protected in Article 6 of the Internal Covenant on Civil and Political Rights which provides that every human being has the inherent right to life. This is also relates the freedom from domestic violence and gender based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. And this is discrimination within the meaning of the Convention on the elimination of all forms of discrimination against women.

[19]     A situation involving such rights violations will be persecutory if it has substantially prejudicial effects for persons concerned.  And it’s clear that that is the case here. The Claimants write eloquently in their narrative at paragraph 48 in that “I am afraid to return to Nigeria because I know my partner and his family are still looking for me and may children. I know that if XXXX (ph.) found us he would harm or mistreat us and force my daughter to be circumcised. For these reasons I seek protection in Canada.

[20]     Given these statements that the Claimants fear returning to Nigeria and their description of the harm that they have experienced and have anticipated upon return, I find that they subjectively fear returning to Nigeria and I conclude that the harm that they fear about is persecution.

[21]     When reaching this conclusion I did consider the fact that they spent some time in the United States prior to claiming in Canada. In fact they spent a significant amount of time there and ultimately stayed beyond the expiry of and validity period for their US visa. I don’t find that I should draw a negative inference about the credibility of the Claimants’ subjective fears of persecution in Nigeria, at that point, for several reasons. First two of the Claimants are quite young at that time. A minor Claimant and another who just reached the age of majority of that period and then for the Principal Claimant she’s quite a vulnerable individual. She does — she’s functionally illiterate, has no history of schooling in Nigeria. Was dependant upon others for advice and was deterred from claiming apparently for financial reasons. I find that in the circumstances the Claimants have amply and reasonably explained their failure to claim refugee protection in United States at the time that they did.

ARE YOUR FEARS BY REASON OF ONE OR MORE OF THE GROUNDS IN THE REFUGEE CONVENTION?

[22]     In order to qualify for refugee status under the Refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution “for reasons of race, religion, nationality, membership in a particular social group or political opinion.”

[23]     I conclude that this requirement is met in your cases as your fears of persecution in Nigeria relate to the Convention grounds first of particular social group related to the particular social group of women. And second for the male Claimant the particular social group of the family. It’s clear that the domestic violence that the Principal Claimant has experienced and the female genital mutilation that the minor Claimant stands to experience, is something that is disproportionally inflicted upon women and also it is something where the state response is disproportionally anemic because of the gender of the victims of those practices.

STATE PROTECTION

[24]     The refugee definition specifically requires that each refugee establish that they are “unable or by reason of their fear, unwilling to unveil themselves of the protection of their country.” It is the duty of all states to offer protection to their nationals. Refugee protection only becomes available when a claimant’s country of nationality fails in the performance of this duty. These Claimant’s have evidence which demonstrates that this requirement is met in their cases as they are unable to avail themselves of the protection of their country.

[25]     And I have a number of documents about this. But with respect to the enforcement of anti- FGM legislation in Nigeria the Response to Information that I quoted earlier on the prevalence of female genital mutilation among the Urhobo states that — has a bunch of more general statements about FGM, starting at page 6 of that report. It states that no cases of legal prosecution of people who have been subjected to girls or women to FGM have been documented in Nigeria.   And that even in Nigerian states that have legal provisions in place to prosecute the perpetrators of FGM either under general or specific criminal laws, prosecutions are very rare.

[26]     Counsel provided a summary of some of the country conditions with respect to state protection in his submissions. He noted that the UK Home Office report at 1.7 of the National Documentation Package indicates that the effectiveness of state protection is undermine by a lack of resources, by corruption and that women face pervasive discrimination in attempting to access such state protection and that the bribery rate for police among those who wish to access police protection is nearly 50 percent. And I find that this is particular relevant given that fact that this agent of persecution is connected to politicians in the country.

[27]     In short there is clear and convincing evidence before me that Nigeria will not afford these Claimants the protection we expect of a state and that they are consequently unable to obtain adequate protection from their country.

INTERNAL FLIGHT ALTERNATIVE

[28]     When considering whether you have an internal flight alternative we ask whether there is a part of your country in which you would not face a serious possibility of persecution and whether it would be reasonable to expect you to move there. I conclude that you do not possess a viable internal flight alternatives in your country.

[29]     This is for several reasons. In terms of the Principal Claimant, in my view, there are evident issues related to the reasonableness of any internal flight alternative. She is illiterate, uneducated, single women with children without any work experience outside of the home. However this is tempered by the fact that she would be relocated with her adult child who is in his early XXXX XXXX male child with above average education in Nigeria and in my view the analysis of the reasonableness of any relocation would be complicated by that fact. However it’ s not necessary for me to consider the reasonableness of relocation in this case because I find the viability of an internal flight alternative fails on the first prong of the analysis. The internal flight alternative location identified in this case, Port Harcourt, is one where there would remain a serious possibility of persecution for these Claimants by reason of the fact that the agent of persecution would be able to track them down and locate them in Port Harcourt through the Claimant’s friend who resides in Lagos.

[30]     The Federal Court jurisprudence is clear that this Board cannot expect an individual to have to make a secret return to their country or a return where they are excluded from their support groups, from their friends, for their family members. Counsel directed me to the case of Ohakam 2011 FC1351 and I find that the principal coming out of that case is directly applicable to the circumstances before me. The Principal Claimant’s best friend, one who she is in frequent contact with, is located in Lagos while this friend has not divulged information about the Claimants’ whereabouts to date, it cannot be expected that this friend would be able to refrain from doing so indefinitely. Especially in light of the evidence before me that the agent of persecution has engaged in an ongoing campaign of harassment, threats and the hiring of thugs to intimidate her in order to obtain such information. As these Claimants would not be able to escape a serious possibility of mistreatment by internal relocation, I conclude that they do not possess a viable internal flight alternative in Nigeria.

CONCLUSION

[31]     In conclusion I find that the Claimants are Convention refugees and I accept their claims. That concludes today’s hearing. We are now off the record.

—PROCEEDINGS CONCLUDED

Categories
All Countries Barbados

2020 RLLR 148

Citation: 2020 RLLR 148
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: D. Willard
Counsel for the Claimant(s): Annie N. O’Dell
Country: Barbados
RPD Number: TB8-29245
Associated RPD Number(s): TB8-29336; TB8-29337; TB8-29338
ATIP Number: A-2021-01105
ATIP Pages: 000057-000065

DECISION

[1]   MEMBER: This is an oral decision in the claims for refugee protection of XXXX XXXX XXXX XXXX XXXX XXXX the File number is TB8-29245, XXXX XXXX XXXX XXXX XXXX the File number is TB8-29336, XXXX XXXX XXXX TB8-29337 and XXXX XXXX XXXX the File number is TB8-29338.

[2]   The claimant’s are seeking protection in Canada; well the principal claimant is seeking protection in Canada pursuant to Section 96 of the Immigration and Refugee Protection Act on the basis of her membership in a particular social group that is women who are at risk due to domestic violence and domestic violence in Barbados.

[3]   The claimant indicates that she and the minors are all citizens of Barbados only and of no other country. The panel wishes to note that the written version of these reasons will not be edited for spelling, syntax, grammar and no references to applicable case law.

ALLEGATIONS:

[4]   The details of the claimant’s allegations are found in Exhibit 2.1 before the panel in the basis of claim form narrative and also in the additional narrative at Exhibit 4 which provides an update to the initial narrative.

[5]   In summary the claimant the principal claimant indicates that she was born in Barbados XXXX XXXX XXXX XXXX. That she and the minor claimant’s who are her children are all citizens of Barbados only. She states that her sons share a father XXXX XXXX who continues to reside in Barbados and from whom she obtained a letter of consent in order for them to travel to Canada.

[6]   She indicates that her daughter XXXX her father XXXX XXXX(ph) is the individual who the claimant is afraid of in Barbados. She details the nature of her relationship with XXXX (ph) in her narrative.

[7]   To summarize; she indicates that she met him a number of years ago when her eldest son was still quite young. She states that the relationship initially was positive but took a turn for the worst and became a very abusive one.

[8]   She indicates that over the years she’s lived in a variety of different places including with XXXX(ph) father, her mother she’s moved addresses a number of times but that XXXX(ph) has been abusive on a continual basis in a manner of different forms.

[9]   She indicates in her narrative that she tried to seek help from the police on a number of occasions. She indicates that help was not operationally adequate so to speak, it was not forthcoming to her.

[10]   She states that after a number of attempts to try to get help from them she gave up hope, particularly on the last occasion in the fall of 2018 when she had an altercation with XXXX (ph) in which the police were not helpful to her and gave her a solution that she believed would end up in her being charged with assault and being arrested.

[11]   It was at this point that she decided that she could no longer live in Barbados and promptly decided to come to Canada and seek help here. She entered Canada on XXXX XXXX of 2018 with the three minor children and shortly after arriving here filed a claim for refugee protection for herself and on their behalf as well.

DETERMINATION:

[12]   After assessing all of the evidence before me madam I find that you have established on a balance of probabilities that you have a well founded fear of persecution in your country Barbados on the basis of your membership in a particular social group, that is on the basis of your gender and as a woman who fears abuse in Barbados from a partner.

[13]   I find that you have established your identities that is your own and that of the minor claimant’ s on a balance of probabilities. I find as well that you’ve established the credibility of your allegations on a balance, the well foundedness of your fear.

[14]   I find that you’ve also provided a reasonable explanation for your delay in filing your claim here in Canada and that on a balance operational adequate state protection would not be forthcoming to you nor that there would be a viable internal flight alternative for you in Barbados.

[15]   I’m going to turn to my analysis now. First with respect to your personal identities I note madam that you did provide your original passports both for yourself and the minor claimants and I have certified true copies of them before me in Exhibit 1.

[16]   I note that all of the passport copies before me indicate the dates of birth and country’s of citizenship, places of birth that you have alleged.

[17]   I find therefore madam that you have discharged your onus of demonstrating your personal identities as per Section 106 of the Immigration and Refugee Protection Act and Rule 11 of the Refugee Protection Division rules. Accordingly I accept that all of you hold the identities that you allege.

[18]   With respect to credibility, madam I found you to be today a very credible witness. You were very straightforward, sincere, detailed, and heartfelt in the statements that you made. You were able to testify in a manner that was very consistent with the narrative that you provided of the events that occurred to you.

[19]   You were consistent with the documentation in Exhibits 2.1 and Exhibit 4. I have insufficient reason to doubt the sincerity and truthfulness of your allegations of abuse at the hands of XXXX XXXX (ph) in Barbados.

[20]   Accordingly I accept your allegations as truthful and in reaching that determination I’ve also been mindful of the documentation that you have provided and your explanation for the Jack of documentation from the police, I note that in Exhibit 6 through your counsel you provided a number of documents.

[21]   You provided the Barbados police medical report, the original of which you gave tome today, you provided a copy of what’s app messages to XXXX XXXX who you dealt with in Barbados, you also provided a print out of recent calls from XXXX(ph), contact information, you provided a number of letters of support from individuals who know about the problems that you’ve endured with XXXX(ph), you also provided a consent letter from XXXX XXXX for the purposes of your travel.

[22]   I note as well that there is a XXXX assessment from XXXX XXXX that I’ve also bore in mind in assessing your evidence today.

[23]   I’ve also madam been mindful of and been guided by chair person’ s Guideline 4 on women fearing gender persecution in their country of origin and I’ve also been mindful of counsel’s outline in her application regarding the, your emotional state and the XXXX symptoms that you are experiencing.

[24]   I find madam that you have established through your evidence and testimony today the credibility of your allegations and accept them as credible on a balance.

[25]   With respect to the delay in filing your claim here in Canada, I did ask you questions today about whether or not you were aware that you could file a claim for protection upon arrival. I note that you indicated that you weren’t aware that you could qualify as a refugee claimant and therefore you were guided by a friend who gave you some advice and told you to seek legal assistance and contact a shelter.

[26]   You described the steps that you took in detail that you contacted XXXX(ph) house, that you needed to apply for legal aid, seek legal assistance, I’ve bore in mind your particular circumstances and also have taken into account the fact that you were here on a valid visa, a valid visitor’s stay when you were seeking legal advice.

[27]   Therefore I find that the delay of approximately a month or two in filing your claim here in Canada is not indicative of a lack of subjective fear. I accept your statements as reasonable and therefore draw no negative inference from the delay which was a rather short one.

[28]   In terms of the well foundedness of your fear, I note that the documentary evidence in particular Item 5.5 indicates that domestic violence continues to be a major problem in Barbados.

[29]   There was a, so Item 5.5 is indexed as BRB105717.E its dated March 3rd of 2017 and it’s includes a survey of six hundred people in Barbados on behalf of Unicef s office for the Eastern Caribbean area and it noted that seventy six percent of respondents indicated that they thought domestic violence remained to be a major problem in Barbados.

[30]   Thirty six percent of respondents had someone close to them experience domestic violence by a spouse or partner. According to Freedom House violence against women remains widespread despite domestic violence laws in the country.

[31]   Moreover it similarly states that the violence, that violence and abuse against women continue to be a significant social problem.

[32]   A 2016 report by Inter American Developmental Bank entitled crime and violence in Barbados states that the recording of statistics related to violence in the home in Barbados is severely limited.

[33]   It goes on to state that information collection on domestic violence is inadequate due to under reporting, under documentation, administrative incapacity and a lack of a appreciation for the use of statistics and the policy formulation and monitoring cycle.

[34]   The Barbados government information service GIS further quotes the acting director of the Bureau of Gender Affairs as stating that the true incidents of domestic violence in Barbados is unknown since it is a crime that is seldom reported.

[35]   I will proceed to discuss in further the legislation and the applicability of the legislation under my state protection analysis but I would note that this document does go on to describe incidents of domestic violence, the prevalence of it in the country and therefore madam I find that your fear is, is a well founded one.

[37]   In particular with respect to the issue of state protection, I note that Item 2.1 the US Department of State report indicates that there is legislation in place to deal with domestic violence and incidents of rape and maltreatment of partners in Barbados.

[38]   I note that Item 2.1 states that the law prohibits domestic violence and provides protection to all members of the family including men and children.

[40]   The law applies equally to marriages and to common law relationships. The law empowers police to make an arrest after receiving a complaint, visiting the premises and having some assurance that a crime was committed and police made numerous arrests for domestic violence, penalties depend on the severity of the charges and range from a fine for first time offenders unless the injury is serious up to the death penalty for cases resulting in death of a victim.

[41]   It states that victims may request restraining orders which the courts often issue. The courts may sentence an offender to jail for breaching such an order. Violence…nevertheless it does go on to state that violence and abuse against women continue to be significant social problems. Police have a victim support unit but reports indicated the services provided were inadequate.

[42]   The same DOS report does state that there were public and private counselling services for victims of domestic violence, rape and child abuse. The government provided funding for a shelter for women who had faced violence, the shelter also served victims of human trafficking and other forms of gender based violence.

[43]   In making its assessment the panel must assess whether or not the state protection in Barbados is operationally adequate. It is not enough to just look at efforts that are being made. The panel must assess whether or not there is an operationally adequate level of protection for you in your country.

[44]   The panel notes that you described in your narrative in detail and again today in testimony the interactions that you had with the police. I note that your statements today were very consistent with the statements you made in your basis of claim form narratives.

[45]   You state that in your interactions with the police the response was not fruitful. You state that in the last incident that you had a male and female police officer come to you and suggest that you throw a pot of boiling water on the agent of persecution as a solution.

[46]   You also state that in your dialogue with a police officer about a restraining order they indicated to you that they would get back to you and nothing further came of it.

[47]   You described as well seeking that charges be pressed against XXXX(ph) in the fall of 2017 and that the police escorted you and him in the same police vehicle wherein he was verbally accosting you for charging him, the matter did go to court, however nothing came of it even though you followed up and tried and did appear at the court.

[48]   You stated today that you sought assistance from three different police stations that you’d gone to the police if you were to estimate more than twenty times, that you tried to call them and seek help from them over a period of a number of years.

[49]   The panel has bore this in mind in reviewing Item 5.5 which is a detailed summary of what is happening on the ground with police efforts in Barbados. I’m going to read out what I have noted from this document.

[50]   It states that in Item 5.5 that the IDP report notes that there has recently been an attempt to improve the inadequacies of data collection on domestic violence. Through the creation of a family conflict intervention unit designed to respond to and record more detailed information on domestic violence.

[51]   The same source adds that the unit was established by the police force in June 2013 and that as a result detailed data on domestic violence is limited only to cases reported from June 2013 onwards. It goes on to state that there were two hundred and twenty cases of domestic abuse reported to the Family Conflict Intervention Unit.

[52]   In November 2016 a Barbadian newspaper The Daily Nation reported that incidents of domestic violence are on the rise noting the police logged four hundred and thirty five reports of domestic violence cases between January 1st and October 31st 2016, a slight increase over four hundred and twenty nine cases reported in 2015.

[53]   The same RIR indicates that there is legislation in place to address marital rape and domestic violence. There are also amendments to the domestic violence protection orders act that was introduced in 2016.

[54]   I note that this item is also, this legislation is also made, there’s a reference made to it in Item 5.6 before the panel.

[55]   The…under the state protection and police segment of this item the panel notes that the following is stated. It adds that victims may request restraining orders which the court often issued and the courts may sentence an offender to jail for breaching such an order.

[56]   According to the IDP report there is no government run shelter in Barbados for victims of domestic violence.

[57]   However sources note that the government provided a subvention to the Business and Professionals Women’s Club of Barbados to run a shelter for abused women which is the only shelter available to abused women in Barbados. According to the IDP report the Barbados government is the shelter’s main source of funding.

[58]   With respect to the police according to Freedom House, police responsiveness is often slow and inadequate in cases of violence against women. Country reports 2015 similarly states that there are several reports that police did not responds promptly or adequately to complaints of sexual assault and domestic violence.

[59]   Barbados today reports that police are reluctant to respond to cases of domestic violence. It indicates that there is a victim support unit within the police force.

[60]   According to the same source this unit consists of civilian volunteers and offers assistance primarily to female victims of violent crimes but reports indicated services provided were inadequate.

[61]   Sources also note the existence of a police family conflict unit. The IDP report explains that this unit was established due to a perceived need to sensitize officers responding to family and domestic violence cases. It reported that police were receiving training on domestic violence.

[62]   With respect to support services there is reference to shelters that offer psychological counsellors, intervention services. Of note is that at the final page of this report it states that there was a crisis center and twenty four hour hotline established as a conduit for the shelter for battered women.

[63]   However the same source states that the walk in crisis center was closed in October 2014 due to a reduction in fonds. There is a service alliance, violent encounters, a non profit organization.

[64]   According to the information before the panel this foundation records and monitors incidents of domestic violence and provides free counselling and legal advice, operates a hotline and tries to raise awareness.

[65]   After assessing all of this information madam and taking into consideration your own personal interaction with the police and authorities in Barbados.

[66]   The panel finds that you testimony which is found to be credible in combination with the information that we have on the adequacy of the enforcement services in Barbados leads the panel to determine that you have in your circumstance discharged the onus of demonstrating with clear and convincing evidence that operationally adequate state protection would not be forthcoming to you.

[67]   In reaching this determination the panel is mindful of the added services that may be present in Barbados. However it is clear that there is an ongoing lack of effectiveness in terms of the services provided by the police in Barbados.

[68]   The panel notes that the reports are consistent with one another in Item 2.1 and Item 5.5 and others that while there are efforts being made the services provided are deemed to be inadequate from the police and that there isn’t always responsiveness on their part.

[69]   Taking this into consideration madam with your own personal interactions with the police I find that you have discharged the onus of demonstrating that operational adequate state protection would not be forthcoming to you in Barbados.

[70]   With respect to an internal flight alternative, I have bore in statement madam your, bore in mind your statement that you know that Barbados is small and that you’ve lived in a different, that you’ve lived in different locations and tried to seek protection from different police stations.

[71]   I note that according to Item 1.3 of the national documentation package Barbados is a very small country. The square kilometers are four hundred and thirty in total. The population is estimated at less than three hundred thousand people as of July 2018.

[72]   Given madam the small size of the country and the ongoing threats being issued to you through various people from XXXX(ph) which demonstrate a clear continued interest and determination to find you, his threat that he will locate you and kill you if you were to return to Barbados.

[73]   I find that you have demonstrated that there would not be a viable internal flight alternative for you that would be safe in Barbados given the small size of the country making it very easy for XXXX(ph) to locate you should you try to relocate throughout the country and his past efforts and abilities to continually find you, harass you and abuse you on an ongoing basis.

[74]   In conclusion I find madam that you have demonstrated that you have established your evidence on a balance of probabilities. I note that you have indicated that your children have also been abused and threatened by him. I find therefore that you have established a well founded fear of persecution on your own behalf but also on their part.

[75]   I finally note as well that you have met the onus of demonstrating that you meet the definition of a Convention refugee.

[76]   That you have established the components of Section 96 and established that there is a serious possibility of persecution for you on the basis of your membership in a particular social group that is on the basis of your gender and as a woman who is fearful of domestic violence, for your children as members of your family as well.

[77]   I therefore find madam that you are all Convention refugees and I accept your claims.

[78]   Thank you. We are concluded.

———- REASONS CONCLUDED ———-

Categories
All Countries Jordan

2020 RLLR 147

Citation: 2020 RLLR 147
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2020
Panel: Kari Schroeder
Counsel for the Claimant(s): Hachem Hassan Fawaz
Country: Jordan
RPD Number: VC0-02662
Associated RPD Number(s): VC0-02663
ATIP Number: A-2021-01106
ATIP Pages: 000190-000203

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] (the “principal claimant”) as a stateless Palestinian and her son [XXX] (the “minor claimant”) as a citizen of Jordan, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

[2]       As the claimant’s allegations stem from gender-based violence and discrimination, I have applied the Chairperson’s Gender Guidelines in rendering a decision.[2]

ALLEGATIONS

[3]       The following is a brief synopsis of the claimants’ allegations.

[4]       The principal claimant was born in Saudi Arabia to Palestinian parents. The minor claimant was born in Saudi Arabia to the principal claimant and a Jordanian man. The principal claimant has been divorced from her Jordanian husband since 2011. In Saudi Arabia, the principal claimant suffered from various forms of discrimination due to her gender, her statelessness and her marital status.

[5]       The principal claimant obtained a [XXX] in [XXX] from [XXX] in Syria in 2004. She married her husband in 2007. She worked as a [XXX] in Saudi Arabia from 2005-2018. She was subjected to sexual harassment, employment discrimination and attempted sexual assault by her employer.

[6]       During the marriage, the claimants both suffered repeated physical and emotional abuse. The principal claimant was able to leave her husband and obtain a divorce. The ex-husband married another woman and provided little to no support for the claimants. He visited the minor claimant occasionally but was critical and abusive. He repeatedly threatened to take the minor claimant to Jordan to live with him. These threats intensified when the ex-husband learned that he might have to leave Saudi Arabia permanently. He informed the principal claimant that he would be leaving Saudi Arabia and returning to live in Jordan, and that he had decided to take his son with him. Fearing that she would lose her son, the principal claimant decided to leave Saudi Arabia and came to Canada in [XXX] 2018.

[7]       The principal claimant fears that if she returns to Saudi Arabia, she will continue to face discrimination and harassment as a woman. She also fears that her ex-husband will follow through on his plans to kidnap her son and force him to live in Jordan.

DETERMINATION

[8]       I find the principal claimant is a Convention Refugee pursuant to section 96 of the Act.

[9]       I find the minor claimant is not a Convention Refugee or person in need of protection pursuant to section 96 or section 97 of the Act.

ANALYSIS

Identity

[10]     I am satisfied that the claimants are not citizens of Saudi Arabia even though they were both born in that country. Birth in Saudi Arabia does not entitle a person to citizenship; it is granted only if a person’s parent is a Saudi citizen.[3]

[11]     The minor claimant’s identity as a national of Jordan has been established through a certified copy of his passport. He acquired this citizenship through his biological father. I am satisfied that the minor claimant is a citizen of Jordan and no other country.

[12]     The principal claimant is a stateless Palestinian. She has established her identity through a temporary passport from the Palestinian Authority as well as a travel document from Egypt. Both claimants also have Saudi Arabia resident cards.

Credibility

[13]     The principal claimant was a credible witness. She testified in a straightforward manner and offered spontaneous details without being prompted. At no point did I find she was evading answering my questions or embellishing her responses. I have several documents before me to support her allegations, including proof of her profession as a [XXX], proof of her divorce and copies of text message exchanges between her and her ex-husband. Based on the presumption of truthfulness, the corroborative evidence, and the claimants’ consistent testimony, I accept their allegations as credible. I accept that the claimants were both victims of family violence. I also accept that the claimant faced significant challenges living in Saudi Arabia as a woman and a foreigner, and that she ultimately left the country out of fear that she would lose her son.

Principal Claimant

Potential Exclusion under Article 1(f)(b)

[14]     I have considered whether the principal claimant is excluded under Article 1F(b) for child abduction, however, I find that the principal claimant is not excluded. The panel did not notify the Minister due to the finding, upon review of the evidence, that the principal claimant could likely rely on the defence of imminent harm. As explained in greater detail in my reasons, I find the claimants were victims of domestic violence in the past, that the principal claimant left Saudi Arabia out of imminent concern for her son’s well-being, and that these findings are clearly determinative of the exclusion issue.

[15]     In applying Article 1F(b) the focus is on whether the acts could be considered crimes under Canadian law.[4] In this case the relevant provision is the offence of child abduction under Section 283(1) of the Criminal Code, which states:

Abduction

283 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

  • an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
  • an offence punishable on summary conviction.[5]

[16]     Further, Section 285 provides for a defence of imminent harm to Section 283(1). Section 285 states:

No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.

[17]     In Mendez, the Ontario Court of Appeal considered the purpose and intent of the 1993 amendments to the Criminal Code which set out the current version of the imminent harm defence.

Bill C-126 amends s. 285 so that the accused will also have a defence if that person took the child in the course of “escaping from danger of imminent harm.” This amendment is intended to create a defence where a person leaves a physically abusive marital relationship and takes along the children. A battered woman should not have to choose between staying with her abuser, leaving her children with him, or escaping the violence with the children but running the risk of a charge of parental child abduction. The amendment is not, however, intended to create a broad defence.[6]

[18]     In this case, the principal claimant could not take her son out of Saudi Arabia without her ex-husband’s permission. Even though the minor claimant resided fully with his mother, the minor claimant’s residency in Saudi Arabia depended entirely on his father’s sponsorship. Therefore, if the minor claimant wanted to leave the country, his father had to apply for an exit visa for him. The principal claimant testified that she had been trying to leave the country with the minor claimant, and that it took a lot of convincing before he finally agreed to allow her to take the minor claimant to the United States for a [XXX] conference. However, unbeknownst to the ex-husband, the principal claimant simultaneously applied for a Canadian visa, as her ultimate intention was to claim refugee protection in Canada. Therefore, although the father technically consented to his son leaving the country, he was unaware of what he was consenting to, and I find she did not obtain the father’s full consent to take her son out of Saudi Arabia.

[19]     However, the facts of this case give rise to the defence of imminent harm. The principal claimant testified to a long-standing pattern of abuse against the claimants through the duration of the marriage and beyond. During the father’s sporadic visits with his son, he was physically and emotionally abusive. As a follower of a strict interpretation of Islam, he became angry with his son when his hair was too long. On one occasion he hit the minor claimant for listening to music that was ‘forbidden.’

[20]     Moreover, the ex-husband consistently threatened to take the minor claimant away from her, and to take him out of Saudi Arabia to live with him in Jordan. The principal claimant, as a woman in Saudi Arabia with very few legal rights, even regarding her own child, would have no recourse to stop this from happening. She has no status in Jordan and would not be able to go to that country to protect her son from further abuse. Further, I find that if the father did follow through on his threat to remove the minor claimant from his mother’s care, the minor claimant would continue to experience physical and emotional abuse at the hands of his father. Even if the father did not follow through on his threats to remove the minor claimant from Saudi Arabia, the minor claimant would likely be forced to live with his father in Saudi in the absence of his mother. Therefore, the principal claimant was left with the choice to take her son out of the country, or leave him behind and risk not only permanent separation from him but leaving him with his abusive father. In my view this is precisely the type of scenario contemplated in Mendez.

[21]     As a result, I find that the defence of imminent harm does apply to the principal claimant’s actions. I have found the principal claimant to be credible in terms of the mistreatment she and the minor claimant suffered at the hands of her ex-husband. Saudi Arabian laws are inherently persecutory towards women and there are no laws protecting women and children from domestic violence. I am satisfied on the evidence that the imminent harm defence applies in the particular circumstances of the principal claimant. I therefore find that there are no serious reasons for considering the principal claimant excluded under Article 1F(b) for child abduction.

Countries of Former Habitual Residence (CFHR)

Egypt

[22]     I find that Egypt is not a CFHR in this case. Although the claimant is in possession of an Egyptian travel document, she has never resided in that country. Rather, she pursued an online [XXX] through an Egyptian university while residing in Saudi Arabia. Although she did visit Egypt frequently to write exams, she never had de facto residence in that country. The principal claimant testified that the longest period of time she ever remained in Egypt was for one month, and that she lived in a university dorm. She never had a fixed address. Other visits to the country were brief, lasting a matter of days. On many occasions she would leave Saudi Arabia in the morning, write her exam in Egypt, and then fly back to Saudi Arabia on the same night. During the entire period, she maintained a residence, employment and her son’s schooling in Saudi Arabia. On the evidence I am satisfied that Egypt is not a CFHR.

Syria

[23]     The principal claimant resided in Syria for a period of 8 years while she attended [XXX] school. She testified that she had a student residency permit and lived in that country as a [XXX] during the entirety of her education. I am satisfied that Syria is a CFHR in this case.

Saudi Arabia

[24]     The principal claimant also has de facto residence in Saudi Arabia. She was born in that country, and resided there for the majority of her life with the exception of her eight years in Syria. She attended school, worked as a [XXX] and raised her son in that country. I find that Saudi Arabia is a CFHR in this case.

Well-founded fear of persecution

[25]     In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities, he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any and all of his or her other countries of former habitual residence.[7]

[26]     I find that the principal claimant meets this test. As explained in more detail below, the principal claimant has established a well-founded fear of persecution in Saudi Arabia. Further, she cannot return to her other CFHRs, which in this case is Syria. As the principal claimant’s student residency expired in Syria in 2004, and she no longer has any status in that country, I am satisfied that the principal claimant is unable to return to Syria.

[27]     In terms of her fear of returning to Saudi Arabia, the principal claimant testified to the enormous challenges she faced as a woman, a stateless person, and a single, divorced mother. As a female [XXX] she experienced repeated sexual harassment from her male clients. She was subjected to an attempted rape by her male supervisor. She was not able to drive due to her gender. Beginning in Grade 4, she was forced to wear a full length abaya to cover her body, hair and face, which she was adamantly opposed to but powerless to argue against. She testified that as a woman, she was unable to move freely about, as the law dictates that a male guardian must accompany her in any public setting. Further, even though the principal claimant was divorced from her husband, she experienced constant threats from him. She testified that now that he knows she has made a refugee claim in Canada, if she returns, the punishment against her “would be multiplied.”

[28]     I find that the principal claimant has established a nexus to the Convention Ground of membership in a particular social group, namely as a woman fearing gender-based persecution. The laws and customs of Saudi Arabia dictated everything from her manner of dress to her mode of transportation. As a non-citizen, the principal claimant also faced further problems that women with citizenship do not. For example, whereas women are now able to drive in Saudi Arabia, women without citizenship cannot. She experienced many years of domestic violence and did not have the right to prevent her ex-husband from taking her son away. As will be discussed, the law in Saudi Arabia regulates many aspects of women’s lives in the name of religion, including who they can marry and whether and where they can work, study or travel. The objective evidence before me also support’s the principal claimant’s allegations.

[29]     Saudi Arabia is a deeply patriarchal society that severely restricts the rights and freedoms of women. Women are not considered to be full, independent or autonomous persons with agency. They are effectively rendered legal minors.[8] For example, a woman’s testimony in court is weighed as half of that of a man.[9] A report by Americans for Democracy & Human Rights in Bahrain and the Bahrain Institute for Rights and Democracy explains the situation for women in this way:

Saudi Arabia’s male guardianship system is inextricably related to broader understandings of women’s places in Saudi society. The “ideal Saudi woman” is understood to be an “obedient wife and mother, educated as her family permits, segregated from gender mixing unless necessary, and entrusted with preserving the Islamic morality and traditional values promoted by the Saudi state.” In this way, the ideal Saudi woman is meant to be dependent on a man in the family rather than be the head of a family. This understanding of a woman’s role in the family and in society underpins the level of control men have over women, particularly over their wives and daughters. For example, this level of control allows a father to declare a run-away daughter to be “disobedient,” and to obtain the assistance of the police in returning his “disobedient” daughter to his care.[10]

[30]     Freedom House reports that women are subject to “extensive legal and societal discrimination, most notably through the guardianship system, in which every woman must rely on a close male relative to approve basic activities.”[11] According to Amnesty International, women are required to have permission from their male guardian — their father, husband, brother or son — to enrol in higher education, seek employment, travel or marry.[12] This source also states that women are inadequately protected against sexual and other forms of violence. Human Rights Watch adds that women may be required to seek guardian consent to access healthcare, obtain a passport or be discharged from prison.[13] In another report, Human Rights Watch maintains that recent gender-related reforms in Saudi Arabia are partial, incomplete and in some cases, nullified by the guardianship system, which remains largely intact.[14] This is echoed by Americans for Democracy & Human Rights in Bahrain and the Bahrain Institute for Rights and Democracy who state that the Saudi Arabian government has not demonstrated the necessary political will to see reforms through and has failed to fully implement and enforce reform.

[31]     The Department of State (DOS) finds that widespread societal exclusion enforced by, but not limited to, state institutions restricts women from using many public facilities.[15] It states that the law requires women to sit in separate, specially-designated family sections. They often cannot consume food in restaurants that do not have such sections. According to the DOS, women risk arrest for riding in a private vehicle driven by a male who is not an employee (i.e. a hired chauffeur or taxi driver) or a close male relative. Furthermore, cultural norms enforced by state institutions require women to wear an abaya in public. The DOS reports that women have unequal marital, inheritance, divorce, child custody, citizenship, political and property rights.

[32]     Women in Saudi Arabia do not have rights equal to that of men. In this case, the principal claimant’s freedom to make decisions about her movement, education, employment, healthcare, travel, marriage, and clothing are restricted by custom and the guardianship system in Saudi Arabia.

[33]     Not only do the conditions in Saudi Arabia not afford women with basic rights, women’s ability to make their own decisions about issues central to their lives is seriously hampered. This represents serious, sustained and systematic limitations on fundamental issues in one’s life that amount to persecution. The principal claimant seeks to live free of gender norms in Saudi Arabia. Based on the totality of the evidence, I find that the principal claimant would face a serious possibility of persecution as a woman in Saudi Arabia.

State Protection

[34]     In terms of state protection, I do not find that it would be available to the principal claimant since the state enforces these violations of human rights and fundamental freedoms.

Internal Flight Alternative

[35]     I also do not find that the principal claimant could live elsewhere in the country since the government enforces the persecutory laws throughout the country.

Minor Claimant

[36]     The minor claimant is a citizen of Jordan, and I have considered whether he has a well-founded fear of persecution in that country. I have already found that the minor claimant would face an imminent harm in Saudi Arabia from his father, however, he is not a citizen of that country and I have therefore not assessed whether he has a well-founded fear in that country. The principal claimant alleges that her son faces a risk in Jordan, as he may have to live in that country with his abusive father. She also argues that she would be permanently separated from her son, as she does not have status in Jordan and would not be able to accompany him to that country.

[37]     The current location of the minor claimant’s father is not clear from the evidence. The principal claimant testified that she has not spoken to her ex-husband in about a year. She believes he still lives in Saudi Arabia, as he remarried and has another family there, and he previously sent her messages from his Saudi Arabia phone number, however, the principal claimant did hear from a mutual friend that he had also set up a business in Jordan. He also repeatedly told the principal claimant that he would be relocating to Jordan. Ultimately the principal claimant does not know with certainty in which country her ex-husband resides full­ time.

[38]     In this case then, the minor claimant would be returning to Jordan, a country that he has never lived in. His family there consists of his father, who may or may not live in the country full-time, and his elderly grandmother. The principal claimant alleges that she believed that her ex-husband would remove her son from her care, simply as a way to torment her, however, that he ultimately has shown no interest in raising for or caring for the child.

[39]     I have considered the principal claimant’s arguments regarding family separation and am aware that the minor claimant is an [XXX]-year old boy who would be returning to a country he has never lived in, to face an uncertain and unknown situation. However, I find that the claimants have not established with sufficient evidence that the minor claimant meets the definition of a Convention Refugee or person in need of protection. There is insufficient evidence to show that he would be forced to live with his abusive father, as it is not clear that the father even lives in the country. Likewise, there is insufficient evidence to show what the minor claimant’s situation would be if his father was not in the country, for example, that there would be no long-term or foster care available to a minor without family to care for him. There is insufficient evidence to establish that he would be an ‘abandoned child’ in the context of the facts in Patel.[16] I have considered the objective evidence regarding child abuse in Jordan, and agree that there are serious gaps in the legal protection afforded to children who are abused by family members.[17] However, there is insufficient evidence to establish that this would be, on a balance of probabilities, the situation facing the minor claimant. Further, the objective evidence is silent on the treatment of unaccompanied children in Jordan. While I am extremely sympathetic to the claimants’ situation, and the humanitarian and compassionate factors that arise from this case, without clearer evidence to establish the risks the minor claimant would face, the principal claimant has not met her onus of establishing that the minor claimant would face a forward­ looking risk under section 96 or 97.

[40]     I am mindful in this case of the court’s comments in Chavez Carrillo:[18]

[15] It is established that if an applicant has the citizenship or nationality of a country where he or she has no well-founded fear of persecution, protected person status will be denied…. This Court has held on several occasions that there is no concept of family unity incorporated into the definition of Convention refugee.

            …

[17]     However, the human aspect of this case is clear, and it cannot be ignored. At first glance, the RPD’s decision seems to have as a direct consequence the separation of the applicant from his mother. In the event of a departure, the mother will have to choose between allowing her son to leave by himself for the United States and accompanying him to a country where she does not benefit from any legal status.

[18]     Fortunately, the solution to this problem can be found in subsection 176(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]. It provides that “[a]n applicant may include in their application to remain in Canada as a permanent resident any of their family members. Therefore, when the applicant’ s mother files an application for permanent residence (if she has not already done so), she will certainly include the applicant as a family member. The mother and her minor son will surely not be separated merely because he was not granted refugee status and she was.

[41]     Based on the evidence before me, I find that the minor claimant would not face a serious possibility of persecution in Jordan as a minor child, nor would he face, on a balance of probabilities, a forward looking risk of torture or personalized risk to life or risk of cruel and unusual treatment or punishment.

CONCLUSION

[42]     I find that the principal claimant is a Convention Refugee pursuant to section 96 of the Act, and the Board therefore accepts her claim.

[43]     I find that the minor claimant is not a Convention Refugee or person in need of protection pursuant to the Act, and the Board therefore rejects his claim.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] IRB Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada,March 1993, updated November 1996, and R. v. Lavallee, [1990] 1 S.C.R. 852.

[3] Exhibit 3, National Documentation Package (NDP), Saudi Arabia, March 31, 2020, Item 3.1 Response to Information Request (RIR) SAU105183.E.

[4] Vlad, Anghel v. M.C.I. (F.C., no. IMM-1800-06), Snider, February 15, 2007, 2007 FC 172 at para. 22; M.C.I. v. Diaz, Paola Andrea Pulido (F.C., no. IMM-4878-10), Phelan, June 21, 2011, 2011 FC 738 at para. 12; Radi, Spartak v. M.C.I. (F.C., no. IMM-2928-11), Near, January 5, 2012, 2012 FC 16 at para. 23.

[5] Criminal Code (R.S.C., 1985, c. C-46).

[6] R v. Mendez, (1997) 32 O.R. (3d) 67.

[7] Thabet v. MCI, [1998] 4 FC 21, 1998 CanLll 9063 (FCA).

[8] Exhibit 3, NDP, Item 5.2.

[9] Exhibit 3, NDP, Item 5.1.

[10] Exhibit 3, NDP, Item 5.5.

[11] Exhibit 3, NDP, Item 2.4.

[12] Exhibit 3, NDP, Item 2.2.

[13] Exhibit 3, NDP, Item 2.5.

[14] Exhibit 3, NDP, Item 5.2.

[15] Exhibit 3, NDP, Item 2.1.

[16] Canada (Minister of Citizenship and Immigration) v. Patel, 2008 FC 747 (CanLII), [2009] 2 FCR 196

[17] Exhibit 3, NDP, Jordan, March 31, 2020, Item 2.1.

[18] Chavez Carrillo 2012 FC 1228.

Categories
All Countries Mexico

2020 RLLR 131

Citation: 2020 RLLR 131
Tribunal: Refugee Protection Division
Date of Decision: September 29, 2020
Panel: S. Seevaratnam
Counsel for the Claimant(s): Jared Will
Country: Mexico
RPD Number: TB9-08058
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000093-000102

REASONS FOR DECISION

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

[2]       The claimant alleges she fears returning to Mexico due to her imputed and real political opinion and her membership in a particular social group, a woman.

[3]       The panel has also carefully considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, prior to assessing the merits of this claim.[2]

ALLEGATIONS

[4]       The details of the allegations are outlined in the claimant’s Basis of Claim (BOC) Form and the amended Narrative.[3] A synopsis of the allegations are as follows.

[5]       The claimant testified that she grew up in a family which supported the Institutional Revolutionary Party (PRI), and she was introduced to the party by family friends around 2012.[4] She officially joined the party in 2016.[5] She further testified that the party was actively recruiting young people in order to expand its support base. They were expected to follow the political line of [XXX],[6] the former Governor of Hidalgo from 2005 – 2011.[7]

[6]       Through her sister, [XXX], and brother-in-law, [XXX][8] she was introduced to high level politicians both at the Federal and State levels. She gradually became a trusted member of the PRI inner circle.

[7]       The claimant was in a romantic relationship with [XXX], the brother of [XXX], from 2013 until 2016. The claimant testified that the [XXX] brothers were wealthy, influential, and powerful.

[8]       The claimant explained that during and following their intimate relationship, she discovered “many unsavoury things about [XXX]. He is a very corrupt person and made his money largely by diverting public fonds he owns and controls a number of newspapers but hides his interest in the papers, as he does in other businesses that he controls. He uses other peoples’ identities and operates shell businesses that he controls.”[9] The claimant detailed numerous other instances of corruption and extravagant spending diverting federal public fonds.

[9]       From [XXX] to [XXX] 2016, the claimant worked on the social media team for [XXX] the PRI candidate in Hidalgo.[10] The claimant explained that she knew [XXX] socially through events at her sister’s home. She further explained that [XXX] was a close friend of her brother-in-law and he played a significant role at their wedding. Thus, when [XXX] was elected the [XXX] of Hidalgo in [XXX] 2016, she was disappointed that she was not rewarded with a job in the state government. She was instructed to pursue employment opportunities with his private secretary, [XXX]. He pressured the claimant to engage in an intimate relationship which she refused.[11] The claimant knew as a member of the inner trusted circle within the PRI that [XXX] and [XXX] had been lovers.[12] She explained that this was not common public knowledge and his sexual orientation (bisexual) could ruin his political career.

[10]     In 2017, the claimant became a victim of sexual harassment, theft, and stalking. She retained a lawyer and lodged a complaint with the office of the Attorney General, City of Hidalgo. After about a year, she was advised by her lawyer to drop the charges since she was being pursued by state and federal government officials. She suspected [XXX] or [XXX] as the perpetrators. Fearing for her life, the claimant fled to Canada and initiated a refugee claim.

DETERMINATION

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

IDENTITY

[12]     In Exhibit 1, the claimant has submitted a copy of her passport issued by the United Mexican States, which was certified as a true copy by an immigration officer on [XXX] 2019.[13]

[13]     In Exhibit 7, the claimant has submitted a copy of her birth certificate,[14] her membership card with the PRI,[15] and her record of employment with the government of Mexico.[16]

[14]     The panel finds the claimant to be a national of Mexico. The panel further finds that the claimant was an active member of PRI and was employed with the government of Mexico.

CREDIBILITY

[15]     The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado[17] 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]     The claimant provided clear and detailed testimony regarding her experiences in Mexico and her involvement with the PRI and its inner circle. Her testimony was consistent with her Basis of Claim (BOC) Form,[18] her amended BOC narrative,[19] her personal documents,[20] as well as country condition documents provided by counsel,[21] and the National Documentation Package (NDP).[22]

[17]     Having considered the totality of the evidence, the panel finds the claimant to be a credible and trustworthy witness. Accordingly, the claimant has established her subjective fear.

WELL-FOUNDED FEAR OF PERSECUTION

[18]     Commencing in early [XXX] 2017, the claimant became a victim of an attempted armed robbery; her cell phone was stolen, and she became the subject of a scandal on Facebook where altered nude photos were posted.[23]

[19]     The claimant reached out to her mother for assistance who contacted a lawyer, [XXX]. He made arrangement for the claimant to make a report on [XXX] 2017 with the Attorney General’s Office (PGR, Procuraduria General de la Republica), State of Hidalgo.[24]

[20]     Subsequent to filing the report, the claimant received harassing telephone texts from one of the police officers who was present at the PGR when she initiated her complaint.[25] She stated that she also received “many obscene messages on my cell phone as well as on social media.”[26]

[21]     The claimant feared for her safety and asked [XXX] if he could provide a bodyguard to protect her but he said it was unnecessary.[27]

[22]     In [XXX] 2018, the claimant was followed by a black SUV. The claimant accelerated her vehicle and entered her gated neighbourhood where she resided. She promptly contacted her lawyer, [XXX], to report the incident and obtain an update on the PGR investigation.[28]

[23]     Her lawyer asked the claimant to attend at his office and informed her that senior government officials at both the federal and state levels were instrumental in harassing, defaming, and threatening her. He advised the claimant not to pursue her complaint with the PGR any further.[29] Her lawyer reimbursed all legal fees she had paid to his law firm.[30]

[24]     The claimant suspects that the assailants are retained and their actions are orchestrated by either by [XXX] or [XXX] who are attempting to muzzle her from revealing information she is privy to such as the embezzlement of public federal funds by [XXX] for personal gain and advancement, the sexual orientation of [XXX] (bisexual), his drug use, and his relentless sexual advances towards the claimant, and his belief in “santeria”(witchcraft). The claimant believes that both men are capable of violence and will be vindictive towards her if they suspect the claimant of divulging incriminating information. She explained that they want to maintain their political career and public image since they are both very ambitious and continue to maintain their reign within the PRI apparatus and advance further within the government of Mexico.

[25]     A media report indicates that [XXX] is one of the candidates for mayor of Pachuca in the 2020 elections. The article states that he is the brother of [XXX], the [XXX] of the [XXX] and [XXX].[31]

[26]     The media report dated [XXX] 2019 indicates that [XXX] the right hand man to the [XXX] of Hidalgo, [XXX], is “situated as the likely successor of the [XXX] for the state office”[32] since he has “marketed himself throughout the entire state.”[33] He is poised to run for [XXX] in 2022.[34]

[27]     The panel has carefully reviewed objective, reliable, and current documentary evidence to assess the objective basis for this claim. Both counsel’s country conditions package on Mexico[35] as well as the NDP indicates that the Mexican political arena is seeped in corruption, impunity, and sexism.

[28]     The US Department of State (DOS) Mexico Country Report on Human Rights 2019 states as follows:

There were several reports government entities or their agents committed arbitrary or unlawful killings, often with impunity. Organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials.[36]

[29]     An article titled, “Mexican women in politics: no glittering careers and no power”, states as follows:

Mexican women are also barred from politics through pressure that can include political violence (causing damage to their public image), double workloads that prevent them from achieving a work-life balance and even sexual harassment.[37]

[30]     An article dated September 2019, indicates that “rampant impunity continues to plague Mexico according to a study that shows there has been negligible improvements in prosecution rates over the past year.”[38]

[31]     International Human Rights Program and Pen Canada for freedom of expression has authored an article titled, “Corruption, Impunity, Silence: The War on Mexico’s Journalists.”[39] The article attributes impunity to the failure by the Mexican authorities to “successfully prosecute over 90 percent of the cases brought before them.”[40]

[32]     An article titled, “Unprecedented wave of political violence rocks Mexico”,[41] indicates the following:

In less than 24 hours this month, three women running for office in Mexico were murdered bringing the total number of female candidates assassinated to 17.”[42]

According to Senator Martha Tagle, “these facts revel a serious situation that women in politics are experiencing, and that it is political violence based on gender.”[43]

[33]     The above article sheds light on the role gender violence plays in elections and the specific ways in which women are silenced.[44]

[34]     The panel finds the claimant has established a serious risk of persecution based on her imputed and real political opinion, and her membership in a particular social group, a woman.

STATE PROTECTION

[35]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.[45] To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.[46]

[36]     The claimant testified that she was defamed,[47] but the police failed to investigate and prosecute the matter since they are in collusion with politicians. She stated that both entities are corrupt.

[37]     The US Department of State (DOS) Mexico Country Report on Human Rights 2019 states as follows:

Significant human rights issues included reports of the involvement by police, military, and other government officials and illegal armed groups in unlawful or arbitrary killings, forced disappearance, and torture; harsh and life-threatening prison conditions in some prisons; impunity for violence against human rights defenders and journalists; violence targeting persons with disabilities and lesbian, gay, bisexual, transgender, and intersex persons.

Impunity for human rights abuses remained a problem, with extremely low rates of prosecution for all crimes. The government’s federal statistics agency (INEGI) estimated 94 percent of crimes were either unreported or not investigated.[48]

[38]     An Article titled, “Corruption at a Level of Audacity Never Seen in Mexico”[49] details a scenario similar that of the claimant. It states as follows:

Empowered citizens, transparency laws and a freer media are now exposing the schemes that governors have used to siphon public fonds for their private use. But though the scrutiny has produced mounting evidence of misdeeds, the governors have rarely faced justice.

Governors who like Presidents serve one six-year term, control state legislatures, state auditors and state prosecutors – a dominance that gives them the poser of a modern potentate.

That leaves it to federal prosecutors to pursue wrong-doing but the response has been tepid.

During the more than 70 years that the party (PRI) governed Mexico without interruption, it became synonymous with corruption.

[39]     The panel finds that the claimant fears persecution or serious harm at the hands of the state and federal high ranking and influential politicians; therefore, based on objective and current documentary evidence,[50] and her sworn viva voce evidence, she cannot avail herself of the protection of the authorities. The security forces have failed to protect the claimant.

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”[51] 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.[52]

[41]     The claimant bears the burden of proof to demonstrate that she 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 Mexico.

[42]     The panel identified the Yucatan region as a potential place for internal relocation because the Mexico Peace Index 2019 identified this region as being the least impacted by crime.[53]

[43]     The claimant testified that the [XXX] brothers own property in the Yucatan region and their influence and power reaches throughout Mexico.

[44]     The panel finds that an IFA is not reasonable given the particular profile of the claimant who is a young single woman being pursued by high level state and federal PRI politicians specifically [XXX] and [XXX] who yield enormous power and influence nationally. Since the claimant fears persecution or serious harm at the hands of individuals who are synonymous with corruption and the state, she will not be able to internally relocate to escape that risk.

CONCLUSION

[45]     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 she were to return to her country of nationality, Mexico, today.


[1] The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).

[2] Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

[3] Exhibit 2, Basis of Claim (BOC) Form, Narrative, received March 27, 2019; Exhibit 5, BOC Narrative Amendments, received February 4, 2020.

[4] Exhibit 5, BOC Narrative Amendments, received February 4, 2020, lines 16 – 17.

[5] Exhibit 7, Personal Documents, received March 13, 2020, item 2, at pp. 3 – 4.

[6] Exhibit 5, BOC Narrative Amendments, received February 4, 2020, lines 22 – 25.

[7] Ibid., lines 41 – 44.

[8] Exhibit 7, Personal Documents, received March 13, 2020, item 3, at pp. 5 – 7.

[9] Exhibit 5, BOC Narrative Amendments, received February 4, 2020, lines 57 – 61.

[10] Ibid., lines 33 – 35.

[11] Ibid., lines 96 – 102.

[12] Ibid., at pp. 114 – 116.

[13] Exhibit 1, Package of information from the referring CBSA/CIC.

[14] Exhibit 7, Personal Documents, received March 13, 2020, item 1, at pp.1 – 2.

[15] Ibid., at pp. 3 – 4.

[16] Ibid., items, 4 – 11, at pp. 8 – 47.

[17] 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.).

[18] Exhibit 2, BOC Form, Narrative, received March 27, 2019.

[19] Exhibit 5, BOC Narrative Amendments, received February 4, 2020.

[20] Exhibit 7, Personal Documents, received March 13, 2020, 45 items, 230 pages.

[21] Exhibit 6, Mexico Country Condition, received March 13, 2020, 27 items, 88 pages.

[22] Exhibit 3, National Documentation Package (NDP) for Mexico (March 31, 2020).

[23] Exhibit 7, Personal Documents, received March 13, 2020, item 30, at p. 176.

[24] Ibid., items 12 – 14, at pp. 48 – 64.

[25] Exhibit 5, BOC Narrative Amendments, received February 4, 2020, lines 205 – 209.

[26] Ibid., lines 210 – 211.

[27] Ibid., lines 214 – 216.

[28] Ibid., lines 234 – 237.

[29] Ibid., lines 245 – 250.

[30] Exhibit 7, Personal Documents, received March 13, 2020, items 19 – 20, at pp. 106 – 117.

[31] Ibid., item 39, at p. 202; item 41, at p. 208; item 42, at p. 215.

[32] Ibid., item 29, at p. 172.

[33] Ibid., item 42, at p. 213.

[34] Ibid., item 45, at p. 230.

[35] Exhibit 6, Mexico Country Condition, received March 13, 2020, 27 items, 88 pages.

[36] Ibid., item 2.1. s. Executive Summary.

[37] Exhibit 6, Mexico Country Condition, received March 13, 2020, 27 item 12, at pp. 40 – 41.

[38] Ibid., item 22, at p. 72.

[39] Ibid., item 8, at p. 28.

[40] Ibid., at p. 31.

[41] Ibid., item 27, at p. 87.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

[46] 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.

[47] Exhibit 7, Personal Documents, received March 13, 2020, item 30, at pp. 173 – 177.

[48] Exhibit 3, NDP for Mexico (March 31, 2020), item 2.1., s. Executive Summary.

[49] Exhibit 6, Mexico Country Condition, received March 13, 2020, item 26, at p. 83.

[50] Exhibit 3, NDP for Mexico (March 31, 2020); Exhibit 6, Mexico Country Condition, received March 13, 2020.

[51] Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

[52] 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.).

[53] Exhibit 3, NDP for Mexico (March 31, 2020), item 1.5, at pp. 9 – 11.

Categories
All Countries Pakistan

2020 RLLR 117

Citation: 2020 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Megan Kammerer
Counsel for the Claimant(s): N/A
Country: Pakistan
RPD Number: VB9-05568
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000213-000227

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] as a citizen of Pakistan who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

[2]       In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution[2], which offers guidance in recognizing women as members of a particular social group and also with respect to other gender specific issues present in this claim.

ALLEGATIONS

[3]       The claimant is a former permanent resident of Canada who alleges that she has been emotionally and physically abused by her ex-husband in Pakistan. She states that this abuse began in 2014, was related to the claimant’s failure to sponsor her ex-husband to come to Canada, and continued until the claimant left Pakistan in 2016.

DETERMINATION

[4]       I find that the principal claimant has a well-founded fear of persecution on the basis of her gender and is therefore a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5]       I find that the claimant’s identity as a national of Pakistan has been established through her testimony and the supporting documentation filed, including her passport.[3]

Credibility

[6]       When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, there were some significant concerns with credibility. During testimony, the claimant made some inconsistent statements with respect to the abuse that occurred in Pakistan and was unable to adequately explain her delay in submitting her refugee claim. However, I do not find that these problems are significant enough to overcome the presumption of truthfulness.

Statements regarding the abuse

[7]       The claimant testified that she decided to leave her abusive ex-husband in 2016 and fled from Pakistan to Sri Lanka so that she could obtain travel documents from the Canadian High Commission for herself and her children. During an interview at the High Commission in Sri Lanka on [XXX] 2016, the claimant was asked about whether her ex-husband had hurt her “in any way” and whether he had abused her physically or verbally. The claimant replied that her ex-husband had hurt her verbally but not physically. When asked whether she was still in a relationship with him, the claimant replied that her ex-husband “is just not listening to me right now that we would be better off in Canada. His family does not like the way we got married. It is a love marriage.” When asked whether the claimant would continue to attempt to sponsor her husband, the claimant replied “Yes, he says he does not want to go now but he will agree with me and I will sponsor him.”[4]

[8]       During her hearing before me, the claimant testified that her ex-husband had abused her physically on many occasions between [XXX] 2014 and [XXX] 2015 as well as between [XXX] 2015 and [XXX] 2016. She testified that when she left Pakistan in [XXX] 2016 her intention was to leave and divorce her husband.

[9]       When asked about the discrepancy between her testimony and the statements she made to representatives at the Canadian High Commission in Sri Lanka, the claimant explained that she did not understand the question and so that is why she said that her husband only abused her verbally. She explained that when she was at the High Commission she was so upset that she had “no thoughts of my own” and “no idea what I am doing” and had misspoke. She also indicated at that point that she still hoped her ex-husband might change and they might reconcile.

[10]     I accept the claimant’ s explanation with respect to these inconsistencies. I note that trauma can have an impact on memory and understand that a victim fleeing abuse might not have yet full reconciled or decided whether or how to end her relationship. I also note that these statements were made at a time when the claimant was in turmoil, shortly after fleeing from Pakistan and learning that her permanent residency status in Canada might no longer be valid.

[11]     I also note that there are numerous statements in the GCMS notes disclosed by the Minister which are consistent with the claimant’s version of events recounted during testimony and that these statements pre-date her refugee claim, thus strengthening her credibility. For example, during that same interview which took place at the High Commission on [XXX] 2016, the claimant told officials that her husband and his family forced her to stay in Pakistan and that she had to leave the country without them knowing, that her husband first tried to prohibit her from leaving Pakistan in 2014, and that she was only able to obtain his permission to leave Pakistan to travel to Canada for one month in 2015 to go work on his permanent residency application. The official conducting the interview and drafting the note characterized this as “forcible confinement.”[5]

[12]     Likewise, in an interview conducted on [XXX] 2016, the claimant again told officials that “her husband and his family forced her to stay in Pakistan” which caused her to lose her PR status.[6] Similarly, on [XXX] 2016 the GCMS notes read: “Wife seeking to return to Canada in order to divorce and gain full custody of the children. Subject also the intention of pulling her sponsorship. Wife states that she fears the subject as he may try to get to Canada to kidnap the children.”[7]

[13]     These statements are consistent with the allegations of abuse that the claimant has made against her ex-husband and his family, which includes the allegation that her ex-husband and his family would not let her leave the family home.

[14]     Given the claimant’s explanation, as well as the additional statements about the abuse in the GCMS notes that pre-date the claimant’s refugee claim, I do not find that the inconsistent statements made about the nature of the abuse are sufficient to undermine the presumption of truthfulness.

Delay in submitting a refugee claim

[15]     The claimant arrived in Canada on [XXX] 2016 and was provided with a hearing date to appeal the decision that she had not met the residency requirements necessary to retain her permanent residency status. Her hearing before the Immigration Appeal Division took place on November 23, 2017, the claimant did not appear, and her appeal was thus held to be abandoned by way of decision dated December 11, 2017.[8] Despite this, the claimant did not submit a refugee application until [XXX] 2019.

[16]     The claimant testified that she was confused about the time of the hearing before the Immigration Appeal Division, as she had recently moved from Toronto to Calgary, and did not realize the hearing had been set for Eastern Standard Time rather than Mountain Standard Time. She explained that she missed the hearing and that when she received the decision notifying her that the appeal had been abandoned she retained counsel to help her explain why she had missed the hearing and appeal the abandonment decision. She further explained that she last spoke with her lawyer approximately one week ago and that he continues to be in contact with the Immigration and Refugee Board and that he has not yet received a response regarding her missed hearing. She states that she did not submit a refugee claim earlier because she was waiting to receive a response about the missed hearing from the IAD.

[17]     I asked the claimant if she had any corroborating documents from her lawyer regarding the appeal he is allegedly conducting on her behalf. She explained that she had asked her lawyer for a written statement but that he did not provide one. When asked why the claimant did proceed to file the refugee claim given that her lawyer continued to make inquiries with respect to her claim before the IAD, she explained that she needed legal status in order to remain in Canada and to obtain employment.

[18]     I do not accept the claimant’s explanation regarding her delay in submitting a claim for refugee status. I do not find it believable that her lawyer continues to make inquiries with respect to her abandoned IAD claim nearly three years after that claim was held to be abandoned and that she does not possess any documentation which corroborates this.

[19]     The claimant has not provided a reasonable explanation for why she did not submit a refugee claim until [XXX] 2019. However, I am not prepared to find that this delay undermines her credibility with respect to risk and subjective fear to such an extent that her claim must fail. There could be many reasons why a woman in the claimant’s position would not submit a refugee claim promptly.

Conclusion on Credibility

[20]     The claimant was not a compelling witness. She had to be prompted on several occasions to provide detail and at times she was notable to provide a reliable and cohesive account of her actions. Moreover, there were some inconsistencies between the way in which she described the abuse to different officials. However, as is set out in more detail below, her narrative about the abuse that she endured at the hands of her ex-husband and his family is believable and is supported in many different ways by the objective country evidence about Pakistan. Accordingly, I find that the claimant is a credible witness with respect to the allegations of abuse and her assessment of the risks that she would face if she were to return to Pakistan.

Nexus

[21]     The claimant alleges that she has been abused by her spouse. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group, namely female victims of domestic violence.

Potential Exclusion

[22]     The claimant gave birth to her daughter in Canada, but did not have her ex-husband’s permission to travel to Canada with their two sons, who are Canadian citizens. However, as is explained in the reasons that follow, the claimant has a defence pursuant to s. 285 of the Criminal Code[9], given that she has traveled to Canada to protect herself and her children from danger of imminent harm.

[23]     I also note that the claimant obtained a court order from a Canadian court on [XXX] 2018 providing her with sole custody of her three children. The claimant’s ex-husband was served and there is no indication that he responded. The claimant has provided a copy of this court order to me.[10]

[24]     I thus do not find that the claimant could be excluded under Article 1(F)(b) of the Act.

Well-Founded Fear of Persecution and Risk of Harm

[25]     The claimant is a former permanent resident of Canada who alleges that she fears her ex- husband will kill her if she returns to Pakistan.

[26]     The claimant received permanent residency status in Canada in [XXX] 2007, having been sponsored by her brother who lives in Canada. Between 2007 and 2016, she spent time living in both Canada and Pakistan.

[27]     The claimant testified that she met her ex-husband in 2007 in Pakistan and that they got married in Pakistan on [XXX] 2010. The claimant submitted an application to sponsor her ex-husband to become a permanent resident of Canada in [XXX] 2011. The sponsorship application was denied and the claimant initiated an appeal.

[28]     The claimant lived in Canada for various periods of time between her wedding and [XXX] 2014. She testified that when she returned to Pakistan on [XXX] 2014 her ex-husband had changed and he had suddenly become violent. She attributes this change to the fact that she had been unsuccessful at sponsoring him and that the application and subsequent appeal were taking a long time to process.

[29]     The claimant testified that she stayed in Pakistan with her ex-husband between [XXX] 2014 and [XXX] 2015. During this time, she lived with her ex-husband and his family. She testified that during this time he was emotionally and physically violent towards her on many occasions.

[30]     The claimant explained that she lived with her ex-husband and his parents. The claimant testified that his parents did not intervene to assist her. In fact, she says they were also frequently abusive. As explained in more detail below, this allegation is consistent with the objective evidence about domestic violence in Pakistan.

[31]     The claimant testified that during this period her husband refused to allow her to leave the family home. She testified that she attempted to contact the Canadian consulate in Islamabad and they told her they could not intervene because it was a family matter. In order to try to get help, she contacted a friend who called the police. The police visited the family home in approximately [XXX] 2014. When they arrived, the claimant’s ex-husband did not give the claimant permission to speak with them. He told the police that they had had a small misunderstanding at home and there was no need for their assistance. The claimant testified that the police did not try further to assist her and that after they left her ex-husband abused her physically. She says that after this incident she felt more scared to call the police. Again, the claimant’s description of this incident is consistent with the objective evidence on state protection in Pakistan, described more fully below.

[32]     The claimant testified that her ex-husband also abused their children.

[33]     The claimant returned to Canada in [XXX] 2015. She explained that she was able to negotiate with her ex-husband to allow her to leave the country because she told him she needed to make inquiries about the appeal of his permanent residence application. The claimant’s ex­ husband allowed her to travel to Canada for one month but told her she would not be allowed to bring their children with her to Canada.

[34]     The claimant stayed in Canada between [XXX] 2015 and [XXX] 2015. The claimant explained that she did not consider staying in Canada and leaving her husband during this period because her children were still in Pakistan.

[35]     The claimant testified that when she returned to Pakistan in [XXX] 2015 things were fine for about two days. After that, the physical and verbal abuse started again. The claimant estimates that the abuse occurred every other day. The claimant says that she contacted the Canadian consulate and once again they told her to contact the police and the courts in Pakistan to help her resolve this issue.

[36]     At one point the claimant left her husband to go stay with one of her friends. The claimant’s friend came and picked her up when her husband was out and the claimant was home alone. The claimant stayed with her friend for approximately 15-20 days, but says that ultimately her husband found her. She believes that he was able to trace her location using her cell phone because he has a friend who works for a mobile company.

[37]     The claimant returned home with her ex-husband and she testified that for a month or two the relationship was fine but then ultimately the abuse escalated once again. This is consistent with the dynamics of abuse.

[38]     Rather than ask the claimant to specifically describe the abuse that she endured at the hands of her ex-husband and his family, as such questions can often be retraumatizing and are unnecessary, I asked her to describe the impact that the abuse had on her. She explained that it caused her to feel stressed out, was mentally exhausting, and that all that she could think about was how she could escape the situation.

[39]     The claimant learnt she was pregnant again in 2016 and that the baby was a girl. She says that her ex-husband and his family began pressuring her to have an abortion because they wanted another boy. She says that she decided at that point she needed to leave her ex-husband.

[40]     The claimant left Pakistan with her children on [XXX] 2016. She traveled to Sri Lanka so that she could apply for Canadian passports for her children, who had been born in Canada, as well as obtain a valid permanent residency card as hers had expired in [XXX] 2016. She arrived in Canada on [XXX] 2016 and submitted a refugee claim on [XXX] 2019.

[41]     The claimant testified that she is worried that her ex-husband will kill her if she returns to Pakistan. She explained that in her culture “men do not leave things like this” because it “relates to honour.”

[42]     The claimant’s allegations are supported by the objective evidence. In Pakistan, women face direct, cultural, and structural violence through a deeply entrenched system of patriarchy in all aspects of public and private life.[11] The Women, Peace and Security Index 2019/20 places Pakistan at 164 out of 167 countries regarding women’s peace and security in the world. Other sources similarly indicate that Pakistan has been ranked the sixth most dangerous country in the world for women and that rates of violence against women, including domestic violence, are increasing in the country.[12]

[43]     The U.S. Department of State Report addresses domestic violence as one of the significant human rights issues in Pakistan. The report says that no specific law prohibits domestic violence and that domestic violence is widespread. Forms of physical violence including beating, physical disfigurement, shaving of women’s eyebrows and hair, and homicide. Family related disputes can result in death or disfigurement by burning or acid. Women who try to report abuse face serious challenges. Police and judges are sometimes reluctant to take action in domestic violence cases, viewing them as family problems. Authorities routinely return abused women to their abusive family members.[13]

[44]     Studies of domestic violence in Pakistan attribute it to deep-rooted patriarchal norms around femininity and masculinity. Such studies have found that if a wife makes a mistake, disobeys her husband, or is wrong, then the husband is viewed as having the justification to beat her.[14] The evidence also overwhelmingly indicates that in Pakistan women’s freedom of movement is restricted. In most households, women are expected to stay at home when they reach puberty and not allowed to have a job, go outside, or meet anyone. This is exacerbated in situations of domestic violence.[15]

[45]     Studies have found that while physical violence is often the most visible form of violence, subtle forms of psychological violence are probably more common. These include verbally abusive language, criticism, and threats, including threatening to “burn them” or “throw acid” on them.[16] In a study conducted in 2008, researchers found that 100% of women had reported having experienced psychological violence.[17]

[46]     The objective evidence indicates that women often not only face violence from their male partners, but also from their in-laws at home, given the tradition of extended families living together in Pakistan. Domestic violence in Pakistan encompasses broader family violence and includes violence perpetrated by members of the marital family, which has been shown to be extremely common. In fact, co-residence with in-laws has been found to be a driving factor for violence.[18]

[47]     Although the claimant has been living in Canada since 2016, and has not been in contact with her ex-husband during that time, she testified that she is still at risk and that he will punish her because she decided to leave him. She explained that this relates to honour and would be treated as a serious breach. I accept that the claimant’s ex-husband and his family adhere to deeply patriarchal values about the role of women and will punish women who defy this norm. In leaving her husband and taking their children to Canada, the claimant has defied her ex-husband’s assumed authority.

[48]     I find that the claimant faces a significant forward-looking risk of serious harm from her ex-husband should she return to Pakistan. I make this finding based on all the evidence before me, including the claimant’s credible testimony about the ways in which her ex-husband physically and psychologically abused her, as well as objective evidence which indicates that domestic violence is tied to deeply rooted patriarchal norms and that women who are perceived to transgress or challenge those norms are particularly at risk.

State Protection

[49]     In all refugee claims, the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. In this case, the claimant testified that she asked a friend to call the police on her behalf, and that while the police visited her home she did not receive any meaningful assistance. Her ex-husband refused to allow her to speak to the police and told them that they had had a minor family related dispute. The police did not pursue the matter further.

[50]     The claimant’s experiences with state authorities in seeking protection from domestic violence are supported by the objective documentary evidence in the National Documentation Package. The country condition documents indicate that domestic violence crimes are mostly unreported in Pakistan as it is still seen as a private matter and a matter of shame or dishonour. Pakistan has no comprehensive federal law to tackle violence against women. Although some states have passed legislation on domestic violence, these laws are not operationally effective protection mechanisms for victims.

[51]     Sources indicate that the challenges around implementing legislation on domestic violence in Pakistan are “enormous” and that police and judges are reluctant to take action in domestic violence cases as they view these as “family problems.” Sources also indicate that members of the police service are often verbally abusive when reports of domestic violence are made, and that the police are more likely to question the character of the woman than to help her. Rather than taking action to eradicate violence against women, police appear to enforce social norms to ensure that women do not oppose patriarchal rules. Women similarly have problems accessing the judicial system to obtain protection.[19]

[52]     In view of this evidence, I find that state protection for female victims of domestic violence in Pakistan is inadequate. While the authorities have made efforts to address domestic violence through legislation, these efforts have not been effective on the operational level. In this case, the claimant did make an attempt to obtain protection from the police, who did not even take the step of speaking directly with the claimant. The objective country information evidence demonstrates, however, that state protection is rarely available from authorities in Pakistan. I therefore find that the presumption of state protection has been rebutted in the case of the claimant.

Internal Flight Alternative

[53]     The final issue is whether the claimant has a viable internal flight alternative (IFA) in Pakistan. In order to determine whether an IFA exists, I must assess whether there is any location in Pakistan in which the claimant would not face a serious possibility of persecution and whether it would be reasonable to expect her to move there.[20]

[54]     At the outset of the hearing, I proposed Karachi and Islamabad as potential IFA locations for the claimant. The claimant testified that most of her family lives in Canada rather than Pakistan, and that she has no family at all living in Karachi or Islamabad. The claimant has remarried but her current husband lives in Canada and there is no indication that he would return to Pakistan with her. The claimant explained that it would not be easy as a single woman to live alone in one of those cities and that due to lack of support she would not be able to survive.

[55]     I accept the claimant’s testimony on this point and find that it would be objectively unreasonable, in the context of Pakistan, to require the claimant to relocate and live independently as a single woman. The OECD Report on Social Institutions and Gender Index describes how difficult it is for a woman to live alone in Pakistan. Both laws and customs limit the extent to which women can access property and financial resources. Women are discouraged from working outside the home and are often unable to access formal bank accounts because doing so requires two male guarantors. Only 36% of women own phones, compared with 80% of Pakistani men, and there are reports that women have been killed simply for owning phones, due to the social stigma around interaction with unrelated males.[21]

[56]     The claimant would be separated, single, and without family support in an IFA location. Given the objective evidence, the claimant would be at risk and would struggle to be able to support herself and open a bank account. In such circumstances, I do not find that relocation to an IFA location is a reasonable option.

CONCLUSION

[57]     For these reasons, I find that the claimant is a Convention refugee and I accept her claim.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996

[3] Exhibit 1.

[4] Exhibit 5, p. 10.

[5] Exhibit 5, p. 10.

[6] Exhibit 5, p. 8.

[7] Exhibit 5, p. 5.

[8] Exhibit 5, pp. 19-21.

[9] R.S.C., 1985, c. C-46.

[10] Exhibit 4.

[11] Exhibit 3, National Documentation Package (NDP), Pakistan, March 31, 2020, Item 5.21.

[12] Exhibit 3, NDP, Item 5.5 Response to Information Request (RIR) PAK106392.E.

[13] Exhibit 3, NDP, Item 2.1.

[14] Exhibit 3, NDP, Item 5.19.

[15] Exhibit 3, NDP, Item 5.19.

[16] Exhibit 3, NDP, Item 5.19.

[17] Exhibit 3, NDP, Item 5.19.

[18] Exhibit 3, NDP, Item 5.19.

[19] Exhibit 3, NDP, Item 5.5 RIR PAK106392.E.

[20] 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.).

[21] Exhibit 3, NDP, Item 5.9.