Categories
All Countries Kenya

2020 RLLR 57

Citation: 2020 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: Deborah Coyne
Counsel for the Claimant(s): Denis Onek Olwedo
Country: Kenya
RPD Number: TB8-17416
ATIP Number: A-2021-00655
ATIP Pages: 000189-000193


DECISION

[1]       MEMBER: These are the reasons in decision, for decision in the claim of [XXX] who claims to be a citizen of Kenya and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The claimant fears persecution due to her gender and her membership in a particular social group, as a woman facing risk of female genital mut-, mutilation and gender violence.

[2]       The Panel applied the Chairperson’s Guideline 4 Women Refugee Claimants Fearing Gender-Related Persecution in assessing the harm feared by the claimant.

Allegations

[3]       In her written and oral testimony, the claimant provided a very detailed account of entering into a forced marriage, enduring serious domestic violence, resisting her husband’s insistence that she undergo FGM and ultimately escaping from him and the va-, vigilantes he hired to ensure she complied but not before she was raped and violently assaulted. The police were of no assistance on at least three occasions when she approached them for help. Ultimately, she was able to obtain a TRV and came to Canada seeking refugee protection at the Port of Entry.

Determination

[4]       The Panel finds that the claimant is a member of, of a particular social group which is women at risk of gender violence and is therefore a Convention refugee under Section 96.

ANALYSIS

and Identity

[5]       The Panel was satisfied on a balance of probabilities that the claimant is a citizen of Kenya from the certified copy of her passport on the file.

Credibility

[6]       The claimant responded to all questions clearly and spontaneously in the English language. The Panel finds the claimant to be a credible witness. And her evidence was corroborated by and is consistent with the documents she submitted that the Panel finds credible. Notably, medical reports, statement of suppor-, statements of support and some photographs.

[7]       The Panel makes the following findings on a balance of probabilities. The claimant was born into the Kisii tribe in Kenya in which FGM is still practiced in young girls and women along with other traditional customs. For example, after her father died, his brother inherited the claimant’s mother as his wife. Her mother was forced to marry her brother-in-law who then insisted that her mother undergo FGM.

[8]       The claimant successfully pursued studies and became [XXX] and her step-father found a way to send her to study [XXX] at the [XXX] from 2008 to 2012. When she returned to Kenya, she started working at the [XXX]. In or about 2013 and 2014, she discovered to her horror that her step-father had promised her in marriage to a man who had secretly funded her university studies in the Philippines.

[9]       A summary of the next traumatizing fours years are set out in persuasive detail in the claimant’s written narrative. The claimant was forced into the marriage in [XXX] 2015, raped brutally by her husband and ordered to undergo FGM. Shortly after the marriage, she reported her spousal rapes and violence to the Nakuru Central Police Station at the suggestion of her doctor. The police mocked her and said that alleging spousal rape was a waste of their time. The FGM was scheduled for [XXX] 2015. The claimant escaped from her husband and the vigilantes he hired to ensure that she underwent FGM. She moved around and worked in different places. For example, Nairobi, Nakuru and then Kibera where she stayed with her aunt. The claimant went to the police again in or about [XXX] 2016 when she was forced to return to her husband but managed to escape again. They told her that resisting FGM was a family matter but that she should go to the Anti-FGM Organization. The claimant went to get help from the Anti-FGM Organization but had to find money to hire a lawyer.

[10]     Among other things, she lived undercover by wearing a burqa in [XXX], about [XXX] kilometres away from Nairobi. In [XXX] 2017, while she was recuperating from an [XXX] she was discovered by the vigilantes, raped and seriously injured. She went to the police. A detailed copy of the report is found in Exhibit 5. And there was also other documents such as the [XXX] dated [XXX] 20th, 2017 and so forth. After this ordeal, she was advised by her friend [XXX] who had witnessed the attack on her by the vigilantes to leave the country and she applied for her T-, TRV. She falsiv-, she falsified the existence of a common-law husband and a child and some other documents to ensure that she was accepted. I also note that there were corroborative affidavits for most of the incidents from her friend [XXX], her aunt [XXX], her mother, [XXX] and another childhood friend. All of these are in Exhibit 5.

[11]     So, on a balance of probabilities the Panel accepts that the claimant has a subjective fear of persecution because of her membership in a personal social group, women at risk of gender violence.

[12]     So, now I’m going to turn to the objective basis. The claimant testified that the traditional practice of FGM is rooted in Kenyan culture and the Kisii tribe. The United States Department of States, State report called the DOS report for 2018 on Kenyan human rights notes that human right issues in the country including the lack of accountability in many cases involving violence against women including rape and FGM.

[13]     Authorities cited domestic violence as a leading cause of preventable and non-accidental death for women during the year. Except in cases of death, police officers generally refrain from investigating domestic violence which they consider a private matter. With specific reference to FGM, the DOS report indicates and this is in, oh this is in still in 2.1, the law makes it illegal to practice FGM, procure the services of someone who practices FGM or send a person out of the country to undergo the procedure. The law also makes it illegal to make derogatory remarks about a woman who has not undergone FGM.

[14]     Government officials often participated in public awareness programs to prevent the pra-, the practice. Nevertheless, individuals practiced FGM widely particularly in some rural areas. According to a study by ActionAid Kenya published in October despite the legal prohibition on FGM, mis-supported the practice-, supporting the practice remain deep-rooted in some local cultures. The study concluded approximately 21% of adult woman have undergone-, had undergone the procedure some time in their lives. But the practice was heavily concentrated in a minority of communities.

[15]     The DOS report further states that there were also reports the practice of FGM increasingly occurred underground to avoid prosecution. The May 2018 report entitled Kenya and the Law of FGM which is Exhibit 5.10 states as follows FGM in Kenya continues to be carried out predominantly by traditional circumcizers for 74.9% of girls age 0 to 14. And 83.3% of women aged 15 to 49. There has been some concern over the increasing medicalization of FGM in Kenya. In recent years however, with claims that its risen to as much as 40 per-, 41% in some areas. And that medical professions-, professionals are performing FGM in homes, hospitals or temporary clinics.

[16]     According to the UK Home Office and this is exhibit or, sorry Item 1.4 of the NDP for Kenya, women and girls in Kenya in fear of FGM forma particular social group within the meaning of the refugee Convention. And it further reports that although it is against the law and in decline, FGM continues to be practiced in Kenya among most ethnic groups to varying extents. The report indicates that communities that practice FGM report a variety of social and religious reasons for continuing with it. Deeply-rooted customs linked to social and economic benefits are associated with FGM.

State Protection

[17]     The agents of persecution in Kenya are the claimant’s husband and his extended family and the vigilantes he hired to pursue the claimant. As noted above, the claimant approached the police with complaints and requested help on at least three occasions and was turned away. An extensive report entitled FGM in Kenya, this is Item 5.3 it’s dated 2016 so it’s actually longer than a sequel to it which is, was done in 2018. However, it, it finds that “While there has been progress in both legal and policy frameworks, implementation and enforcement remain a challenge largely due to a lack of resources, difficulties reaching remote rural areas and the limited capacity of law enforcement agencies”.

[18]     This is enforcing the Anti-FGM legislation and, and policies that are technically in place. The report further finds that there have been few prosecutions and low conviction rates across the country. Often even if survivors do report FGM they fail to attend court to give evidence. Finally, the report finds that intimidation and fear help to keep the practice secret and cases unreported.

[19]     Item 2.3 which is the 2018 Freedom of the World report for Kenya indicates that corruption continues to plague national and county governments in Kenya. And State institutions tasked with combating cor-, corruption have been ineffective. Item 2.5 which is the 2017-2018 Amnesty International report indicates that the authorities continue to use legal and administrative measures to restrict the activities of civil society organizations working on human rights and governance.

[20]     And finally, according to the 2019 Human Rights report which is Item 2.2, women are also vulner-, vulnerable to abuse from the State security forces that should be there to protect them. The Watch report, the Human Rights Watch reports further indicates that the Jack of accountability for serious human right violations perpetrated by security forces remains a major concern in 2018.

[21]     So, the Panel finds on a balance of probabilities and in the particular circumstances of this case, that the objective country evidence supports the conclusion that the Kisii tribe and the Kenyan government and security forces are too often complicit in the gender violence experienced by the claimant. The claimant has provided clear and convincing evidence that the State is unable or unwilling to protect her. Accordingly, the claimant has successfully rebutted the presumption of state protection.

Internal Flight Alternative

[22]     The claimant testified that she would be at risk in all regions within Kenya. And that her husband and his vigilantes might have the means and motivation to seek her out wherever she might live and work. The evidence that the Panel found credible indicated that her husband was able to find her on several occasions as she sought to escape him after their marriage. The Panel finds that relocation within Kenya would be unreasonable in the claimant’ s circumstances. And the Panel further finds that there is no viable IFA where the claimant could reside safely.

[23]     So, in conclusion the Panel finds that the claimant is a member of a personal, particular social group which is women at risk of gender violence. And is therefore, a Convention refugee.

———- REASONS CONCLUDED ———-

Categories
All Countries Rwanda

2020 RLLR 48

Citation: 2020 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: Nick Bower
Counsel for the Claimant(s): N/A
Country: Rwanda
RPD Number: VB9-00586
ATIP Number: A-2021-00655
ATIP Pages: 000119-000127


— DECISION

[1]       PRESIDING MEMBER: These are my reasons for a decision in the claim for protection for [XXX], a citizen of Rwanda who seeks protection under the Immigration and Refugee Protection Act as a Convention refugee pursuant to section 96 and a person in need of protection, pursuant to section 97.

[2]       I’ve considered your testimony and all of the other evidence before me today. I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. As a preliminary matter you applied for late disclosure of a document, your employment contract, it’s relevant, probative, one relatively brief document which I was able to review completely before the hearing, it’s late admission does not prejudice any party and you provided a, I find, reasonable explanation for the late disclosure. Considering all of the relevant factors I accepted the document into evidence and added it to the list of documents as Exhibit 5.

ALLEGATIONS

[3]       Very briefly, you allege the following. When you were young, about [XXX], you got a job as a [XXX] at a law firm to help pay for your university. You worked there as a [XXX]

[4]       The firm employed two drivers on staff, the drivers were there to drive partners, associates and sometimes yourself when needed for work. One of the drivers was a man named [XXX]. He drove you sometimes including giving you rides sometimes to your university where you took classes in the evening after working a full workday at the law firm.

[5]       On one occasion, [XXX] drove you to his home and sexually assaulted you after drugging you. When he was finished, he threatened you and told you that if you told anyone, if his wife and family found out he would kill you.

[6]       You went to the hospital, you were examined, you went to the police and reported the sexual assault. The police said they would get back to you if things progressed. You waited 11 months without hearing anything from the police. And from what you know from hearing about other women it’s happened to, that’s not unusual.

[7]       You did not tell anyone at your work, and you were afraid. You have not told your family. You did tell some of your friends at university, they told you that they had heard from [XXX] who he knew from dropping you off at the university that you had initiated a sexual encounter. They blamed you and insulted you calling you a slut.

[8]       You have seen [XXX] just on the road outside of work, although you actively avoided contact with him on that occasion. You fear that if you were to return to Rwanda [XXX] could carry out his threat to kill you if his wife or family finds out.

[9]       After the sexual assault, you noted that you have been not just uncomfortable around men, but you have actively avoided being in the company of men. And comparing your experiences around men in Rwanda after the sexual assault to your experiences around men in Canada, even in Canada you are not comfortable or able to internet comfortably with men.

[10]     You fear that if you were to return to Rwanda, you might be sexually assaulted again. You don’t know much about [XXX]; you don’t know anything about his family. You only know him through work.

DETERMINATION

[11]     I find that you are a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[12]     I find that you are a citizen of Rwanda, you’ve provided in Exhibit 1 a copy of your current Rwandan passport with the still-valid multi-entry Canadian visa that you used to enter Canada.

Credibility

[13]     I find that you are a credible witness and I accept your allegations. You’ve testified in a responsive, meaningful and spontaneous manner. You have not taken opportunities to tailor or to exaggerate your evidence. Your evidence is consistent with the other evidence before me.

[14]     You have provided some documents to corroborate your allegations, in particular, you’ve provided a copy of your employment contract corroborating your work with the Lawfirm. You’ve also provided a copy of the medical report from the hospital following your complaint. The report is consistent with a complaint and investigation resulting from a sexual assault.

[15]     I note that a recent Federal Court decision, Volasko Chavaro (phonetic) -v- Canada [2020]

[16]     FC310 speaks to the issue of the delay in filing a refugee claim after arriving in Canada. The court finds, and I agree, that any finding on credibility based only on that delay in cases of sexual assault relies on,

“The discredited and stereotypical myth that all women who are victims of sexual assault react in the same manner and will report a sexual assault in a timely manner. This is an ancient but rejected stereotypical myth about victims of sexual assault known as the Doctrine of Recent Complaint. For the reasons that follow, I find this Doctrine should form no part of Canada’s Immigration Law. The Doctrine of Recent Complaint was thoroughly discredited decades ago because it is demonstrably false and because it is sexist being almost universally applied against female victims of sexual violence. It has been rejected by both the courts and Parliament in the context of criminal law. It has been denounced by this court in the immigration context”.

[17]     The decision goes on to state that it should not be applied in a refugee context as a way to find a claimant uncredible simply because, in a case of sexual assault, it took a period of time to gather the courage to come forward to seek protection.

Nexus

[18]     I find that there is a nexus between the persecution alleged and the Convention ground of membership in a particular social group as a woman whose a victim of gender-based violence or GBV.

[19]     At tab 5.3 is a report by the United Nations Committee on the Elimination of Discrimination Against Women. That report states,

“The Committee welcomes the awareness-raising measures taken by the State party (meaning Rwanda’s Government) to address discriminatory stereotypes about the roles and responsibilities of women and men in the family and in society. However, the Committee is concerned that those measures insufficiently tackle the prevalence of deep-rooted patriarchal attitudes and stereotypes that give a higher status to men and boys and the resulting subordination of women and girls, which undermines their social status, autonomy, educational opportunities and professional careers, as well as constitutes a underlying cause of gender-based violence against women”.

[20]     Women are seen in Rwanda as a group, as a particular group, based on their gender and subject to, as the report states, deep-rooted patriarchal attitudes which not only hinder their lives in a variety of aspects, but also leave women particularly vulnerable to violence as gender-based violence.

Well-founded Fear of Persecution

[21]     You have testified that you fear persecution if you return to Rwanda. I accept your testimony and so I accept that you do have a subjective fear of persecution.

[22]     Considering all of the evidence before me in this particular case, I find that your subjective fear is objectively well-founded.

[23]     I am satisfied, considering all of the evidence before me in this claim, that you would face a serious risk of persecution as a woman if you were to return to Rwanda.

[24]     I do not find that that serious risk of persecution is specific to Isaac. Considering all of the evidence, including the documentary evidence, I find that the serious risk is from men in Rwandan society in general, not tied to one particular man.

[25]     Returning to the United Nations Committee Report at tab 5.3, the report states,

“The Committee appreciates the measures taken by the State party to eliminate gender-based violence against women and provide assistance to victims, including the adoption of the National Policy Against Gender-Based Violence and a corresponding strategic plan and the establishment of the Asanji (phonetic) One-Stop Centres Anti-Gender-Based Violence Clubs in schools that involve both girls and boys and gender desks in the Rwandan National Police and the Rwanda Defence Force. The Committee notes with concern, however, that the number of women who are victims of gender-based violence including sexual violence is particularly high in the State party. It is further concerned that (a) gender-based violence against women is widely accepted by society, a situation that is exacerbated by the common perception that the traditional patriarchal system is under threat and younger men are inclined to consider that it is justified to beat their wives; (b) gender-based violence against women is largely under-reported because of the victims fear of stigma, retaliation and women’s economic dependence on the perpetrator as well as their lack of awareness of their rights and how to claim them, and continues; (f) the resources allocated to the provision of medical, psychological and legal assistance to victims are insufficient”.

[26]     At tab 2.5 is a report by the National Commission for Human Rights. That report specifically states that women and daughters with mental-illness are victims of gender-based violence such as sexual abuse.

[27]     At tab 5.6 is a report from Rwanda’s National Institute of Statistics on Gender Statistics. That report finds that 14-percent of women aged 15 to 49-years-old experienced physical violence within the 12 months proceeding the report. And 35 experienced physical violence since the age of 15.

[28]     Statistically, according to the report, 22-percent, or more than one in five women, have experienced sexual violence since the age of 15, and eight percent, or almost one in 10, experienced sexual violence within the 12 months proceeding the date of the report.

[29]     Of those women the proportion of women subjected to sexual violence by persons other than an intimate partner was 60.9, a significant amount of sexual violence against women in Rwanda comes from non-intimate partners, either friends, associates or strangers.

[30]     Putting this all together, as noted by the United Nations and by Rwanda’s own statistics, gender-based violence, including sexual assault against women in Rwanda is frequent and as noted occurs with general impunity. It is under-reported and despite the Government’s show of action in passing laws and establishing programs and centres to assist women, many of these programs that would provide assistance to vulnerable women in need are underfunded and underutilized. In particular, women who are otherwise vulnerable, such as women with mental-health issues, have a greater risk of experiencing gender-based violence.

[31]     There’s no evidence before me, there’s no documentation that you suffer a diagnosed mental­ health condition. However, you’ve testified, and I accept that since the sexual assault, understandably, you are afraid around men and you avoid socially interacting with men. That will, I find, mark you as someone vulnerable. You are still very young; you have never lived independently. You’ve had one job and– one job in Rwanda, and you were sexually assaulted within months of beginning that work.

[32]     You are — you’re a very intelligent young woman, but you are still quite young, you haven’t completed a university degree; you haven’t lived independently. All of these factors make you vulnerable and increase your risk of further gender-based violence if you were to return.

[33]     Your experiences are consistent with the documentary evidence. Gender-based violence remains under reported and the laws prohibiting rape, sexual assault, work-place harassment, are not effectively enforced.

[34]     You, yourself, experienced a stigma, not even from the sexual assaulter and his peer group, but from your own peer group following the sexual assault because they took the word of your rapist over your own word, the word of their friend. They took the word of a man they didn’t know that well over the word of a woman with whom they’ve been friends and classmates.

[35]     Considering all of the evidence before me in this particular claim, in particular the high, as stated, particularly high pervasive rate of gender-based violence in Rwanda. The lack of effective protection from the State in large part due to entrenched patriarchal attitudes that justify gender-based violence against women. And your particular characteristics as a young woman who has already experienced not just gender-based violence, not just a sexual assault, but also the stigma, harassment and exclusion from your friends following that assault.

[36]     You haven’t told your family and you don’t want to move away from them because they would ask why, because you’re afraid of your family’s reaction.

[37]     Considering all of the evidence before me, I find that you do face a serious risk of persecution because of your gender if you were to return to Rwanda. That persecution might take the place — might take the form of another sexual assault. It might result, it might simply be constant, ongoing harassment and discrimination amounting to persecution.

[38]     At tab 5.1 — sorry, 5.4, is a report from the Organization for Economic Cooperation and Development on Rwanda, Social Institutions and Gender Index for 2019 which makes clear that, despite Rwanda’s laws promoting gender equality, women are still subject to pervasive discrimination at home, at work, economically and at law. Not under the law, but when trying to access the protection of the law. This discrimination may certainly amount to persecution, particularly when it’s combined with your individual factors as a young, dependent women, already the victim once of gender-based violence.

State Protection

[39]     I find that adequate State protection would not be reasonably forthcoming. You have rebutted, in this case, the presumption of State protection.

[40]     You testified and I accept that you went to the police, they were dismissive and over a year, possibly more, the police took no action that you could see. There’s no reason to expect that they have done more since. You were there, you were available. The criminal, the man who sexually assaulted you was there, the police could have investigated, nothing has happened.

[41]     That is not inconsistent with the documentary evidence. Going back to the report at tab 5.4 the OECD states,

“Despite these efforts GBV remains pervasive as it was widely accepted by the society as a result of entrenched traditional patriarchal norms. Although reporting rates for GBV cases have increased as a result of the Government’s prevention and protection efforts, it remains under-reported due to victim’s fear of stigma, retaliation and women’s economic dependence on the perpetrator.

[42]     It goes on to state,

While the MAJ’s (Access to Justice Bureaus) provide a system of legal aid, there are no legal aid schemes for women that address their specific barriers in access to justice, including lack of economic independence and sociocultural norms that constrain them from filing a GBV or land-inheritance claims. The Government has identified lack of information about the legal system as a key constraint as women’s access to justice”.

[43]     Taking that into account, the Government has specifically identified lack of information as a key constraint on women’s access to justice. However, as the U.N. report at tab 5.3 notes, a particular reason for concern about ongoing risk faced by women in Rwanda is that the resources allocated to the provision of medical, psychological and legal assistance to victims of gender-based violence are insufficient.

[44]     Gender-based violence remains particularly high, in the words of the U.N., in Rwanda. It remains under-reported despite the Government’s efforts. And as you experienced and as you’ve seen in other cases, even when reported it does not necessarily lead to — it does not reliably lead to enforcement of those laws and consequences for the perpetrator of gender­ based violence.

[45]     So considering all of the information before me in this claim, I’m satisfied you would not receive adequate State protection if you were to return to Rwanda.

Internal Flight Alternative

[46]     I find you do not have a viable internal flight alternative. I find that you would face a serious risk of persecution throughout Rwanda.

[47]     The factors that we’ve discussed so far, the laws and the enforcement of the law, social attitudes and the prevalence of gender-based violence are not specific to Kigali, those are the general conditions that exist throughout Rwanda. If anything, one might expect that you would receive better assistance and better treatment in Kigali, the capital of the country and the largest city, the most metropolitan city, the centre of the Government. You’ve lived in Kigali all your life and this is what happened. There’s no reason to expect that conditions would be better in any other particular part of the country.

[48]     Also, if you were to relocate from Kigali, you would be even more vulnerable. You’ve never lived outside Kigali; you’ve never lived away from your parents. You have contact with some people in other cities, but it’s limited distant contact. For example, you were in contact with an uncle whose passed away. If you were to relocate, you would face an even greater risk of persecution because you would be perceived as, and you would be, even more vulnerable.

[49]     In conclusion, for these reasons, considering all of the evidence before me in this claim, I find you would face a serious risk of persecution because of your membership in a particular social group, as a woman, a victim of gender-based violence, if you were to return to Rwanda. You have a subjective fear of persecution that is objectively well-founded. You would not receive adequate State protection and you do not have a viable internal flight alternative.

[50]     For these reasons, I accept your claim.

[51]     So that concludes my reasons for the decision. Thank you for your patience through this process and thank you for being here today.

[52]     Counsel, thank you very much for your presentation. And I wish you the best of luck in the future.

[53]     CLAIMANT: Thank you. I would like to thank you and appreciate everything. I really appreciate with that understanding and belief, it’s very special.

[54]     PRESIDING MEMBER: It’s simply the hearing that you are entitled to under the laws of Canada. So, thank the law, but thank you.

— DECISION CONCLUDED

Categories
All Countries India

2020 RLLR 42

Citation: 2020 RLLR 42
Tribunal: Refugee Protection Division
Date of Decision: March 10, 2020
Panel: R. Moutafova
Counsel for the Claimant(s): Mohammad Khan Khokhar
Country: India
RPD Number: TB9-07818
ATIP Number: A-2021-00655
ATIP Pages: 000085-000092


REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the panel) in the claim for refugee protection of [XXX] (the claimant), citizen of India. She claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the IRPA).1

[2]         The Chairperson’s Guideline 4- Women Refugee Claimants Fearing Gender-Related Persecution was considered and applied to the hearing and determination of this claim.2

ALLEGATIONS

[3]       The claimant’s detailed allegations are contained in her Basis of Claim form (BOC)3 and in her testimony. In summary, the claimant is unmarried [XXX] single woman, who graduated from the [XXX] with a [XXX] and found work in the [XXX] field. She fears serious harm or death in India at the hands of her former managers, who sexually assaulted her and blackmailed her. The claimant also fears serious hmm or death in India at the hands of a high-ranking police officer who colluded with her former managers and participated in the abuse and the blackmailing.

DETERMINATION

[4]       Having considered ail of the evidence, including the claimant’s testimony, the panel finds that the claimant faces a serious possibility of persecution in India on the basis of her membership in the particular social group of Indian women facing gender-based violence. The panel therefore finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA and accepts her claim.

ANALYSIS

Identity

[5]       The panel is satisfied that the claimant’s identity has been established, on a balance of probabilities, by a certified copy of her Indian passport filed into evidence4.

Nexus

[6]       The panel finds that for the claimant, there is a nexus with one of the five Convention grounds, i.e. her membership in the particular social group of women fearing gender-related persecution.

Credibility

[7]       Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this case, the panel has no such reason. The panel finds the claimant to be a credible witness and believes, on a balance of probabilities, the key allegations of her claim. The testimony of the claimant was spontaneous, emotional, detailed, and sincere. The panel did not find that she tried to embellish or exaggerate her allegations during her testimony. There were no significant inconsistencies or omissions with regard to the main allegations. Her testimony was consistent with the allegations in her BOC, and also included additional details that allowed the panel to more fully understand her claim.

[8]       Since this claim involves gender related violence, the panel considered the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.5 The Chairperson’s Guideline assists in assessing the key evidentiary elements in determining to what extent women making a gender-related claim of fear of persecution may successfully rely on any Convention ground and under what circumstances gender violence constitutes persecution. The Chairperson’s Guideline also highlights 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. The Chairperson’s Guideline was used to help assess the circumstances of this claim and to understand and apply the added sensitivities necessary to properly assess the evidence.

[9]       The claimant is unmarried [XXX] single woman, who graduated from the [XXX] and found work in the [XXX] field. She was promoted soon to [XXX]. In [XXX] 2016 a new manager substituted her previous lady- manager. Soon the physical and psychological mistreatment of the claimant started at the hands of this manager, who proposed to the claimant to become his personal assistant as a manner of promotion. She refused and then the sexual harassment began. Details of the mistreatment are detailed in the BOC form. The claimant tried to complain to HR department, but was made to understand that a dismissal will follow, should she proceed formally with the complaint.

[10]     The claimant decided to put the harassment to an end by leaving her job and she filed a notice of resignation.6 Her manager threatened her, that she would not find job in the [XXX] industry again. Nevertheless, she proceeded with her resignation and the employment contract was terminated upon the expiry of the notice, in [XXX] 2016.

[11]     Indeed, the claimant was not able to find a job [XXX] for a while and, thus, decided to change the industry of occupation. She found a job in another town, where she lived with her parents, as a [XXX]. The professional relationships in the new workplace were very good to the moment when her old manager appeared in the office, and talked to her current manager in [XXX] 2018. Then the claimant was subjected to horrible mistreatment and molestation by her manager and a man in police uniform and, who was introduced as a Senior Superintendent of the Police Department. She was threatened with kidnapping of family members and troubles for her family should she attempt to complain to the police. The claimant was repeatedly intimidated by her manager, who would come to the claimant’s parents’ house looking for the claimant and threatening to ruin her family and more particularly – her dignity by posting the video-material on-line.

[12]     The claimant felt she had no choice and resumed work in the office. The molestation and the sexual harassment continued on a regular basis. The claimant was devastated. Her mistreatment was turning into horrible sexual abuse, which led to profound [XXX].

[13]     The claimant arranged for the continuation of her study in Canada and arrived in [XXX] 2018 and filed this asylum claim.

[14]     The claimant outlined in her BOC that throughout her employment several men severely abused her, molested her and finally, learning about her plan to leave India and obtained student visa to Canada, abducted her and subjected her to a most horrible sexual violence, committed by several men. She provided credible testimony about her fears in India and the events that occurred in India that precipitated her departure. She testified about her employment experience and provided the expected details about it. She explained how, in early [XXX] 2017, she left her job, understanding that this is the only way to resolve the problem with the sexual harassment at work. She explained how she arrived to the decision to change the industries and the cities of employment. She explained that following the molestation at the new workplace, she unsuccessfully attempted to file a complaint in the police. She also described in detail how, in [XXX] 2018, she was intimidated by her manager, who came to her residence, insisting that she comes back and continue to work in the office, threatening to destroy her family and her reputation.

[15]     The claimant’s allegations are supported by corroborating evidence, including her employment history, which was consistent with her allegations.

[16]     In the claimant’s case, there were no relevant contradictions, inconsistencies, or omissions between her BOC, her testimony at the hearing, and the documentary evidence on file, that were not reasonably explained.

[17]     The claimant’s allegations are supplied by the objective documentary evidence on file. The National Documentation Package for India indicates that violence against women, including sexual violence, has increased in India,7 and also points out the inadequacy of state protection, as discussed below. The documentary evidence also is replete with references to abuses of authority and corruption within the justice system, including within the police, and the growing demand for police account ability.8

[18]     The panel therefore finds that the claimant has established, on a balance of probabilities, that she suffered physical and sexual assault by her two managers, who initiated and organised violent and brutal sexual violence and harassment, involving a high-ranking police officer and unknown men, and that the police refused to perform their duties and to protect the claimant, when she attempted to file a First Information Reports (FIR) and to get police protection, but this was not successful.

State Protection

[19]     The panel finds that the claimant has rebutted the presumption of state protection, with clear and convincing evidence that the Indian state would be unable or unwilling to provide her with adequate protection.

[20]     The documentary evidence indicates that in April of 2013, the President of India approved the Criminal Law (Amendment), which criminalizes several forms of violence against women and enlarged the definition of rape.9 However, the law has been criticized for not going far enough in certain aspects. According to the same source, the legislation “does not remove the effective legal immunity that security forces accused of sexual violence enjoy under special laws like the Armed Forces (Special Powers) Act.”10 In addition, the documentary evidence points to inadequacy and inconsistency of police response to sexual assault across India, and the widespread need for the training of police officers in this regard.11

[21]     ln this case a high-ranking police officer was among the claimant’s agents of persecution. The panel has found credible the claimant’s allegations of sexual assault at the hands of her ex­ managers and their friends. The panel has also found credible her allegations with respect to the unsuccessful attempt to complain to the police in Chandigarh and about the threats she received. Moreover, as indicated above, the documentary evidence is replete with references to police abuse and impunity throughout India.

[22]     Given the evidence, the panel finds, on a balance of probabilities, that adequate protection would not be provided to the claimant in India.

Internal Flight Alternative

[23]     At the hearing, the panel asked the claimant whether she could relocate safely and reasonably to a large Indian metropolis, such as Mumbai or Kolkata.

[24]     The test to apply to assess whether there is an Internal Flight Alternative (IFA) has two prongs. The first is to determine whether there is, in the proposed IFA, a serious possibility of persecution under section 96 of the IRPA or if there is a risk, on a balance of probabilities, that the claimant would be subjected to one of the harms set out in subsection 97(1) of the IRPA. The second prong involves determining whether it would be objectively unreasonable to expect the claimant to seek refuge there, taking into account the circumstances specific to her.

[25]     The claimant testified that she would not be able to relocate, arguing that she fears that her manager will find her given that he has ties with the police which would enable him to find her. This already happened once when the claimant, hoping to put the assault to an end, resigned from her job, changed her location, going to another town, and even changed the industry of employment, but, nevertheless, she was found by her former manager.

[26]     The panel finds that the claimant has demonstrated that the alleged agents of persecution – the claimant’s managers and the colluding high-ranking police officer, have the means and the motivation to find and harm the claimant anywhere in India.

[27]     Accordingly, since the possibility of an IFA fails on the first prong, the panel will not proceed to the second prong of the IFA analysis. Thus, the panel concludes that an IFA is not a reasonable option in the claimant’s particular case.

CONCLUSION

[28]     After assessing all of the evidence, the panel concludes that if the claimant returned to India, she would face a serious possibility of persecution under section 96 of the IRPA, as a result of her membership in the particular social group of women fearing gender-related persecution. Thus, the panel finds that the claimant, [XXX], is a Convention refugee. Accordingly, the panel accepts her claim.

(signed)           R. Moutafova

March 10, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act.
3 Document 2 – Basis of Claim form (BOC).
4 Exhibit # 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC); Certified true copy of the claimant’s passport.
5 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act.
6 Exhibit# 6 – Notice of resignation.
7 Exhibit # 3 – National Documentation Package on India, 31 May 2019; Item 5.2: IND105130.E, 15 May 2015; Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence (2013-April 2015).
8 Idem; Item 7.8: IDFC Institute, 20 April 2017, Safety ])-end,· and Reporting a/Crime; Item 9.6: Amnesty International, 2017, Justice Under Trial: A Study of Pre-Trial Detention in India; Idem; Item 9.7: IND105781.E, 5 May 2017; Independence of and coJTuption within the judicial system, including the scale of corruption at different levels (2015-May 2017);Item 10.5: Commonwealth Human Rights Initiative, December 2012, Police Complaints Authorities in India: A Rapid Study.
9 Idem.
10 Idem.
11 Idem, Item 5.3: BharatiyaStree Shakti, March 2017, Tackling Violence Against Women: A Study, if State Intervention Measures.

Categories
Algeria All Countries

2020 RLLR 39

Citation: 2020 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: November 13, 2020
Panel: Julie Beauchamp 
Counsel for the Claimant(s): M. Mary Akhbari 
Country: Algeria
RPD Number: TB8-26732
ATIP Number: A-2021-00655
ATIP Pages: 000066-000070


DECISION

[1]       MEMBER: And I told the claimant I am accepting her claim, and here are my reasons.

[2]       So, the claimant, [XXX] — this is file TB8-26732 — is a citizen of Algeria and claiming refugee protection under s. 96 and s. 97(1) of the Immigration and Refugee Protection Act. As the claim involves allegation of domestic and gender-based violence, the chairperson’s guideline 4 on women refugee claimants fearing gender-related persecution was considered for the claimant and applied to the hearing and determination of this claim.

[3]       The details of this claim can be found in the Basis of Claim form, which is Exhibit 2, and as amended, found in Exhibit 2.2. The claimant alleges that she faces a serious possibility of persecution at the hands of her father and older brother. She alleges that she spent a life in Algeria being at the mercy of her father who regularly abused her, verbally, psychologically, and physically. She alleges that her father tried to stab her on two occasions, that both times he grabbed a sharp abject and came at her, but she managed to escape to her room. She alleges that she has not heard from her father since she left Algeria but fears for her life and continues to believe him to be capable of hurting or killing her, as she has disobeyed him by escaping and her father does not like to have his authority challenged.

[4]       I have considered all the evidence and I find that you are a Convention refugee and that you face a serious possibility of persecution under s. 96 of the Immigration and Refugee Protection Act on the basis of your membership in a particular social group as a woman fearing domestic violence.

[5]       With respect to your identity, I am satisfied of your persona) and national identities as a [XXX] Algerian woman and that these have been established on a balance of probabilities by a certified true copy of your passport filed at Exhibit 1, and this includes also a Canadian visa that you used to travel to Canada.

[6]       With respect to your credibility, I found you to be a credible witness, and I believe on a balance of probabilities the key allegations of your claim. You testified experiencing verbal and emotional abuse at the hands of your father in your childhood. You testified that the abuse got worse and included physical abuse after you finished school in 2005 and your father forbade you from working. You testified that your mother was also subject to frequent abuse by your father. You testified that your older brother subjected you to verbal abuse, but you testified during the hearing that you could “tolerate” him, and you felt like the one who would hurt you would be your father. You describe your father as a dangerous, illogical man with whom you had no relationship and who would frequently not talk to you. You testify in a straightforward, spontaneous, detail, and sincere manner.

[7]       I did not find that you embellished your story or exaggerated your allegations during your testimony. You provided several details beyond the parameters of your Basis of Claim thereby lending further credibility to your statements. I also note that there were no contradictions, inconsistencies, or omissions between your BOC, your testimony at the hearing, and the documentary evidence submitted.

[8]       You explained to me how you were living in an open prison, that you led a life with no goals, no purpose, with your dreams destroyed. Your father did not allow you to work or get married or have any friends. I believe what you have alleged on a balance of probabilities.

[9]       You also testified on the abuse by your father, the verbal and psychological abuse, the words he would use to call you at home, how he would constantly belittle you, and how he has attempted to severely hurt you with a sharp abject. You testified that your father’s abuse left you feeling betrayed and feeling like there was injustice for you having to go through such hardship. I believe what you have alleged on a balance of probabilities.

[10]     I had concerns about your departure from Algeria. You told me that your father did not know that you had applied for a passport and that you were hiding this passport in your room. You told your mother why you were leaving Algeria, to get away from mistreatment, and that in order for you to do so, your mother had asked your brother to come with her for a [XXX] so that the house would be empty while your father was at work. I accept this explanation on a balance of probabilities.

 [11]    I also had concerns about your delay in claiming in Canada. However, the evidence provided in your testimony and in your BOC satisfy me in terms of your efforts in seeking counsel and juggling the legal aid system in Ontario. You did initially file your Basis of Claim form with the assistance of your brother before retaining counsel. I also accept this explanation on a balance of probabilities, and I find that the credibility concerns by your delay in claiming in Canada are outweighed by your credibility regarding the violence and the threats perpetrated against you.

[12]     As such, I accept on a balance of probabilities what you have alleged as credible, and I also find that your actions reflected a subjective fear.

[13]     With respect to the objective basis now, your allegations are consistent with the objective documentary evidence concerning gender-related violence in Algeria.

[14]     There exist a societal atmosphere in Algeria that contributes to the tolerance of domestic violence and silence victims. That is found at item 5.3 of Exhibit 3.

[15]     Human Rights Watch has stated that the shortcomings of the Algerian government’s response to the problem of domestic violence include a lack of services for domestic violence, particularly shelters, a lack of measures for the prevention of violence, such as use of educational curricular to modify discriminatory social and cultural patterns of behaviours as well as derogatory gender stereotypes, and insufficient protection from abusers, such as restraining orders and inadequate response from law enforcement. Domestic violence was made a criminal offence in Algeria under law number 15-19, but the law has serious shortcomings, as the scope of the definition of domestic violence does not include ail individuals. It is intended to apply to both current and former spouses but does not extend to relatives, unmarried couples, or other household members. And also, there is no overarching legal framework governing violence against women in Algeria. That is found at item 5.2 of Exhibit 3.

[16]     Also, in item 5.3, domestic violence survivors can find themselves trapped, not only because of economic dependence on their abusers, but also because of social barriers which included pressure to preserve the family at all costs, stigma, and shame for their family if women leave or report abuse.

[17]     Counsel’s disclosure at Exhibit 6 included many reports about the domestic violence crisis in Algeria and the extent to which many women are killed by members of their own families.

[18]     Accordingly, I find your fear with respect to the violence at the hands of your father to be objectively well-founded.

[19]     With respect to state protection, you said that you never went to the police because you felt that they would not protect you, and that it would result in you ending up on the street, as there are no shelters. You added that, based on what you know, the police would call your father and force you and him to reconcile.

[20]     The documentary evidence provides that there are significant gaps in Algeria’s legal framework, and the evidence also supports what you have testified about. Frequently, when a woman has enough courage to approach the police to denounce the violence, the officers try to deciduate (sic) her from pressing charges on account of it being a familiar matter, or are dismissive in their response. As previously discussed, the law offers the possibility for the offender to escape punishment or benefit from a reduced sentence. This has the effect of increasing the victim’s vulnerability to social pressure to pardon her abuser, and it might lead to her being dissuaded from seeking court remedies for domestic violence. In addition, the law relies heavily on an assessment of physical incapacitation — think I said it right — in order to decide on sentencing without offering guidelines for doctors on how to make a determination of incapacitation in domestic violence cases.

[21]     So, in light of this evidence, I conclude that it would be unreasonable for you to seek protection from the authorities in Algeria, and as such, I find there is no adequate state protection.

[22]     Now, lastly, with respect to an internal flight alternative, you made it clear that the main problem in your relocation elsewhere in Algeria was not that your father would be able to find you anywhere you go, the problem is that you would have to live in Algeria as a single woman with no family support. You testified not being in contact with other family members living outside the capital, and that you had actually tried one time to reach out to your aunt for help because she lives in the desert of [XXX], but that she refused to help you. You have no family support available to you, and you explained that you had not worked since 2005, given that you were prohibited by your father from doing so. While I do note that you have a job in Canada, I will acknowledge the Canadian context and society to be different.

[23]     According to the objective evidence, women who try to relocate and live by themselves are mistreated in their new communities, and they expose themselves to gender-related risks, as they are seen as having poor morals. In addition, they usually face many challenges, including challenges in securing jobs and housing. To successfully relocate, women who are not accompanied by males need a strong network of relatives and friends in the new location, which you do not have. Often women running away from domestic violence end up living by themselves, and that is not something that can be done in Algeria. You are supposed to run to a family member.

[24]     So, based on this objective evidence, I find that the test for internal flight alternative fails on the second prong. I conclude that you do not have a viable internal flight alternative in Algeria.

[25]     In conclusion, after assessing all of the evidence, your testimony, objective evidence, your persona) evidence, I find that you would face a serious possibility of persecution should you return to Algeria based on your membership in a particular social group as a woman fleeing domestic violence and I therefore accept your claim.

[26]     That is it. Thank you, everyone.

[27]     And thank you for your patience. And congratulations and wishing you an excellent weekend.

[28]     COUNSEL: Thank you. Bye-bye.

[29]     CLAIMANT (without interpreter): Okay, thank you. Bye.

[30]     MEMBER: Madam [inaudible] —

[31]     INTERPRETER: Bye-bye.

[32]     COUNSEL: Thank you, everyone. Bye, everyone. Have a great weekend.

[33]     MEMBER: Thank you. You —

REASONS CONCLUDED

Categories
All Countries Guatemala

2020 RLLR 14

Citation: 2020 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: June 18, 2020
Panel: D. Marcovitch 
Counsel for the Claimant(s): James Stephen Schmidt
Country: Guatemala
RPD Number: TB8-20434
Associated RPD Number(s): TB8-23370
ATIP Number: A-2021-00540
ATIP Pages: 000097-0000102


REASONS FOR DECISION

[1]       The claimants, [XXX] (the “principal claimant” or “PC”) and [XXX] (the “associated claimant” or “AC”), (collectively, the “claimants”) claim refugee protection as against Guatemala pursuant to s.96 and s.97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       The claims were joined pursuant to Rule 55 of the RPD Rules.

[3]       In deciding these claims, I have considered the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[4]       The allegations of the claimants are set out in their respective BOC forms.3

[5]       In summary, on [XXX], 2018, the PC was forcibly taken off the street by members of the local Mara 18 gang and into an abandoned lot and sexually assaulted. Afterwards a neighbour found her and brought her home. The AC insisted that she and the PC go to file a report on the assault with the police. The PC received a medical evaluation which confirmed the sexual assault.

[6]       The gang members learned that the PC filed a report about the sexual assault and called and threatened both her and the AC to withdraw the complaint. The PC and AC moved to a nephew/cousin’s home about 200km away, however, the claimants were eventually found there too. As a result of the negative attention, the nephew/cousin asked the claimants to leave his home because he was now in danger.

[7]       The claimant left Guatemala for the USA on [XXX], 2018, where they stayed with AC’s sister/PC’s aunt. The AC had a [XXX] related health emergency while in the USA and then the AC’s sister asked them to leave because she could financially support them, so the claimants did not leave for Canada until August 2018. The AC still had a valid Canadian visa (from previously visiting a daughter in Ontario) so she crossed the border on August 18, 2018. The PC travelled to Canada on August 22, 2018 after having booked a border appointment through Vive la Casa.

DETERMINATION

[8]       I find that the claimants are Convention refugees as they would face a serious possibility of persecution at the hands of the Mara 18 gang based on their membership in a particular social group, namely women who are victims of gender violence.

ANALYSIS

Identity

[9]       The claimants’ have established their identities, on a balance of probabilities, based on their testimony as well as the certified true copy of the claimants’ Guatemalan passports, all on file and which were forwarded to the Board by Immigration, Refugees and Citizenship Canada.4

Nexus

[10]     I find that the principal claimant has established a nexus to the Convention by virtue of her membership in a particular social group, namely, female victim of gender violence. I find that the AC has established a nexus to a Convention ground on the basis of her membership in the particular social group of family, through the PC’s allegations.

Credibility

[11]     The onus rests on the claimants to establish their allegations on a balance of probabilities. In this regard, it is well-established that a claimant’s sworn testimony is presumed to be truthful, unless there are valid reasons to doubt the claimant’s truthfulness.5 Moreover, a claimant’s allegations must be proven on a balance of probabilities only.

[12]     The principal claimant testified credibly with respect to the sexual assault and attempt to get state protection. I also find that the claimants were credible with respect to their testimony regarding being found by Mara-18 approximately 200km’s away from their home. While I find that there has been some embellishment regarding details around whether the Mara 18 members surrounded their nephew/cousin’s home, it is not enough to take a negative inference as to the entirety of the claim.

[13]     The claimants provided some documentary evidence in support of their allegations, including documentation from the Police, the Public Ministry and Prosecutor’s Office in Guatemala, as well as forensic medical and psychological reports.6 The claimants also provided support letters from family members and neighbours.7

[14]     These documents support the claimants’ allegation that the PC was sexually assaulted and that both claimants’ lives were threatened and reported to the police and the Public Ministry and Prosecutor’s Office. The panel notes that there were some inconsistencies with the principal claimant’s testimony; however, after considering the entirety of the evidence, the panel has accepted the claimants’ allegations on a balance of probabilities.

State Protection

[15]     The documentary evidence on country conditions establishes that criminal gangs like the Mara 18 are powerful, deadly, and out of control in Guatemala and that they are active in extortion and violent criminal gang activity in all parts of the country, such that Guatemala is in the midst of a criminal gang crisis.8

[16]     The country documents also establish that the Guatemalan police are corrupt and collude with gangs and are under-resourced and overwhelmed. From this perspective, the police are therefore both unwilling and unable to provide adequate protection to persons, and particularly women, fearing such gangs at the operational level. I find that the PC (as well as the AC) have approached authorities on numerous occasions seeking protection. I therefore accept that the claimants did not receive adequate assistance. Therefore, I find, on a balance of probabilities, that the claimants would not receive adequate state protection on a forward-looking basis should they return to Guatemala and require protection.

[17]     Therefore, based on country condition evidence and the claimants’ credible allegations, I find that the claimants face a serious, ongoing possibility of persecution at the hands of the Mara- 18 if they were to return to Guatemala.

[18]     As previously noted, I am satisfied that the risk is probable no matter where they go in Guatemala. Guatemala is a small country and the documents indicate that criminal gangs like the Mara-18 are active everywhere in Guatemala and they could, on a balance of probabilities, track the claimants down/find out their past history no matter where they attempted to hide.

[19]     I therefore find that a viable internal flight alternative is not available to them.

CONCLUSION

[20]     I therefore conclude that the claimants are Convention refugees under s.96 of the IRPA and their claims are accepted.

(signed)           D. Marcovitch

June 18, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Chairperson Guidelines 4 of Immigration and Refugee Board of Canada: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 1996.
3 Exhibit 2.1 and 2.2 and additional narrative letter at Exhibit 7.
4 Exhibit 1.
5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
6 Exhibit 6
7 Exhibits 7 and 8
8 See ail items in sections 1, 2, 7, 9 and 10 of Exhibit 3, National Documentation Package (NDP) for Guatemala (31 March, 2020).

Categories
All Countries India

2020 RLLR 29

Citation: 2020 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: Lesley Stalker
Counsel for the Claimant(s): Bashir A Khan
Country: India
RPD Number: VB9-06130
Associated RPD Number(s): VB9-06155, VB9-06156
ATIP Number: A-2021-00540
ATIP Pages: 000174-0000181


DECISION

[1]       MEMBER: These are the reasons for decisions in the claims of [XXX], her son [XXX] and her minor daughter [XXX]. The claimants are citizens of India and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. At the outset of the hearing, I confirmed the designation of the principal claimant, Ms. [XXX], as the designated representative for her minor daughter. The associated claimant, Ms. [XXX] son turned 19 on [XXX] the [XXX], 2020 and therefore does not require a designated representative. In considering the claims of the principal claimant and the minor claimant, I have considered and applied the Chairperson’s Guideline 4 on female refugee claimants fleeing gender-based persecution.

[2]       In considering the claim of the associated claimant, I have considered and applied Chairperson’s Guideline 9 proceedings involving sexual orientation and gender identity and expression. I also considered Chairperson’s Guideline 3 on procedural and evidentiary issues relating to child refugee claimants when assessing the claim of the minor claimant. Immediately prior to the hearing, counsel applied to admit a report from Dr. [XXX], a Winnipeg based [XXX] who specializes in [XXX], [XXX]. Her report included an apology from the [XXX] for her delay in finalizing the report. I admitted the report into evidence pursuant to Rule 36(4) on the basis of its relevant and probative value in interpreting cultural attitudes towards widows and sexual minorities in India. At the outset of the hearing, the principal claimant-, no pardon me-, at the outset of the hearing, the associated claimant and the minor claimant waived their right to be present throughout the entire hearing and were excused from the hearing room during the testimony of the principal claimant.

[3]       This was done so that the adult femal-, female claimant could testify more freely about her experiences after the death of her husband. Similarly, when the associated claimant was ready to testify, the adult female claimant and the minor claimant left the room so he could speak more freely. The claimants had an observer in the hearing, he left at a sens-, sensitive point in the adult femal-, female claimant’s testimony and remained outside the room for the rest of the hearing.

Allegations

[4]       The claimants’ allegations are set out in the Basis of Claim forms. In essence, Ms. [XXX], the adult female claimant fears that she will continue to be assaulted and threatened by people on the basis that she’s spurned the advances of a [XXX]-, [XXX]. Mr. [XXX] also wants the land that the adult female claimant and her son inherited from her husband after his death. She also fears that her status as a wis-, widow leaves her vulnerable to being ostracized, demeaned and sexually assaulted should she attempt to relocate within India. The associated claimant fears persecution or harm in India on the basis of his sexual orientation. The minor claimant fears that as a teenage girl without a father or other male relative in India to protect her, she is vulnerable to sexual violence as well as other forms of violence.

Determination

[5]       I find that the adult female claimant is a Convention refugee on the basis of her gender and her status as a window-, widow. I find that the associated claimant is a Convention refugee on the basis of his membership in a particular social group, namely young gay men in India. I find that the minor claimant is a Convention refugee on the basis of her membership in a particular social group, namely girls without fathers or other adult male protection.

ANALYSIS

Identity

[6]       The identity of the three claimants as nationals of India has been established by the testimony of the adult female claimant and by the claimants’ passports, certified true copies of which are on file.

Credibility

[7]       The adult female claimant and the associated claimant both testified at the hearing. I found them to be credible witnesses. The adult female claimant was somewhat hesitant in her testimony, a fact which I attribute to shyness and cultural factors. She was emotional when speaking about the death of her husband and about the distress and shame she felt at different incidents in the intervening years. The associated claimant was also credible. He spoke freely and openly and with passion about his sexual identity. He described his long awareness of being different, the taunts and bullying to which he was subjected in India, his initial loneliness in Canada and the warmth he feels at having felt-, found an LGBTQ community into which he has been accepted. There were no material inconsistencies in the testimony of the claimants or contradictions between their testimony and the other evidence before me.

[8]       The claimants filed a number of documents to corroborate their claims. These include a sworn statement from the adult female claimant’s parents-in-law who attest that their son was fatally injured by [XXX]. The deponents say that they had accompanied the adult female claimant to the police to file a complaint with the attack on the son but the police refused to investigate. The deponents attribute this fact to [XXX] connections and wealth. They also confirm that after their son’s death, [XXX] and his cohort continued to target the adult female claimant knowing that they could do so with impunity. That after [XXX] months of threats and harassments, the adult female claimant moved to her parent’s home with her children but she was targeted there as well.

[9]       The adult female claimant’s parents also filed a sworn statement which contains similar information to that provided by her parents-in-law. They say that [XXX] and his cohort came to their home in [XXX], [XXX]­ [XXX], to threaten, harass and assault the adult female claimant. As a result, the parents kept their door locked at all times and their daughter lived, “like a prisoner” in their home. Other documents include a brief medical letter which confirms a scar on the adult female claimant’s leg and the First Information Report relating to an-, at-, an attack on the three claimants in 2017. Finally, the claimants filed a letter from [XXX] in Winnipeg, an organization which describes itself as a support service for two spirit LGBTQ people who are arriving from around the world. The letter confirms that the associated claimant has attended the drop-in program at [XXX] and is in daily contact with the author of the letter. I note that the claimants’ accounts are generally consistent with the IRB’s National Documentation Package on India which will be addressed in greater detail below. Having found the claimants to be credible witnesses and having regard to the corroborative evidence before me, I accept the allegations as set out in their BOCs.

Nexus

[10]     In order to find that the claimants are Convention refugees, I must be satisfied that they have established a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion. In Ms-, in the present case, Ms.-, the adult female claimant’s fears relate at least in part to her refusal to marry [XXX], her husband’s murderer. As such, I find that she has established a connection to a particular social group namely her gender and her status as a widow. I find that the associated claimant’s claim has a Nexus to the Convention ground of particular social group, namely gay men and I find that the minor claimant’s claim has a Nexus to the Convention ground in particular social group namely girls under the age of majority who Jack adult male protection.

[11]     I will turn first to the adult female claimant’ s claim. I find on a balance of probability that she would be-, that she faces a serious risk of persecution should she return to India. My reasons are as follows. She’s a 41-year-old woman who was born in the Punjab region of India. She has some high school education but has never worked outside the home. When she was 21, she married [XXX]. [XXX] and his father owned a small farm on which they grew wheat, rice and other crops. In keeping with tradition, the adult female claimant moved into the home that [XXX] shared with his parents. In a village about 30 minutes away from Ms. [XXX]-, the adult female claimant’s home village of [XXX], [XXX]. In 20-, 2006, [XXX] was beaten to death by his cousins [XXX] and his brother.

[12]     [XXX] grievance with [XXX] was two-fold. First, he wanted to marry the adult female claimant himself. He had asked her to leave [XXX] and to marry him but she had refused. Secondly, he wanted [XXX] farm for himself. After her husband passed away, the adult female claimant went to the police to file a report but the police refused to take action. The adult female claimant attributes this to the fact that [XXX] is wealthy, is politically well connected and likely bribed the police. At the time of [XXX] death, the farm was in the name of his father. [XXX] father told the adult female claimant that he was worried that if something happened to him, someone else would seize the land. As I understand it, [XXX] father prepared a document which transfers ownership of the land to the adult female claimant and the associated claimant but has a continued right to occupy and use the land during his lifetime.

[13]     After her husband’s death, the adult female claimant continued to live with [XXX] parents. She says that she was repeatedly threatened and harassed by [XXX] and his supporters who believed that they had successfully got away with murder and could continue their pursuit of the adult female claimant as well as the land that they believed she now owned. After two months of threats and harassment, the adult female claim-, claimant moved from her in-law’s home to that of her parents in the hope of eluding [XXX] and his associates. The adult female claimant says that she rarely left the home. A fact which was re-iterated in the statements filed by her parents and her parents-in-law. She says that she endured several sexual assaults. She also says that she and her children were beaten in 2001 and 2017 by men who demanded that she comply with [XXX] demands. On each occasion, she filed a police report but the police refused to-, to take action.

[14]     Although the adult female claimant’s-, I’m sorry scratch that. During his testimony, the associated claimant said that he wanted to share an incident that he believed his mother would not have volunteered. He said that approximately 5 years ago, he went to a playground. His mother was alone in the house. When he returned, two men wearing turbans and having shawls over their faces were leaving the house. He found his mother in her room crying. He said her hair was messed up and her clothing was tom. When she-, he asked what had happened, she begged him to leave her alone. They have not spoken about this incident. He believes that something bad happened to her but that her sense of shame prevented her from talking about it with others or indeed from sharing it with me.

[15]     I find on a balance of probabilities that [XXX] and his cohort will continue to target Ms. [XXX] as retribution for his-, her spurning his offer of marriage and in his quest for ownership of the land. I find that Ms. [XXX] is not in a position to sell the land given that the legal documents which may have transferred title to her, stipulate that the original owners, her parents-in-law have the right to use and to live on the farm until they die. As such, it is not a simple matter of the adult female claimant simply surrendering or relinquishing the land.

State Protection

[16]     The question then becomes whether the adult female claimant can obtain protection from Indian authorities against the threats and assaults by [XXX]. I find she cannot. She has sought state protection with the help of her parents-in-law and her own parents on numerous occasions. On each occasion, the police failed to take action. The US Department of State report for 2018 found that the Immigration and Refugee Board National Documentation Package Tab 2.1 confirms that police in India are understaffed, under-resourced, undertrained and overburdened. Police failed to respond effectively, particularly when it comes to crimes against women. The Bertelsman Stiftung Index on political transformation at Tab 4.9 of the NDP reports that in general, underprivileged groups are particularly affected by the limited enforcement of protection laws and by the extremely slow progre-, process of the judicial system.

[17]     De facto, disadvantaged social groups do not enjoy equal access to justice. That same report goes on to say that violence and discrimination against women remain significant issues meaning that they are one of the disadvantaged groups who do not have meaningful access to justice. Dr. [XXX], who’s report I referred to above states that it is particularly difficult for widows to obtain state protection. She cites a prominent human rights lawyer in Delhi as saying, “If you are a woman in distress, the last thing you want to do is go to the police.” She quotes another victim as saying-, she quotes a victim as saying, “If you have money or connections, you can get justice, if you don’t, forget it.”

Internal Flight Alternative for the Adult Female Claimant

[18]     The next question is whether the adult female claimant might get away from the problems she has experienced by moving to another part of India. This is known as internal flight alternative or IFA. The IFA test is two prongs. For the first, I must be satisfied that there’s no serious possibility of persecution in the proposed IFA. The second prong requires that I consider whether it is objectively unreasonable for the claimant to seek refuge in the proposed IFA. In the current case, I find that [XXX] and his cohort are unlikely to find the adult female claimant in the proposed IFA. I should note that I had proposed New Delhi as a potential internal flight alternative. However, I find it is objectively unreasonable to expect the adult female claimant to relocate to New Delhi or indeed anywhere else in India due to the stigmatization and marginalization that she would face as a widow with limited education and no work experience.

[19]     The National Documentation Package says that-, reveals that women in India are exposed to a continum-, continuum of violence throughout their life cycle as some observers have put it from the womb to the tomb. Within a culture of patriarchy, discrimination and violence against women, women who attempt to set up independent households fare particularly poorly. The IRB’s response to information request at Tab 5.1 states that single women, a category that embraces widows as well as divorced women and women who have never married have to depend on someone’s good will, whether it be that of their in-laws, their parents, their brothers and sisters-in-law to provide for them and that they encounter serious struggles with basic life issues. The RIR states that nobody wants to rent to single woman-, women because a woman is expected to live with her father or her spouse. There are an estimated 10 to 15 thousand homeless women in Delhi. Home Jess woman are subject-, subject to constant violence, sexual assaults and murder from passers by and even from police and they Jack access to essential public services.

[20]     Delhi is increasingly perceived as being the most unsafe city in India for women. Nearly 73% of women in Delhi say they do not feel safe in their own se-, surroundings and report to feeling unsafe all of the time and for this, I refer to the IRB report at Tab 5.2 of the NDP. Now, I recognize some of the factors that would make it-, that I have referred to may not apply to an affluent, educated or cosmopolitan woman from a major urban center but this is not the adult female claimant’ s situation. She is marginally educated. Comes from a farming background and has never held a paying job. Moreover, she does not have those relatives with whom she can live outside her home region. Based on the evidence before me, I find on a balance of probabilities that the conditions the adult female claimant would face should she attempt to relocate to New Delhi could jeopardize her life and her safety. I therefore find that she does not have a viable internal flight alternative within India.

[21]     I now turn to the claim of the associated claimant. I find that he has established a well-founded fear of persecution for reason of his sexual orientation. He testified that he realized he was gay from an early age. He began to apply makeup when he was 5 or 6 and would talk to girls about his dreams of marrying a boy. He says he was taunted and bullied by boys in the school who attacked him in the washroom and in the playground. He says that his mother asked him if he was gay while they were still in India. He says he initially denied this but then admitted it. He said she broke down upon hearing this. She said they were already vulnerable because of her status as a widow and she asked him not to tell him anyone about his sexuality. The adult female claimant had previously testified that she realized that her son was gay in 2015. She feared for her son ‘s safety because India is not safe for gay people. She says it has-, has a been a huge relief for both her son and for herself that he can finally be open about his sexuality without fear of harm.

[22]     Even in the safety of Canada, she has not told her sister with whom she lives about her son’s sexuality. When asked why she-, is so concerned, she says that she believes that Punjabi society will blame her for her son’s sexuality because she had to raise him alone as a single parent after her husband was murdered. The associated claimant says that he follows news about treatment of members of the LGBTQ community in India. He says that the laws may have changed, same-sex relationships are no longer criminalized under the law but that societal attitudes have yet to shift. The NDP confirms that there are changes relating to the situation in-, of sexual minorities in India. In September 2018, in the decision of Johar, J-O-H-A-R, the Indian Supreme Court declared that the provisions of the crim-, penal code which criminalized consensual same-sex relations were unconstitutional. The decision was ground breaking. The question however, is whether it is resulted in changes on the streets which are meaningful, effective and enduring.

[23]     The decision will undoubtedly change the shape of India in the years to come but the question is not whether the associated claimant may be able to live there safely in 5 or 10-years time but whether he can express himself fully now and avail himself of meaningful protection. The US Department of State report at Item 2.1 of the NDP says that people in the LGBTI community-, LGBTQ community continue to face physical attacks, rape and blackmail. The UK Home Office report on sexual minorities in India which was released in October 2018 and can be found at Tab 6.4 of the NDP reports that many religious organizations including Hindu, Christian and Muslim groups are up in arms about the Johar decision. An IRB Response to Information Request on the treatment of sexual minorities found at Tab 6.1 of the NDP quotes the ILGA for the proposition that Indian courts have taken positive steps to protect gay and lesbian couples. Overall, however, the ILGA says there is no protection for sexual minorities in India, either in the constitution in terms of broad protection or in employment or against hate crimes or incitement.

[24]     Dr. [XXX] also provides interesting incites. She quotes a student activist as saying that the ideology of marrying a woman havening-, having children is deeply rooted in Indian society and that this attitude places LGBTQ persons on the periphery of a society that enforces social rules with threats and violence. She notes that law enforcement only rarely prosecuted gay men when Section 377 of the Indian Penal Code was still enforced. That is because most enforcement was provided by societal policing. She notes the International Commission of Jurists findings about violence and discrimination against sexual minorities and states that the associated claimant could be subject to anti-gay honor abuse in India. In this she is referring to recent-, research that says that in collectivist societies such as India where homosexuality is considered dishonorable, homosexuals are at great risk of violence and death. In sum, I find the law has changed but is not yet sufficiently entrenched that a young man can assert his identity freely and openly without a risk of occurring hate crimes. As such, I find the associated claimant has established a well-founded fear of persecution on the basis of his identity as a gay man.

State Protection and Internal Flight Alternative for the Associated Claimant

[25]     I find that the associated claimant has rebutted the presumption of adequate state protection in India. The res-, IRB Response to Information   Request quotes the International   Commission of Jurists for the proposition that the attitude and behaviour of the police is one of the biggest barriers to queer persons access to the justice system in India. In several cases, the police refused to file complaints submitted by queer persons owing to bias or stereotypes. Several people have spoken about violence, abuse and harassment that they suffered at the hands of the police. So queer people’s trust in the police is further eroded by the frequency of their negative interactions with the police, reducing the likelihood that they will seek protection. I further find that the associated claimant cannot avail himself of an internal flight alternative in India because the social distrust and loathing of gays extends across the country. The evidence indicates that LGBTQ communities are developing and they’re growing bolder in some cities, however, these communities are relatively small. I find that in all the circumstances, it would be objectively unreasonable to expect a person as young and vulnerable as the associated claimant to relocate to New Delhi or elsewhere in India.

[26]     Finally, I turn to the claim of the minor claimant. She is a 16-year-old girl. She no longer has a father. She says that she was attacked by [XXX] children throughout her schooling and by his goons in the market place in 2011 and again in 2017 shortly before her flight from India. The country reports in the National Documentation Package lead me to conclude that the minor claimant, a girl without a father or other close male relative in India to assist and protect her, faces a serious possibility of sexual violence. And for here, for this proposition, I turn to the UK Home Office report found at Tab 5.9 of the NDP which says that discrimination against women remains a major issue in India. Especially in the still extremely patriarchal north, women tend to be discriminated against from the outset in their families. With poor families, this means worse access to food and sanitation. Some substantial progress has been made as far as access to education is concerned but India’s female labor force participation rate has steadily declined. The report continues that central to the problem of gender-based violence is that Indian men and women have been socialized to believe that men’s dominance over women is normal and acts of women-, violence against women are justified.

[27]     The UK Home Office refers to findings of the UN Human Rights Committee Special Rapporteur that says that sexual violence including rape is widespread across the country and perpetuated-, perpetrated in public and private spheres. There is a general sense of insecurity for women in public spaces especially in urban settings. Women are easy targets of attack including sexual violence whether it yu-, involves using public transportation or sanitation facilities or on the way to collect wood or water. The report continues that many victims of sexual violence carry a deep sense of shame which is further exacerbated by the stigma and exclusion-, exclusion they experience, especially from family members and the community. The Home Office report also refers to the UN Special Rapporteur’s Observation that economic develop in India has bypassed women who continue to struggle at subsistence levels and this too increases their marginalization.

[28]     I have already addressed the reasons that I find that the adult female claimant cannot avail herself of an internal flight alternative in India and I find that the same reasons apply to the situation of the minor claimant. I find therefore that the minor claimant is unlikely to receive adequate state protection from the police and that the risk of sexual violence extends across the country. This forecloses the possibility of an internal flight alternative.

CONCLUSION

[29]     Based on the above analysis, I conclude that [XXX], the adult female claimant is a Convention refugee. I find that [XXX] is a Convention refugee based on his identity as a gay man. I find that [XXX] is a Convention refugee based on her membership in a particular social group namely, girls without fathers or other adult male protection. I accept your claims.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2020 RLLR 26

Citation: 2020 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: March 12, 2020
Panel: R. Bebbington
Counsel for the Claimant(s): Hannah Lindy
Country: Mexico
RPD Number: TB9-14699
Associated RPD Number(s): TB9-14767
ATIP Number: A-2021-00540
ATIP Pages: 000151-0000156


REASONS FOR DECISION

INTRODUCTION

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

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[3]       The female claimant alleges that her ex-partner is a member of the Los Zetas cartel in Mexico and she is a victim of domestic abuse. Should she return to Mexico she alleges her life is at risk. The complete allegations are set out in the Basis of Claim (BOC) Form,3 as well as the BOC amendments.4

DETERMINATION

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

ANALYSIS

[5]       The determinative issue(s) in this case are credibility, state protection, internal flight alternative.

Identity

[6]       I find that your identity as nationals of Mexico is established by your testimony and the supporting documentation filed including your passports.

Credibility

[7]       Unless specifically noted in the analysis below, I accept your evidence about your allegations of domestic abuse and the events associated with it that you encountered in Mexico as being generally credible.

[8]       The Refugee Protection Division (RPD) Rules require claimants to provide acceptable documents establishing their identity and other elements of the claim. I have drawn a negative inference to the credibility of your allegation that the Agent of Persecution (AOP) is a Los Zetas cartel member. You have not provided sufficient persuasive evidence that would reasonably be expected to identify this individual, nor a reasonable explanation why you were not able to obtain them.

[9]       You were questioned about providing documentary proof of the identity of [XXX], the alleged agent of persecution (AOP). The panel acknowledges that the AOP’s name appears on the copy of the birth certificates for your children, but I find beyond this you have provided little support to establish his identity or his identity as a member of the Los Zetas cartel.

[10]     You have provided a series of medical reports from [XXX] 2013,5 as well as a series of 2011 police witness statements from neighbours that state that they have witnessed bruising on the claimant.6 The witnesses describe the claimant’s partner ([XXX]) as an aggressive and threatening individual, much like his father and friends he associates with. The same documents contain another statement from a neighbour that describes the claimant’s partner as a drunk and aggressive. You have also provided a copy of a lawyer’s letter dated in 2011, that describes a statement from the claimant about the AOP and the abuse she has experienced. The letter states the claimant identified that her partner belonged to the “Zetas” cartel. I would note that this statement is simply based on self-reporting from the claimant.

[11]     The Panel finds upon review of all of the evidence, on balance there is insufficient persuasive evidence to confirm the alleged AOP is a member of a cartel and anything more than a local thug who has abused you. I find this lack of evidence to be unreasonable because of your long-term relationship with this individual, as well as your alleged long term and continued contact with his family members. In addition, your statements at the hearing and in your amended BOC narrative confirmed that all of your neighbours and a number of your friends and relatives have interacted with this individual. Yet, when questioned about obtaining additional affidavits from any of those individuals you testified that you had not considered it. I find on a balance of probabilities that you have not provided evidence to confirm the identity of the AOP as a member of the Los Zetas cartel and that your problems are limited and local to your home area of Oaxaca.

Contact With the AOP

[12]     You have alleged that you continue to receive threatening messages from the AOP. When you were asked to explain how and when you received these messages you stated they came in the form of Facebook messages. I note that you have provided copies of photographs of messages from your telephone or tablet.7 Upon examining these messages, the panel notes the name of the individuals on the text is not that of the AOP. I further note that there is no way to ascertain the contact information or identity of the individual who sent the messages. The claimant described that the AOP was using an alias, the panel is unable to assess whether that is true or not. The panel places little evidentiary weight on the copies of photographs of the text messages submitted in evidence. Therefore, I draw a negative inference concerning your credibility by reason of your failure to adduce corroborating documentary evidence as to the association ofyour partner with the Los Zetas cartel and ongoing threats from the AOP.

[13]     You allege that the AOP has been able to locate you on numerous occasions in Mexico. Your testimony and statements confirm that you have maintained social media profiles where you have received messages and threats from the AOP. You have confirmed in your evidence that you have corresponded with the AOP when receiving these messages. You have further confirmed in your evidence that you have maintained contact with the sister and mother of the AOP, yet you state they are not interested in assisting you. I find it reasonable to believe that these interactions could provide the AOP with details as to your location.

Internal flight alternative

[14]     I have considered whether a viable internal flight alternative (IFA), exists for you and the male claimant.

[15]     I acknowledge that the complicating concern in this situation is that you have children with the AOP and at this time the AOP has taken custody of the children. In your BOC narrative, as well as your testimony you confirm that should you return to Mexico you will continue to make efforts to contact your children and seek some form of custodial relationship.

[16]     The female claimant testified that in the past the AOP has threatened to kill her or the children if she starts custody proceedings against him. The panel acknowledges Counsel’ s submission that if the female claimant initiates legal proceedings in Mexico, she would have to face the AOP, and he would be able to easily locate her.

[17]     The Federal Court has found that the Board cannot find an IFA is available or reasonable where a condition of its viability is that the claimant does not try to get custody of her children. The Court in Calderon8 found it would be “unduly harsh and unreasonable to expect the [claimant] to foreswear any efforts or attempts to re-secure custody of her young children.” That particular case involved a similarly situated claimant from Mexico.

[18]     I find in considering the fact that you will and should pursue custody of your children that there are no other parts of the country, where you would not face a risk to your life or a risk of cruel and unusual treatment or punishment. Hence the concept of a viable IFA will not stand.

State Protection

[19]     The objective documentary evidence states:

The Bertelsmann Stiftung mentions in its 2016 Mexico Country Report that there are “thousands of unresolved crimes of violence against women in many regions….” In its world report covering the year 2015, Freedom House notes that perpetrators of domestic violence “are rarely punished.” The report continues to state: “Implementation of a 2007 law designed to protect women from such crimes remains halting, particularly at the state level, and impunity is the norm for the killers of hundreds of women each year.”9

[20]     The panel finds that the documentary evidence supports a finding that state protection in respect of gender-based violence in Mexico can be described as limited at best. The literature describes efforts to address a long-standing culture of acceptance of domestic abuse, but despite strong existing legislation protecting women’s rights and preventing violence against women, enforcement varies widely and largely depends on social norms, pointing to potential gaps between the de jure laws and the de facto practices.10

[21]     The panel finds that in the particular circumstances of this claim that adequate state protection would not be reasonably forthcoming.

CONCLUSION

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

(signed)           R. Bebbington

March 12, 2020

1 Immigration and Refugee Protection Act, 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 3, Basis of Claim (BOC) Form, TB9-14699, received June 6, 2019.
4 Exhibit 5, BOC Amendments, received February 2, 2020; Exhibit 8, BOC Amendments, received February 3, 2020.
5 Exhibit 6, Claimant’s Personal Disclosure, received January 27, 2020, at pp. 25-31.
6 Ibid., at pp. 16-24.
7 Ibid., at pp. 32-46.
8 Calderon, Sonia Blancas v. M.C.I. (F.C., no. IMM-5367-08), Near, March 8, 2010, 2010 FC 263, para. 17.
9 Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), Item 5.3, s. 3.
10 Ibid., Item 5.11, s. Protecting Women from Violence.

Categories
All Countries Haiti

2020 RLLR 15

Citation: 2020 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: January 14, 2020
Panel: R. Riley
Counsel for the Claimant(s): Lisa Winter-Card
Country: Haiti
RPD Number: TB8-23375
Associated RPD Number(s): TB8-23445, TB8-23446, TB8-23447
ATIP Number: A-2021-00540
ATIP Pages: 000103-0000106


DECISION

[1]       MEMBER: These reasons will stand as the decision in this case. The reasons given orally today will be rendered into writing and the claimants and their lawyer will receive the written version, within a matter of weeks.

Allegations

[2]       The claimants allege that they are citizens of Haiti.

[3]       The principal claimant, [XXX], was appointed designated representative for the minor claimants.

[4]       The principal claimant indicated that she was married to the father of the children, in 2004 and that serious abuse, including sexual assaults, began against her around 2007. The abuse continued up to her divorce in 2018, at which time the principal claimant and the minor claimants left Haiti.

[5]       The principal claimant has received indications that her former husband remains angry with her and intends to pursue her and cause harm to her.

[6]       The claimants state that the government of Haiti will not protect them and that there is no safe place for them anywhere in Haiti.

Identity

[7]       The claimants have provided their passports and their Haitian birth certificates. The panel is satisfied as to the Haitian citizenship and the persona) identities of the claimants.

Credibility

[8]       The principal claimant’ s testimony was straightforward and spontaneous and there was no inconsistency or contradictions between her Basis of Claim Form and her oral testimony.

[9]       The panel accepts the evidence of the principal claimant on the core issue of continued fear of domestic violence if she were to return to Haiti. The panel finds the evidence of the principal claimant to be credible and trustworthy.

Documentary Evidence

[10]     The evidence of the principal claimant was consistent with the objective evidence found in the National Documentation Package with respect to Haiti’s treatment of the victims of domestic violence.

[11]     So, for instance, at Item 2.1 of the NDP, which is the annual report of the U.S. Department of State, it’s indicated that domestic violence in Haiti, domestic violence against women in Haiti, is commonplace. It also states that, victims of sexual violence face major obstacles in seeking justice.

[12]     At Item 5.12 of the NDP, we have a report from the French office that deals with refugees. It quotes the Haitian Prime Minister, in 2015, as saying, in respect of a rape accusation against a prominent politician, that:

“Rape is a private matter and of interest only to the complainant.”

It goes on to say that:

“Domestic violence is commonplace, tolerated and hidden from view.”

[13]     Item 5.13 of the NDP is a report on domestic violence in Haiti. The report reminds us that violence based on gender is recognized throughout the world as a violation of a fundamental human right and at page 9 of that report, it indicates that only 11% of Haitian women involved in domestic violence had tried to contact police.

[14]     This is an illustration of the lack of confidence that Haitian women have in the police of Haiti to give them any kind of help.

[15]     The claimant was not in a position to provide any medical evidence as to abuse but the panel noted the e-mail from the claimant’s former husband, found at page 5 of Exhibit 5. The panel had reference to the translation found at page 4 of that exhibit and the panel notes that the ex-husband admits to sexual assault of his then wife and he provides the following justification:

“It was better for him to sexually assault his spouse than to cheat on her.”

[16]     The panel also notes the testimonials from persons in Haiti who knew both the husband and the wife and it’ s obvious that the former husband was very quick to anger when one reads pages 7 and 9 of Exhibit 5.

[17]     So, all in all, there’s a harmony which reflects the allegations found in the Basis of Claim Form and the documentary evidence. The documentary evidence supports the allegations made by the principal claimant and reinforces her credibility.

State Protection

[18]     Given the documentary evidence on domestic violence in Haiti, the panel is satisfied that it would not be reasonable for the principal claimant to ask the State of Haiti for protection.

Internal Flight Alternative

[19]     The principal claimant testified that, no matter where she settled in Haiti, her former husband still had the intention to pursue her and cause her harm, no matter where she would be in Haiti.

[20]     The panel is satisfied that the documentary evidence indicates that the government of Haiti has no interest in protecting its female citizens, throughout of all of its territory.

[21]     The panel concludes that it would not be reasonable for the principal claimant to seek an internal flight alternative, in Haiti.

Conclusion

[22]     Having considered all of the evidence, the panel determines that the claimant, [XXX], has satisfied her burden of establishing that there is a serious possibility of persecution on a Convention ground if she were to return to Haiti.

[23]     The panel, therefore, concludes that the claimant, [XXX], is a Convention refugee and the Division accepts her claim.

[24]     With respect to the minor children, the principal claimant was honest in admitting that they had not faced violence before and that the likelihood of abuse at the hands of their father was too remote for them to seriously claim protection in Canada.

[25]     No evidence was advanced to suggest that the minor claimants are at risk for a Convention reason, if they return to Haiti.

[26]     The panel is confident that the principal claimant will apply for permanent residence and include her children in such application

[27]     The minor claimants, [XXX], [XXX] and [XXX], are not Convention refugees and are not persons in need of protection and the Division rejects their claims.

[28]     I wish you the very best in the future, Madame.

 ——— REASONS CONCLUDED ———-

Categories
All Countries Democratic Republic of Congo

2020 RLLR 3

Citation: 2020 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: August 20, 2020
Panel: Anika Marcotte
Counsel for the Claimant(s): Nico Breed
Country: Democratic Republic of Congo
RPD Number: VB9-08742
Associated RPD Number(s): VB9-08743
ATIP Number: A-2021-00540
ATIP Pages: 000020-000027


REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] as a citizen of Congo-Brazzaville and her minor child [XXX] who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the ” Act”).1 The claimants’ minor son, [XXX], is a citizen of the United States (US). As such, his claim will be assessed against that country.

[2]       At the start of the hearing, the principal claimant was designated as the representative for the minor claimant.

[3]       In rendering my reasons, I have considered and applied the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[4]       The principal claimant has outlined her reasons for seeking Canada’ s protection in her Basis of Claim (BOC) form2, as well as through her testimony. The principal claimant fears returning to Congo- Brazzaville because she fears further physical and sexual violence at the hands of Mr. [XXX] the minor claimant’ s father.

DETERMINATION

[5]       I find that the principal claimant is a Convention refugee pursuant to section 96 of the Act.

[6]       I find that the minor claimant is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to subsection 97(1).

Identity

[7]       The principal claimant’s identity as a national of Congo-Brazzaville is established by her testimony and passport3 in evidence. The claimant’s minor son’s identity as a national of the US is established by his passport.4 I am satisfied of their identity by these documents.

Countries of Reference

[8]       In order for a claim for refugee protection to be successful, the Act requires that a claimant must establish a claim against each of their countries of nationality.

[9]       The minor male claimant did not advance a claim against the US. Indeed, there is no evidence before me that he faces a risk of persecution or a risk to life or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture, in the US. Accordingly, his claim for protection is rejected.

Credibility

[10]     In refugee determination cases, there is a presumption that claimants and their allegations are truthful, unless there are reasons to doubt it. I found the principal claimant to be a credible witness and therefore believe what she alleged in support of her claim. She testified in a straightforward manner, offering spontaneous answers to my questions. In this case, there were no material inconsistencies or contradictions within the claimant’s testimony that were not reasonably explained or that undermined her credibility with respect to her allegations.

[11]     I find the principal claimant’s testimony credible and believed the allegations in support of her claim. She met the agent of harm in 2015 while she worked in her grandmother’s restaurant. His bodyguard approached her asking for her phone number telling her Mr. [XXX] found her attractive. The claimant noted that she was aware that the agent of harm was the [XXX] of the President, a [XXX] She also knew that he had two [XXX]. She provided her phone number and Mr. [XXX] called her to set up a meeting. Over the course of 2015 to 2017 the agent of harm provided the claimant with an apartment in Pointe Noir and Brazzaville where he would come spend time with her. He also provided her with two bodyguards who would act as chauffeurs, run errands for her and monitor her. A few months into their arrangement the agent of harm started to physically and sexually assault her. She never sought protection from the police as she feared her assailant’ s power over the police and that they would not take claims of domestic abuse seriously. In [XXX] 2017, the violence escalated to such a point that the claimant passed out and was brought to the hospital the next day by a maid. At the hospital she learned that she was pregnant and decided to leave for the US in [XXX] 2017.

[12]     The principal claimant returned to Congo-Brazzaville in [XXX] 2017 in order to get her older child that she had left with her mother, as she feared for her safety after the agent of harm had contacted her mother asking her whereabouts. The claimant met with Mr. [XXX] in [XXX] 2017 after he reached out to her. During that encounter, he threatened her and her children. During this encounter she found the agent of harm in a sexually compromising situation with the claimant’s minor daughter. Fearing for her life and those of her children the principal claimant left for the US in [XXX] 2017.

[13]     The principal claimant submitted corroborative documents including identity documents, birth certificates and letters from the hospital5 consistent with her BOC6 and testimony. The objective country conditions evidence in the National Documentation Package (NDP) also substantiates the claimant’s allegation concerning the prevalence of domestic abuse in Congo­ Brazzaville. Based on the presumption of truthfulness, the claimant’s testimony, and the corroborative evidence, I find, on a balance of probabilities, the principal claimant to be a credible witness who has established that she is the victim of domestic violence at the hands of her former partner.

Well-Founded Fear of Persecution and Risk of Harm

[14]     I find that the principal claimant has established sufficient credible evidence to demonstrate that she faces more than a mere possibility of persecution if she returns to Congo­Brazzaville.

[15]     The agent of harm demonstrated his motivation in seeking out the principal claimant upon her return to the Congo-Brazzaville, as well as through ongoing inquiries as to her whereabouts with the principal claimant’s mother. The principal claimant also testified that the agent of harm did not want her to have his child and fears severe repercussions should she return to the country. This demonstrates a prospect of further violence if the claimant returns to Congo­Brazzaville.

[16]     I find that the claimant has a well-founded fear of persecution based on her membership in a particular social group based on her gender as a woman, which is an immutable characteristic as defined in the Ward case.7 As her fear of persecution is based on belonging to a particular social group, her allegations form a nexus to a Convention ground.

[17]     According to Country Reports 2013, domestic violence against women, which includes rape and beatings, is “widespread” in the Republic of the Congo8 (US 27 Feb. 2014, 20). According to the report by APC and AZUR développement, the rate of domestic violence and incest across the country is [translation] “rather high,” and “two thirds of all cases of violence reported to the police and the gendarmerie concerns various forms of domestic violence” (ibid., 5, 7).9

[18]     The objective evidence further highlights that among the human rights violations committed in 2013 in the Republic of the Congo, the US Department of State’s Country Reports on Human Rights Practices for 2013 reports acts of discrimination and violence against women, including acts of domestic violence and sexual violence (US 27 Feb. 2014, 1). Amnesty International (AI) points out that [AI English version] “serious human rights violations” including cases of rape and other sexual violence occurred in 2014 in the Republic of the Congo (AI 2015). In correspondence sent to the Research Directorate, the Executive Director of AZUR développement, an association [in Brazzaville] located in nine departments in the country (AZUR développement n.d.) that aims to advance women’s rights and fights violence against women (APC and AZUR développement Mar. 2015, 4), states that,

[translation] [w]omen are subjected to various forms of violence daily, in particular, physical violence, such as beatings and injuries […]; sexual violence (rape, sexual harassment […]); [and] mental violence (insults, slander, verbal threats) (AZUR développement 14 Apr. 2015).

According to the Congolese Minister for the Promotion of Women and Women’s Integration into Development (Promotion de la femme et de l’Intégration de la femme au développement), women and children are subjected to sexual harassment and psychological violence in their family, at school, at work or in the street on a daily basis (Republic of the Congo 5 Mar. 2013, 3).10

[19]     Based on the claimant’ s history of abuse by the agent of harm, the influential position of the agent of harm, and the objective evidence, I find that there is a serious possibility of persecution if the claimant were to return to Congo-Brazzaville.

State Protection

[20]     I find that adequate state protection would not be reasonably forthcoming in this particular case. According to the objective evidence significant human rights issues in Congo­ Brazzaville include (…) violence against women and girls to which government negligence significantly contributed (…). The government took limited steps to prosecute or punish officials who committed abuses, and official impunity was a problem.11

[21]     Though the objective evidence indicates that Congo-Brazzaville has some legislative framework for rape, Country Reports 2013 states that “the government [has] not effectively enforce[d] the law” regarding rape and sexual harassment (US 27 Feb. 2014, 20-21). According to that same source, a Congolese women’ s group stated that “the penalties for rape ranged from as little as several months’ imprisonment to rarely more than three years,” and local and international Non-Governmental Organizations (NGOs) have observed that “[f]ewer than 25 percent” of reported rape cases were prosecuted in 2013 (ibid., 20).12

[22]     The principal claimant testified that she never sought police protection given the high- level status of the agent of harm and that police would see this as a domestic matter, which is corroborated with the objective country evidence.

[23]     Given the objective evidence and the influential position of the agent of harm I find that there is no operationally effective state protection available to the claimant in this particular circumstance and that the presumption of state protection is rebutted.

Internal Flight Alternative (IFA)

[24]     Based on the evidence before me, I find that the principal claimant would face a serious possibility of persecution throughout the country given the profile of the agent of harm with his political connections and as a colonel in the army. Documentary evidence points that military members can act with impunity and that given the agent of harm’s position, resources at his disposal and motivation he demonstrated in seeking the principal claimant when she initially left him and then when she returned to the Congo- Brazzaville, I do not find that there is a viable IFA available to the principal claimant in this case.

CONCLUSION

[25]     Having considered all of the evidence, I find that the principal claimant is a Convention refugee as set out in section 96 of the Act. Her claim is therefore accepted.

[26]     I find that the minor claimant, [XXX] is neither a Convention refugee as laid out in section 96 of the Act, nor a person in need of protection as per section 97(1) of the Act and reject his claim.

(signed)           Anike Marcotte

August 20, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Exhibit 2.
3 Exhibit 4.
4 Exhibit 1.
5 Exhibit 6, and 7.
6 Exhibit 2.
7 Ward: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85
8 Republic of the Congo and Congo-Brazzaville are the same country.
9 Exhibit 3, National Documentation Package (NDP, Republic of the Congo, April 30, 2020, Item 5.3, Response to Information Request (RIR) COG105144.FE.
10 Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.
11 Exhibit 3, NDP, Item 2.1.
12 Exhibit 3, NDP, Item 5.3 RIRCOG105144.FE.

Categories
All Countries Nigeria

2019 RLLR 38

Citation: 2019 RLLR 38
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2019
Panel: Isis van Loon
Country: Nigeria
RPD Number: VB9-00362
ATIP Number: A-2021-01124
ATIP Pages: 000217-000225


— DECISION

[1]       PRESIDING MEMBER: [XXX], the principal claimant, and [XXX], the minor claimant, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintain the designation of [XXX] as the representative for the minor claimant pursuant to subsection 167(2) of the Act in Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules. When rendering my Reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[2]       The principal claimant alleges that if she returns to Nigeria she will be forced to marry her brother-in-law, who has sexually assaulted her a number of times. The brother-in-law will also take her son and force him to undergo rituals. As well, the claimants are at risk from Fulani herdsmen, who burned down their village in [XXX] 2016, which forced the claimant to live with her missing husband’s family in their village.

[3]       I find that the claimant has established she faces a serious risk of persecution on a Convention ground in Nigeria. My reasons are as follows. I also find the minor claimant faces a serious risk of persecution on a Convention ground.

IDENTITY

[4]       The claimants’ identities and citizenship as nationals of Nigeria was established by the principal claimant’s testimony and supporting documentation filed, including certified true copies of their passports in Exhibit 1.

CREDIBILITY

[5]       The principal claimant testified in a straightforward manner with no inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. I found her to be a credible witness and, therefore, have accepted as generally true the facts that she alleged in support of her claim. Unless I specifically note in my analysis, as I said, I found her generally credible and the minor claimant did not testify.

[6]       The principal claimant provided the following relevant and probative documents in Exhibit 4. There was a Nigerian Police report from [XXX], 2015, reporting her missing husband; a medical report from [XXX], 2017, after a sexual assault, and numerous affidavits from friends and family, all attesting to the treatment by the principal claimant’s brother-in-law, as well as her subsequent actions.  I found those documents were relevant and served to corroborate the principal claimant’s core allegations, in terms of nexus, I found the persecution the principal claimant faces has a nexus to the Convention ground of membership in a particular social group, as a woman at risk of sexual violence and forced marriage. With the minor claimant, there’s a nexus to that of a child at risk of literal abuse.

[7]       In order to be considered a Convention refugee, a claimant has to demonstrate a well-founded fear of persecution, including subjective fear and objective basis for that fear. Based on the testimony, supporting documents and country condition documents, I found the claimants do have a well-founded fear of persecution for the following reasons.

[8]       In terms of subjective fear, the principal claimant initially attempted to resist the forcible advances of her brother-in-law, [XXX]. After a sexual assault by [XXX] on [XXX], 2017, she escaped with the minor claimant to [XXX]. [XXX] located her there within a week, continued to threaten her. With the assistance of her friend, she made arrangements to leave as quickly as possible and did so when they had sufficient funds, arriving in the USA on [XXX], 2017.

[9]       Fearing Trump policies against refugees, she decided to come to Canada, which she did [XXX] of 2017, and claimed asylum. Based on her actions and the timing thereof, as well as her credible testimony, I found the claimants have adduced sufficient credible evidence to establish a subjective fear of persecution in Nigeria.

[10]     The principal claimant testified about the series of events that started with the disappearance of her husband on [XXX], 2015. She reported this to the police and checked in with them, but no progress on the investigation had occurred. When the Fulani burnt her home on [XXX], 2016, she fled to her husband’s village to stay with her in-laws there. In [XXX] of 2016, her brother-in-law [XXX] sexually assaulted her. On [XXX], 2017, the family had a meeting where they decided that tradition should be followed or bad things would happen in their village and to them and this meant that the principal claimant would have to marry her brother-in-law [XXX] as they believed by that time that her husband was deceased.

[11]     She refused to follow this tradition and fled after [XXX] sexually assaulted her with a weapon on [XXX], 2017. Sam located the claimants in [XXX] about a week later and threatened them again that they needed to undergo the ritual and the principal claimant needed to marry him. She testified about the specific ritual that was to be undergone by both her and her son, where they were to be cut and marked in various areas and have cow’s blood and other things rubbed into these during an event that would take about three days.

[12]     She also spoke of [XXX] (phonetic), a woman from her husband’s village that she knew. She met her after she got married and a similar type of thing happened. Her husband went missing at the hands of the Boko Haram or the Fulani herdsmen and, according to tradition, the people would force the woman to marry the husband’s brother. This woman, however, [XXX], she refused and she was killed when she refused to marry the brother by the brother. This was in 2014 and apparently she knew that [XXX] had gone to the police and the police said that they couldn’t do anything and said it was just a family matter. In effect, the country documentation confirms that these traditional things are often treated as a family-related incident and the police tend not to get involved. The country documentation evidence also confirms that sexual violence against women is common and that ritual activities continue. Based on all the evidence before me, I found the claimants would face a serious possibility of persecution if the were to return to Nigeria and be found by [XXX].

[13]     In terms of state protection, except in situations where a state is in complete breakdown, states must be presumed capable of protecting their citizens. I found, however, that adequate state protection would not be reasonably forthcoming in this particular case. The principal claimant described how she had not reported the sexual assaults by [XXX] as she was afraid the same thing would happen to her as happened to Nagosi and she described how [XXX] actually threatened to kill her if she did report to police.

[14]     There are a number of laws that exist to protect women against violence and these have been strengthened by the Violence Against Persons Prohibition Act in 2016. However, they are not effectively implemented in practice and are quite variable. There is no comprehensive law for combatting violence against women and, as a result, victims and survivors had little or no recourse to justice, according to the NDP 2.1. Police response is often poor and despite the existence of some laws, the persecution rates for domestic violence are low. It’s uncommon for cases to reach persecution. The burden of proof is on the victim according to NDP 5.3. Additionally, there are few shelters and restraining orders provide minimal, if any, protection in practice.

[15]     In a Response to Information Request from the IRB, a doctoral candidate states about victims of ritual practices that to his knowledge the police response is not recognized and institutionalized. He further stated that based on his direct observation and research experience over five years in Southern Nigeria, that Nigerian police officers tend to be discriminatory in their treatment of victims of ritual practices, particularly for women, and that this attitude is formed by customary norms and the subjugation of women in most Southern Nigerian societies.

[16]     The same source added that a lack of trust in the police also inhibits the reporting of ritual practices, especially by women. Furthermore, according to this source, police officers are themselves often a part of the culture in which ritual practices take place and they can have difficulty recognizing whether ritual practices are criminal or not and they weigh the evidence also against the religion rights and intent of the ritual practices.

[17]     Similarly, another source noted that because Nigerian police officers themselves come from communities where different rituals apply, they have to respect the culture and traditions and they’re reluctant to provide protection to someone who is refusing to undergo a ritual. So I find that in terms of both the sexual violence and the traditional and ritual aspects of this that state protection would not be adequate nor reasonably forthcoming for the claimants in this case and, therefore, the presumption of state protection is rebutted.

[18]     At the beginning of the hearing, I proposed several cities as internal flight alternatives, Benin City, Port Harcourt or Abuja. The principal claimant testified that there are family members of her in-laws in both Port Harcourt and Abuja, so I primarily focused from then on, on Benin City. An internal flight alternative arises when a claimant, who otherwise meets all the elements of the definition of a person in need or protection or as a Convention refugee in their home area of the country, nevertheless is not in need of protection because they would live safely elsewhere in that country.

[19]     There is a legal test, which has two prove to be satisfied that the claimants would not face a serious possibility of persecution in the part of the country in which I found an IFA exists and 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 claimants, for them to seek refuge there.

[20]     If either prong of the internal flight alternative test fails, then there is no viable internal flight alternative. I’ve started, in fact, with the second prong about whether or not the proposed IFAs are reasonable. At the beginning of the hearing I proposed, as I said, Port Harcourt, Abuja and Benin City, but primarily focused on Benin City. Having found the claimants face a serious possibility of persecution from the agent of harm, I have turned to the second prong of the IFA test, the test used in Canadian refugee jurisprudence, to assess whether a claimant could travel to and remain in a safer area of their countries, whether it would be unduly harsh to expect the claimant to do so. There’s a very high threshold for this unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling to or relocating to a safe area and it requires actual and concrete evidence of such conditions.

[21]     I’ve considered whether it would be reasonable to expect the claimants to travel to and relocate in any of the proposed IFAs. An IFA has to be realistically accessible. If a claimant would encounter physical danger travelling there, if they would encounter persecution while en route or they would otherwise be barred from travelling to an area then an IFA location would not be viable. However, the Nigerian Constitution provides for the right to travel within Nigeria. The country condition documents show that Nigerians, including women, can and do move freely throughout most of the country, including the IFA proposed cities.

[22]     With respect to the burden of proof, the Court of Appeal in Rasaratnam (phonetic) has held that once an IFA is raised, the onus is on the claimant to show that they don’t have one. The burden, as I said, is fairly high in order to show that an IFA is unreasonable. In fact, the Federal Court of Appeal stated that to show an IFA is unreasonable requires nothing less than the existence of conditions jeopardizing the life and safety of a claimant in relocating to that place.

[23]     The Chairperson identified the Refugee Appeal Division decision for TB7-19851 as a jurisprudential guide. I’ve considered this guide and the decision of the Refugee Appeal Division in which the jurisprudential guide in question is based analyzes the viability of an internal flight location within Nigeria for single women. That concludes more broadly than internal relocation and Nigeria is generally considered to be viable for refugee claimants fearing non-state actors. In this case, the RAD decision established there are several large multilingual, multi-ethnic cities in South and Central Nigeria which include the IFAs mentioned, where persons fleeing non-state actors may be safely able to establish themselves, depending upon their particular circumstances.

[24]     There’s a non-exhaustive list of factors that may be considered in determining whether the conditions in an IFA render it objectively unreasonable for the claimant. These factors are travel, transportation, language, education, employment, accommodation, healthcare, culture, (indiscernible) and religion. Additionally, the Chairperson’s Gender Guidelines specifically instruct decision makers to consider whether and how these factors affect women in the IFA.

[25]     The cm before me is both a single woman and the mother of a young son, so she’s a single mother, unlike the single woman who had no children in the jurisprudential guide case. The principal claimant has some post secondary education, but in this case her work experience is quite limited. She worked partly while as a student and then on her husband’s farm after she was married. So she does have some experience in farming.

[26]     The principal claimant testified, and the country documents support this, there are real difficulties for women in obtaining employment and housing and that this is exacerbated when a woman does not have family assistance and support. Family can help members to find housing, as well as work. In Nigeria, women need adult male members of family or other males to provide references and sign for them, particularly with respect to housing. Usually this is done by male family members.  The claimant herself stated that if she had family in the IFA she could rely upon them to care for her son, if she was able to find work, and that she would need to support herself and her son. Her family has to date refused to support her and, in fact, advised her to follow the traditional practices that her brother-in-law has been demanding.

[27]     She initially fled to [XXX] to stay with her sister, but her sister turned her out. So her family has told her to follow traditional practices, marry [XXX] and undergo the ritual that will ensure her husband’s ghost did not return to haunt the family. I’m satisfied, on a balance of probabilities, that these claimants have no family support in Nigeria and this will negatively impact their ability to find housing and employment, as well as assisting with childcare.

[28]     According to the jurisprudential guide, unemployment is generally high in Nigeria and work can be difficult to find. There are more female-headed households in the south than in the north and it is generally easier for women to obtain work in the south than in the north but, quite frankly, this is not saying a lot and it certainly doesn’t say that it is easy for women to find work. The J.G. says that where a claimant has achieved post secondary education or has meaningful work experience, they may be in a better position of securing employment than the average Nigerian.

[29]     This claimant does have some post secondary education, but her Nigerian work experience is limited to farming and some past office work that she did as a student. Additionally, she has a young child, the minor claimant, in her care, and without family or contacts, she would have to find a way to ensure safe childcare while she worked if she was able to find work. She has no connections in the IFAs. She speaks a different dialect from the locals and she would face great difficulty in finding employment, which is sometimes based on indigeneship or family connections. The J.G. states that in order for a single woman to get a reasonable job in — they were talking about Port Harcourt or Ibadan in that case, or presumably other large cities, she would need to have the help of someone influential or rich and also that it is easier for single women with high education and high social status to use this status to give them access to people who are in power who could assist her to find work. I’m satisfied that the principal claimant, as a single mother, albeit with some degree of education, but with limited work experience and with no high status standing and, therefore, no connections that that would bring, she would face extreme difficulty in finding work.

[30]     The NDP 5.9 shows that it can be difficult for women to find housing, in part due to the cost and in part if they do not have male assistance. While the north of the country is once again even worse, the south is still very difficult for women. In particular, the ability to find gainful employment, according to NDP 13.1, is a key factor in finding housing. I’ve already discussed my views on the difficulty this claimant faces in finding employment and I am satisfied that without work she would have great difficulty in supporting herself and her son in terms of housing, as well as food and other necessary item and the Nigerian state has little to no social supports available to assist her.

[31]     The claimant stated the indigeneship would be a factor, making it difficult to relocate. The documents show that this is less of an issue in large cities, such as Benin City. However, there are difficulties for those who are not indigenes. The EASO states that indigenicity facilitates settling in a given area.  However, it does not constitute a requirement. This document notes that non-indigenes, such as the claimants, without familial connections or financial means, may find relocation more difficult. The claimant also testified that language would be an issue as she does not speak local dialects. While she does speak some English and, in fact, testified occasionally in English during the hearing, I am still cognizant that despite English being an official language of Nigeria, her inability to speak the local dialects would also put her at a disadvantage among those who do not speak English and who might potentially assist her with housing or employment.

[32]     The claimant also testified that single mothers are frequently discriminated against and seen as sexually available, which leads them to experience high levels of sexual violence and sexual harassment. She said this was both through work and potentially with landlords. The country documents show that women in general and single women or women heading households do indeed experience high levels of this mistreatment, particularly when there are no family members, most likely male family members, to protect them. I accept as a single mother that the claimant would be more vulnerable to gender-based mistreatment than would a woman who was supported with or by a adult male and family.

[33]     In terms of religion, the country evidence shows that Christianity is widespread in Nigeria, particularly in the south, and thus I don’t find religion, in itself, to be a barrier to relocation. A recent Response to Information Request said that sometimes religious communities can assist in the process of resettlement in some of the similar cities to Port Harcourt, Lagos and Abuja. While religious community may, in fact, be helpful despite the principal claimant’s belief that it would be largely limited to the occasional donation of food, I’m not satisfied that we can rely on religious assistance to be sufficient to overcome the more serious impediments to the claimants in resettling that I have already mentioned with respect to lack of family support, housing and extreme difficulties in obtaining employment.

[34]     Finally, I further note that the principal claimant testified of having an anxiety attack which necessitated a 911 intervention here in Canada. Her demeanour during the hearing clearly demonstrated emotional fragility and she broke down several times during the hearing, necessitating time to compose herself in order to continue. Her emotional state is supported by a psychological assessment in which she was diagnosed with [XXX] and [XXX] in [XXX] of 2029. That’s Exhibit 4, pages 35 to 40. She has attended counselling as a psychologist recommended, based on their assessment and she said that she plans to continue.

[35]     Based on the psychologist’s findings, they concluded that, based on her trauma-related conditions with which they diagnosed her, it would impair her recovery if she had to return to Nigeria where she is convinced that [XXX] would find and harm her and the minor claimant. There are facilities for both basic medical and mental healthcare according to NDP 1.9. The country condition documents though show that Nigerians have to pay for healthcare, as well as education, and that access can be difficult for this reason. For a single mother with many impediments to finding access to money such as employment, I’m satisfied that she would face significant difficulties in accessing mental healthcare if she wished to continue treatment in Nigeria as well.

[36]     The claimant testified there would be difficulties with education for her child and that she would be unable to pay fees if she was not employed as the country condition document I’ve just referenced shows that education comes with costs and concerns that the minor claimant would be negatively impacted with respect to his basic education.  Having considered the conditions in the internal flight alternatives, particularly Benin City, and all the circumstances of this case, including those particular to the claimants, I find that the claimants have established on a balance of probabilities that it would be objectively unreasonable or result in undue hardship as those terms are understood in Canadian refugee law for them to seek refuge in the proposed IFAs of Benin City, Port Harcourt or Abuja.

[37]     Based on the totality of the evidence, I’ve concluded the claimants are Convention refugees and accordingly, I have accepted their claims.

— DECISION CONCLUDED