Tag: PSG: Gender Based Violence

Categories
All Countries Barbados

2020 RLLR 148

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

DECISION

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

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

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

ALLEGATIONS:

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

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

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

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

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

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

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

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

DETERMINATION:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[78]   Thank you. We are concluded.

———- REASONS CONCLUDED ———-

Categories
All Countries Jordan

2020 RLLR 147

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

REASONS FOR DECISION

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

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

ALLEGATIONS

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

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

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

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

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

DETERMINATION

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

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

ANALYSIS

Identity

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

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

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

Credibility

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

Principal Claimant

Potential Exclusion under Article 1(f)(b)

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

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

Abduction

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

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

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

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

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

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

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

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

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

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

Countries of Former Habitual Residence (CFHR)

Egypt

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

Syria

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

Saudi Arabia

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

Well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

State Protection

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

Internal Flight Alternative

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

Minor Claimant

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

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

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

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

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

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

            …

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

[8] Exhibit 3, NDP, Item 5.2.

[9] Exhibit 3, NDP, Item 5.1.

[10] Exhibit 3, NDP, Item 5.5.

[11] Exhibit 3, NDP, Item 2.4.

[12] Exhibit 3, NDP, Item 2.2.

[13] Exhibit 3, NDP, Item 2.5.

[14] Exhibit 3, NDP, Item 5.2.

[15] Exhibit 3, NDP, Item 2.1.

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

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

[18] Chavez Carrillo 2012 FC 1228.

Categories
All Countries Mexico

2020 RLLR 131

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

REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

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

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

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

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

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

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

DETERMINATION

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

IDENTITY

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

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

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

CREDIBILITY

[15]     The panel is cognizant of the leading jurisprudence on the issue of credibility. Maldonado[17] stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness.

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

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

WELL-FOUNDED FEAR OF PERSECUTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STATE PROTECTION

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

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

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

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

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

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

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

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

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

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

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

INTERNAL FLIGHT ALTERNATIVE (IFA)

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

Rasaratnam and Thirunavukkarasu:

(1)       As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”[51] and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.

(2)       Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.[52]

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

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

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

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

CONCLUSION

[45]     For the above mentioned reasons, the panel finds [XXX] to be a Convention refugee. The claimant has established that there is a reasonable chance of persecution, if she were to return to her country of nationality, Mexico, today.

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

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

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

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

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

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

[7] Ibid., lines 41 – 44.

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

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

[10] Ibid., lines 33 – 35.

[11] Ibid., lines 96 – 102.

[12] Ibid., at pp. 114 – 116.

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

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

[15] Ibid., at pp. 3 – 4.

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

[17] Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).

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

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

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

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

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

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

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

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

[26] Ibid., lines 210 – 211.

[27] Ibid., lines 214 – 216.

[28] Ibid., lines 234 – 237.

[29] Ibid., lines 245 – 250.

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

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

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

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

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

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

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

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

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

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

[40] Ibid., at p. 31.

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

[42] Ibid.

[43] Ibid.

[44] Ibid.

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

[46] Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Letourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38.

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

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

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

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

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

[52] Thirunavukkarasu, Sathiyanathan v. M.E.I (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

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

Categories
All Countries Pakistan

2020 RLLR 117

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

REASONS FOR DECISION

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

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

Identity

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

Credibility

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

Statements regarding the abuse

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

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

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

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

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

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

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

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

Delay in submitting a refugee claim

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

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

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

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

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

Conclusion on Credibility

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

Nexus

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

Potential Exclusion

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

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

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

Well-Founded Fear of Persecution and Risk of Harm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State Protection

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

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

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

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

Internal Flight Alternative

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

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

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

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

CONCLUSION

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

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

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

[3] Exhibit 1.

[4] Exhibit 5, p. 10.

[5] Exhibit 5, p. 10.

[6] Exhibit 5, p. 8.

[7] Exhibit 5, p. 5.

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

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

[10] Exhibit 4.

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

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

[13] Exhibit 3, NDP, Item 2.1.

[14] Exhibit 3, NDP, Item 5.19.

[15] Exhibit 3, NDP, Item 5.19.

[16] Exhibit 3, NDP, Item 5.19.

[17] Exhibit 3, NDP, Item 5.19.

[18] Exhibit 3, NDP, Item 5.19.

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

[20] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

[21] Exhibit 3, NDP, Item 5.9.

Categories
All Countries Iran

2020 RLLR 113

Citation: 2020 RLLR 113
Tribunal: Refugee Protection Division
Date of Decision: September 16, 2020
Panel: Liyusew Kidane
Counsel for the Claimant(s): Bahman Azimi
Country: Iran
RPD Number: TB9-31677
Associated RPD Number(s): TB9-31742
ATIP Number: A-2021-00945
ATIP Pages: 000188-000191

DECISION

[1]       MEMBER: This is a decision for [XXX], file number TB9-31677, and [XXX] file number TB9-31742. I have considered your testimony and the other evidence in this case and I am ready to render my decision orally.

[2]       The principal claimant, [XXX], and the minor claimant, [XXX], claims to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and 97 sub – Subsection 97(1) of the Immigration and Refugee Protection Act.

[3]       INTERPRETER: Sorry, can you keep the sentences short please so I can? I got this one but still.

[4]       MEMBER: I – I was wondering, is it possible for you to translate simultaneously so that I can read the decision for the record and the claimant will also receive the decision in writing. Do you know how?

[5]       INTERPRETER: It’s going to be a little hard. No. I can’t do that.

[6]       MEMBER: Okay, umm. Okay, I’ll read it in parts then.

[7]       INTERPRETER: Thank you, sir.

[8]       MEMBER: The principal claimant, [XXX], and the minor claimant, [XXX], claims to be citizens of Iran and are claiming refugee protection pursuant to Sections 96 and Subsection 97(1) of Immigration and Refugee Protection Act. The principal claimant was appointed as the designated representative of the minor claimant. In considering this matter, I have considered Chairperson’s Guideline on women refugee claimants and child refugee claimants.

[9]       INTERPRETER: I didn’t get that, sorry. Can you please speak a little louder?

[10]     MEMBER: Okay, umm. Counsel, this decision will be sent in writing. Would you ⁠– is it possible for you to translate to them when in your office when you receive it? Or, they…

[11]     COUNSEL: Yes. Is it the (inaudible)? As long—I mean at the end of the day I think they want to know whether the decision is positive, I think today.

[12]     MEMBER: It is positive.

[13]     COUNSEL: It’s positive?

[14]     MEMBER: Yes.

[15]     COUNSEL: Okay.

[16]     MEMBER: Okay.

[17]     CLAIMANT: Thank you. Thank you.

[18]     COUNSEL: . Okay, so I will read it to them in (inaudible) because of the mask and all these little logistics, it’s difficult to hear you (inaudible).

[19]     MEMBER: Yes. I appreciate that. I appreciate that, counsel.

[20]     CLAIMANT: Thank you so much.

[21]     MEMBER: Determination.

[22]     CLAIMANT: Thank you.

[23]     MEMBER:

Determination

[24]     I find you are both refugee Conventions for – Convention refugees for the following reasons:

[25]     I find that the claimants have established a serious possibility of persecution on the grounds of their membership to a particular social group, namely women facing gender-based violence due to their position to discrimination of women in Iran. Particularly, Iran’s dressing code. In light of this finding, the Panel has not assessed whether the claimants were victims of domestic abuse in Iran.

[26]     The allegations of the claims are found in the Basis of Claim form. In summary, the principal claimant allege that she fears harm in Iran at the hands of her husband. And you alleged you are your husb ⁠– you ⁠– you allege that your husband was abusive, and you fear this abuse will continue if you were to return to Iran. The minor claimant also fears abuse at the hands of her father.

[27]     The principal claimant testified that the claimants do oppose the Iran ⁠– Iran’s laws that compel women to wear hijab.

Identity

[28]     Your identities as citizens of Iran have been established on a balance of probabilities through your testimony and the certified true copy of your passport found in Exhibit 1.

Credibility

[29]     Overall, I found you, the principal claimant, to be a credible witness on a balance of probabilities. Your testimony was straightforward and spontaneous. There was no material inconsistency in your testimony. Also, I note that you did not embellish your testimony.

[30]     You have testified that women in Iran do not generally have a place. That means they don’t have equal status or treatment in society. It is defined woman has no right to divorce and are forced to marry. You testified that your marriage was arranged through your family and you really didn’t have a choice to refuse. You were pressured into marrying your husband. You also testified that the minor claimant was harassed and bullied in school due to her preference to cut her hair short, wear boy’s jacket and t-shirts. You testified that women are not given value, their freedom of speech is limited, and they don’t have freedom of choice.

[31]     In contrast, you testified that you and the minor claimant have no ⁠– have not been wearing hijabs since you came to Canada. You testified that you are more comfortable without hijab. I note that the claimants appear before the Panel without hijab. Therefore, I find that on balance of probabilities the claimants oppose the Iran’s dressing code that restricts women’s freedom of choice. I therefore find that you are credible and I acc ⁠– I accept your allegations as credible in that you have established your – your and the minor claimant’s subjective fear.

Objective Basis

[32]     I find that your subjective fear has an objective basis based on the objective evidence before me. In the National Documentation Package for Iran, which is attached to Exhibit 3, Item 2.1 indicates that the law provides that a woman who appears in public without appropriate attire, such as the cloth scarf veil over head and a long jacket, or a large full-length cloth covering legs cloth covering, may be sentenced to flogging and fined.

[33]     Item 5.4, in the NDP, states that there’s no legal definition of what constitutes appropriate hijab. Generally, girls as young as seven years old are required to wear proper hijab. This document further states the policing of women bodies is not confined to the State. Iran veiling laws have enabled thugs and vigilantes who feel they have the duty and the right to enforce Islamic Republic values to harass and assault women in public. As a result, on a daily basis, women and girls face random encounters with strangers who beat and pepper-­spray them, call them whores and make them pull their headscarves down to completely cover their hair.

[34]     The Panel therefore finds an objective and subjective basis to the claimants’ fear regarding the compulsory hijab on the balance of probability.

State Protection

[35]     State protection would not be reasonably forthcoming as authorities themselves are the agents of persecution.

Internal Flight Alternative

[36]     Given that the State is the agent of persecution, there is no internal flight alternative in the claimants’ circumstances.

CONCLUSION

[37]     Based on a totality of evidence, I find the claimants are Convention refugees. I therefore accept their claims.

[38]     Thank you and good luck.

———- REASONS CONCLUDED ———-

Categories
All Countries Kenya

2020 RLLR 107

Citation: 2020 RLLR 107
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2020
Panel: P Kissoon
Counsel for the Claimant(s): Leigh Salsberg
Country: Kenya
RPD Number: TB9-11078
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000155-000167

REASONS FOR DECISION

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

ALLEGATIONS

[2]       The allegations of this claim are found in the Basis of Claim form.[1] The claimant is alleging that, as a woman, she faces gender-related persecution by reason of her membership in a particular social group. In summary, the claimant alleges intimate partner violence from her son’s father, who abused her, threatened her life, and attempted to recruit her to join the Mungiki criminal sect. She alleges that there is no state protection for her, nor is there any place for her to live safely in Kenya due to the failures of the state to protect women facing domestic violence and because her son’s father has continued to try to find her in different locations.

Chairperson’s Guidelines

[3]       The panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution[2] and in particular, Part C Evidentiary Matters, and Part D Framework of Analysis, to assess credibility and analyse the internal flight alternative (IFA), within the claimant’s own social, cultural, and economic context:

  1. “In determining the reasonableness of a woman’s recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA” (Part C).
  1. “Considerations: Whether there would be undue hardship for the claimant both in reaching the location of the IFA and in establishing residence there” (Part D).

[4]       An application was allowed for procedural accommodations for the claimant as a vulnerable person, according to the Chairperson’s Guidelines on Procedures with respect to Vulnerable Persons appearing before the Board.[3] A [XXX] assessment was disclosed[4] with recommendations for accommodations from a qualified Canadian medical doctor specialising in [XXX]. Accordingly, procedural accommodations included: varying the order of questioning; using a soft and gentle tone of questioning; allotting adequate time to answer questions, repeating questions as necessary; taking frequent breaks as needed; limiting the number of questions about dates and timelines; and limiting the questions about the details of the domestic violence.

[5]       The [XXX] diagnosed the claimant with [XXX] and [XXX]. In addition to severe [XXX] of [XXX] and [XXX], the assessment also indicated symptoms of her disorders that might affect testimony including, “significant avoidance of thinking and talking about the past to the point of not having been able to disclose certain aspects of the trauma until now” and “difficulties with focus and memory”. The [XXX] also described the claimant as being “very disorganized in the way she described her past […] tangential and circumstantial, and sometimes vague in her answers […] and all these are seen in severe and chronic trauma.[5]” The panel considered the objectives of Guideline 8 first to recognize the particular difficulties of the claimant and factors that may impair her ability to present her case and second to ensure the ongoing sensitization of the panel to prevent the claimant from re­traumatization by the hearing process.

DETERMINATION

[6]       The claimant has established a serious possibility of persecution in Kenya on account of her membership in a particular social group. Therefore, the panel finds that she is a Convention Refugee pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA).

ANALYSIS

[7]       The panel has considered all the evidence relating to the allegations including the claimant’s testimony, personal and country documents, and counsel’s written representations.

Identity

[8]       On a balance of probabilities, the panel finds that the claimant has established her personal identity and Kenyan citizenship based on the certified true copy of her Kenyan passport.[6]

Nexus

[9]       There is a nexus between the claimant’s allegations and one of the five Convention grounds, specifically membership in a particular social group as a Kenyan woman who is at risk of gender-based violence. Therefore, this claim has been assessed under s 96 of the IRPA.

Credibility

[10]     The panel finds the claimant’s testimony and evidence to be credible and generally reliable in assessing her fear of persecution. The claimant was forthcoming and detailed in her responses. There were no relevant inconsistencies or contradictions between the testimony and other evidence. The central allegations of this claim pertain to the claimant’s relationship to her younger son’s father (FK). Therefore, the panel has focused its findings on the claimant’s former intimate-partner relationship and gender-based violence, as well as the agent of persecution’s membership in the criminal Mungiki sect and ongoing interest in locating her and her youngest son.

The claimant endured Intimate Partner Violence at the hands other child’s father

[11]     The claimant moved with her older son to Mombasa in 2010, where he attended secondary school and she earned income from selling fruit in the market. She began a relationship with a patron of her stall, FK, who was originally from Nairobi and who was the same ethnicity as her, Kikuyu. He had two children and a wife, and he told the claimant that he was divorced, though he did not prove this to her. Their relationship began with him visiting her stall, and then visiting her at home. He began to beat her during his visits. The claimant became pregnant for him in 2011 and the beatings became worse during her pregnancy. He visited almost daily and was often drunk. After her youngest son was born in [XXX][7], he continued to visit her and to beat her brutally. The panel asked whether her older son or neighbours had witnessed any of this abuse or its effects. She explained that neighbours had tried to intervene, but she did not stay in touch with any of them after she fled Mombasa in 2013, although she occasionally ran into them in Nairobi and they would tell her that FK was still looking for her and threatening to harm her and take his son. She also explained that she never indicated to her older son that she was being abused by FK because he had been in boarding school in Mombasa. He would not have witnessed the abuse, she was too ashamed to let him know, and if he did learn about the abuse he would have tried to confront FK, which would have been dangerous for him. For these reasons, she had no letters of support regarding the abuse. The panel asked her whether her older son knew why she was in Canada, and she said that he did. Her older son has also sent her original documents for the claim from his address in Nairobi.[8] The panel weighed the claimant’s explanations for the lack of personal documents, and found them to be reasonable given her particular circumstances, which include her avoidance of sharing details of her abuse.

[12]     The claimant mentioned in her BOC going to the hospital at least once during her stay in Mombasa due to a fall caused by FK, where she was treated with injections, and she also states that she had to go to the hospital various times because of his abuse. However, no contemporaneous hospital or medical records were produced from that time. The claimant did disclose hospital records from [XXX] from [XXX] and [XXX] 2019[9] and explained in her BOC that she attended appointments to investigate increasing pain in her leg from the abuse she experienced with FK.

[13]     The panel asked whether she ever reported his abuse to the police in Mombasa and she said that she reported FK to the elders before she became aware of his Mungiki membership; however, the abuse did not stop after the elders met with him.[10] The claimant did not disclose any letters from the elders in support of her claim; however, going to the elders is consistent with the Kenyan NDP, which says that in matters of domestic violence, people frequently use traditional dispute resolution mechanisms addressed by village elders as an alternative to official channels.[11]

[14]     The panel has analysed the absence of documents from Mombasa as follows. The panel notes that the claimant was able to provide documents from locations where she continues to have a network of support, which she can draw on to help her to substantiate her allegations of abuse, such as [XXX]. The abuse that she directly experienced was associated with Mombasa. She moved four or five times in Mombasa and environs, including neighbouring Kilifi County[12]; however, FK would locate her and harass her while she was vending, and he also threatened to kill her. Referring to her [XXX] assessment, the [XXX] described the claimant’s [XXX] and [XXX] in relation to her trauma, as well as memories of abuse that she considers “unmentionable”. As such, she literally might be avoiding having her support network risk their lives, as she sees it, to get documents in Mombasa since FK still resides in Mombasa as far as she is aware, and she testified that she does not know what FK might do to her family because she and her younger son are in hiding. Given the unspeakable abuse she experienced in Mombasa, and the shame she says she feels, the panel finds that her credibility regarding the abuse outweighs any negative inferences arising from this gap in the claimant’s documentary evidence. For the reasons that preceded, the panel finds that the claimant has established, on a balance of probabilities, a fear of persecution as a victim of domestic violence at the hands of FK.

Well-founded fear of persecution – Objective Basis

[15]     The panel finds that the claimant’s subjective fear of persecution has an objective basis. The socio-cultural acceptance of domestic violence by a large minority of the population has a serious impact on the female demographic, indicated by Kenyan authorities who reveal, “domestic violence as the leading cause of preventable, nonaccidental death for women during the year”.[13] The prevalence of violence against women is particularly notable in the Kenyan Demographic and Health Surveys Program (DHS) statistics that show, “the number of women who have experienced violence since the age of 15 has actually increased from 38.5% in 2008/9 to 44.8% in 2014, with husbands/partners the main perpetrators. [Further] 41.8% of women (aged 15 to 49) and about 36% of men felt that hitting or beating the wife was justified in certain domestic situations”.[14]

[16]     The panel finds, on a balance of probabilities, that the claimant has established a pattern of violence that was not remedied by community intervention, and that the violence amounts to a violation of a fundamental human right. The panel is satisfied that there is an objective basis to the claimant’s subjective fear, and she has established a well-founded fear of persecution based on her gender.

STATE PROTECTION

[17]     The claimant described her attempts to find relief from the abuse from the elders; however, the matter was taken to the police only once. She was in hiding at her mother’s house in Nairobi after fleeing Mombasa and, a few months later, her mother found a threatening note at their door from FK. She and her mother went to the police who referred her to the Area Chief’s office. The Area Chief wrote a letter dated [XXX] 2019 summarizing that FK was looking for the claimant and his son, and stating that the claimant should look for safety while an investigation is conducted in the matter. The panel asked her about the investigation and police response, and she said they sent patrols but did not follow up to let the family know the status of their investigation. She said that she does not know if they wrote a report following her complaint, but when they read the note they referred her to the Chief’s office. Police referral of the matter is consistent within the Kenyan NDP that indicates that mediation and conciliation in family matters is widely promoted by police who avoid domestic issues.

[18]     The objective evidence in the NDP indicates that Kenya is making progress in recognizing the rights of women, with various policy and administrative reforms. However, at the level of implementation and enforcement, the NDP describes a high level of tolerance of violence against women that undermines the effectiveness of state protection, including difficulties to investigate and prosecute gender-based violence.[15] Further, domestic violence is a pervasive problem and, “Except in cases of death, police officers generally refrained from investigating domestic violence, which they considered a private family matter”.[16] According to the NDP, “police officers often do not enforce the illegality of rape”[17] and the enforcement of laws pertaining to rape and domestic violence is limited.[18]

[19]     The panel finds that there is clear and convincing evidence to rebut the presumption of state protection, on a balance of probabilities, and that adequate state protection would not be reasonably forthcoming in this particular case.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[20]     In determining the viability of an IFA, a two-pronged test must be considered. First, the panel must be satisfied, on a balance of probabilities, that there is no serious possibility of persecution in the suggested IFA. Secondly, conditions in the part of the country proposed as an IFA must be such that it would not be unreasonable to seek refuge there in all the circumstances, including those particular to the claimant. The second prong of the IFA test is an objective one: is it objectively reasonable to expect the claimant to seek safety in a different part of the country? Generally, the documentary evidence in the NDP discusses conditions for women in Nairobi; however, the panel infers that the challenges outlined also relate to relocating to other places in Kenya. Eldoret was a possible IFA put to the claimant, and it was an IFA that she had attempted in the past, at the home of her uncle. However, even if FK could not locate her in the IFA, the panel finds that it would be unreasonable for the following reasons.

  1. Ongoing Medical Treatment is Beyond the Claimant’s Reach in the IFA

[21]     The claimant has submitted physical and mental health records that have established that she requires ongoing medical treatment. In the context of the severity of her trauma, the [XXX] noted that the claimant will “not be able to make full use of any treatment modalities until the threat of her trauma recurring is permanently removed”.[19] She has undertaken counseling at the Riverdale Immigrant Women’s Centre as well as the Canadian Centre for Victims of Torture, both of which have provided letters[20] regarding her [XXX] and [XXX] techniques.

[22]     Further to her frail [XXX] condition, the claimant has undergone surgery in Canada to remove a large growth from her [XXX], she has persistent left hip discomfort caused by [XXX] and [XXX] a [XXX] of the shoulder, and an [XXX] tear.[21] Consequently, she has severe pain in her [XXX] and restricted [XXX] of her [XXX]. She is undergoing [XXX], and requires ongoing diagnostic testing for other issues.

[23]     While the objective documentation suggests that the Ministry of Public Health and Sanitation provides free primary health care, with a focus on preventative care for all, “public hospitals lack doctors, nurses, drugs, and other medical necessities, and a recently introduced medical insurance program is not accessible to low income earners or the unemployed.”[22]Further, considering the objective evidence regarding mental health services in Kenya, item 6.2 of the NDP states that the topic of mental health is taboo in Kenya and not seen as a medical or social problem that can be treated.[23] Item 5.5 indicates that mental health “services are ‘sparse’ and are not covered by general health insurance.”[24] While this may be a generalized problem amongst the poor throughout the country, the IFA requires the claimant to live away from her social and family network in [XXX] while caring for her young son, which is an additional hardship as an older, single parent, without a stable source of income, struggling to manage her own [XXX] health. It is the claimant’s particular circumstances that suggest that an IFA would be unreasonable for her and detrimental to her well-being, particularly when considering her employment and housing options.

  1. Employment is precarious, unstable, and difficult for the claimant to obtain in the IFA

[24]     The objective evidence in the NDP, Item 5.5 indicates that women face discrimination in accessing credit and they are concentrated in the informal sector, which is characterized by low wages, menial jobs that are available erratically, and a reliance on referrals through one’s social or informal networks, which exposes women to a high risk of abuse and violence.

[25]     Other than her elderly uncle, the claimant’s network is non-existent in Eldoret, placing her in a vulnerable position as a woman who is new to the city, and exposed to gender-based discrimination, ethnic discrimination, and sexual violence.[25] Further, Item 5.5 states that widows may engage in sex-work to make a living in Nairobi[26] and, as a lone-parent undertaking forced re-location to an IFA, the claimant is similarly situated to widows in her vulnerability to life­ threatening or degrading work to support her son and herself because, like the widow, she also does not have a husband.

[26]     The claimant has completed seven years of primary school only. With this level of education, her previous work history consisted of street vending, domestic work, and agricultural labour, each of which provided a meagre unstable income. In Eldoret, the most accessible income-generating activity for the claimant, given the limitations of her physical condition and age, is street vending. The objective information from the NDP, Item 2.1, suggests that street vending places women at risk of daily harassment and abuse. According to a study of street vendors in Nairobi, “harassment was the main mode of interaction between street vendors and authorities,” demands for bribes by police amounted to three to eight percent of a vendor’s income, and sexual abuse were common.[27] Although this information pertains to the country’s capital, it is not unreasonable to think: that the harassment, corruption, and abuse would extend to vending conditions for women in other cities and towns as the NDP refers to “widespread impunity”[28] for gender-based violence.

[27]     Considering the severity of her [XXX], a return to the conditions that precipitated her abusive relationship might worsen her condition. The claimant’s history of violence at the hands of her child’s father began while she was a street vendor, and continued even though she tried to move within Mombasa so he could not find her. The [XXX] assessment referred to her feeling “dehumanized, helpless, powerless, and terrified for her life”[29] in Kenya and in Saudi Arabia, and “extreme distrust of others”. By contrast, the very act of street vending requires one to engage with strangers and, according to the NDP, to cope on a daily basis with intimidation and abuse, which is completely incompatible with her [XXX] health. On a balance of probabilities, the panel finds that the claimant would face destitution in the IFA resulting from irregular employment and employment conditions that may be harmful to her health.

  1.  Difficulty accessing appropriate housing

[28]     Based on her irregular and limited income, afforded by her education, age, and status as a single-parent, the claimant would also have difficulty finding appropriate housing for her and her son. With respect to the objective documentary evidence, NDP Item 5.5 states that more than half of Nairobi’s residents live in “informal settlements”, where women represent 46 percent of the population of slum-dwellers, and women who arrive to the city can generally only afford informal housing.[30] The claimant alleged that she would not be able to rely on her elderly uncle to support her again; the claimant does not own property, she does not stand to inherit, and her income is likely to be precarious, so she would likely fall into the category of the urban poor if she were to re-locate internally.  The objective evidence suggests that women residing in informal settlements as sole-providers, “live hand to mouth, putting together the money and food needed for the family from a range of sources, including money given by churches, cooking and selling food, trading in petty items, begging or scavenging, carrying loads at construction sites or engaging in sex work”.[31]

[29]     The UK Home Office notes, “In general, where the threat is from non-state agents, internal relocation to another area of Kenya is likely to be reasonable, depending on the nature and origin of the threat, and the individual circumstances of the person. Women and girls face discrimination and restrictions in their social and economic rights, and may find relocation more difficult than men.”[32] Moreover, “women with no support network and without any accompanying family members may find it unreasonable to relocate”.[33] On a balance of probabilities, the claimant would face a high risk of housing instability and homelessness.

[30]     The documented challenges of employment, and housing upon relocating, and the claimant’s [XXX] symptoms of[XXX] and difficulty trusting others, in combination with her age, status as a lone parent, lack of social or kinship network, level of education, and limited work history, make it objectively unreasonable and unduly harsh to require the claimant to start over in a new part of Kenya, where she would continue to live in intense fear.

[31]     Although the courts have set a high bar for finding a proposed IFA to be unreasonable, the panel finds that this bar has been met in the claimant’s specific situation. This analysis of the appropriateness of the IFA is linked to the Gender Guidelines and applied to the particular case of this Kenyan woman to consider how she would be affected in her own circumstances. The claimant would face significant hardship in finding employment and housing. Without employment, the claimant would face poverty. The objective evidence is clear that people in poverty face significant issues when accessing healthcare, and the claimant has demonstrated her need for both medical and psychological treatment. As the test for an IFA fails on the second prong, the panel finds there is no viable IFA for the claimant anywhere in Kenya.

[32]     Considering that the claimant has been found to be credible, and that there is no IFA for her, the panel finds that she has established a well-founded fear of persecution under section 96 of the IRPA.

CONCLUSION

[33]     The panel has considered all of the evidence and has determined that there is a serious possibility that the claimant would be persecuted in her country of nationality due to her Membership in a Particular Social Group, women.

[34]     The panel finds that the claimant is a Convention refugee, pursuant to Section 96 of the IRPA; therefore, the claim for protection is accepted.

[1] Exhibit 2.

[2] Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, September 1996 (the Gender Guidelines).

[3] Chairperson’s Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, amended December 2012 (the Vulnerable Persons Guideline).

[4] Exhibit 8.

[5] Ibid.

[6] Exhibit 1.

[7] Exhibit 6, p 11.

[8] Ibid., p 1.

[9] Exhibit 6, pp 18-24.

[10] Exhibit 10.

[11] Exhibit 3, KEN – 31 January 2020 – 2.1, p 33.

[12] Exhibit 1.

[13] Exhibit 3, KEN – 31 January 2020 – 2.1, p 34.

[14] Ibid., Item – 5.3 p 18.

[15] Ibid.

[16] Ibid., Item – 2.1, p 34.

[17] Ibid.

[18] Ibid.

[19] Exhibit 8.

[20] Exhibit 6, pp 41-42.

[21] Ibid., pp 25-33.

[22] Exhibit 3, KEN – 31 January 2020 – 5.5, p 7.

[23] Ibid., Item – 6.2, p 5.

[24] Ibid., Item – 5.5, p 8.

[25] Ibid., p 5.

[26] Ibid. p 6.

[27] Ibid., Item – 2.1, p 48.

[28] Ibid., Item – 5.5, p7.

[29] Exhibit 8.

[30] Ken — 31 January 2020 — 5.5, p 3.

[31] Ibid., p 5.

[32] Ibid., Item – 1.7, p 13.

[33] Ibid., Item 1.4, p 7.

Categories
All Countries Uganda

2020 RLLR 104

Citation: 2020 RLLR 104
Tribunal: Refugee Protection Division
Date of Decision: February 24, 2020
Panel: M. Saleem Akhtar
Counsel for the Claimant(s): Jonathan E Fedder
Country: Uganda
RPD Number: TB9-04769
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000140-000147

REASONS FOR DECISION

INTRODUCTION

[1]       The principal claimant, [XXX], and the associate minor claimant, [XXX] (collectively called claimants) are citizens of Uganda and seek refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“)[1]. The principal claimant who is the biological mother of the minor claimant has been appointed as the designated representative for him.

ALLEGATIONS

[2]       The allegations of this claim are found in the claimants’ Basis of Claim (BOC) Forms.[2] In short, the principal claimant alleges that she was physically, emotionally and psychologically abused and threatened in Uganda and fears persecution to her as well as to her son, by her former common-law partner, [XXX] (AB) and his family, should they return to Uganda. AB is the biological father of the minor claimant in this matter.

[3]       The principal claimant further alleges and believes that there is no adequate state protection available to them in Uganda, nor any place for them to live in safety in Uganda due to AB’s official position serving as a member of the Special Forces Command providing security to the President of Uganda.[3]

DETERMINATION

[4]       I find [XXX] and [XXX], to be Convention refugees, within the meaning of section 96 of the Act. The reasons of my decision are as follows:

FACTS AND ANALYSIS

[5]       In arriving at this decision, I considered the principal claimant’s oral testimony, documentary evidence[4], the counsel’s oral submissions, and the relevant portions of the documents contained in the National Documentation Package (NDP) pertaining to Uganda[5].

[6]       In addition, I considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and Guidelines on Child Refugee Claimants.

The Claimants’ Identity and Country of Reference Established

[7]       I find, on a balance of probabilities, that the principal claimant has established her personal identity and her country of reference (Uganda) as well as that of the associate minor claimant. I have relied on certified copies of their Ugandan passports[6], and the oral sworn testimony of the principal claimant.

Nexus Established

[8]       I find there is a nexus between what the principal claimant fears and one of the Convention grounds, specifically, as a woman who has experienced domestic abuse and persecution, she is a member of a particular social group because of her gender. I also find there is a link: between what the minor claimant fears as associated risk and one of the Convention grounds, specifically, by virtue of being a minor dependant of the principal claimant who is his biological mother. Therefore, these claims have been assessed under section 96 of the Act.

The Principal Claimant was Credible

[9]       Generally, a claimant’s evidence given under oath is presumed to be truthful unless there are valid reasons to doubt its veracity. The determination regarding whether or not evidence is credible is made on a balance of probabilities.

[10]     In this case, I found the principal claimant’s testimony made on her personal behalf as well as on that of the associate minor claimant mostly credible about the threats and persecution they suffered at the hands of AB and his family. Over all, the principal claimant’s testimony was consistent with the BOC, and corroborated by the supporting documents. She testified in a straightforward manner about their fears without embellishment, and there were no inconsistencies that went to negatively impact the core of the claim. Her answers were generally spontaneous. She provided details and expanded the conversation as it related to her relationship with AB and the abuse she and her son sustained at the hands of AB and his family.

[11]     The principal claimant was able to provide details about how her relationship started and progressed over-time, how she initially liked and enjoyed her relationship with AB including activities she and AB did together in Uganda. However, the relationship between the principal claimant and AB’s family has always been one of mistrust, having divergent views about how she and her minor son should be treated in terms of Mukyankole Muhima clan traditions. She belongs to Muganda tribe. She testified she did not know that the Muhima people, particularly the elite, do not mix with other Ugandans. This is more important and truer when it comes to marriages, as they generally do not marry outside the tribe.

The Claimants’ fear of persecution

[12]     In her BOC as well as in her sworn oral testimony, the principal claimant testified that she and AB met in 2010 while both of them were studying at the [XXX] University in Uganda. After learning that she was pregnant, she proposed to him for formal marriage, which he, initially, resisted, however, she convinced him to get married. AB did not invite his family to this marriage because the principal claimant was not from his tribe. The principal claimant testified that, at the time when she met him and became pregnant, she did not know that AB belonged to Muhima tribe and that he was a member of the Special Forces Command, serving the President of Uganda. After the birth of their son, both the principal claimant and AB started living together. Despite that, AB never formally introduced her to his family, as his wife, because he was afraid that his family would not accept her due to her belonging to a different tribe.

[13]     The principal claimant testified that when AB’s family learned about the relationship between her and AB, they expressed their shock. People of Muhima tribe are particular about protecting their bloodline, and do not approve of a Muhimi man producing children with a non­ Muhimi woman. AB started distancing himself from the claimants. In [XXX] 2014, the claimant learned that AB had married a Muhimi woman. When she confronted him, he became violent. He physically assaulted her and hit her with a belt and pushed her into a cupboard, causing back injury. She reported the abuse to the Nalya Police Station. They did not help her. They advised her to go back home and resolve the matter within the family. However, they promised to call him and speak to him, which she believed, they never did.

[14]     The principal claimant testified that, in 2015, AB’s attitude and behaviour towards her and their son became markedly negative and abusive. He demanded that their son should not carry surname “BIRARO” because AB no longer wanted to recognize him as his son due to his ‘impure Muhima heritage’. The principal claimant objected to that, which resulted in AB’s more physical and emotional abuse towards the claimants. He would beat up, punch and kick her frequently. On one of such occasions, when she sustained more visible injuries, she went back to the Nalya Police Station, hoping that after seeing physical injuries resulting from the physical abuse by AB, police officials would help her and provide protection. But, their response was – go back and resolve the matter within the family. For the next more than two years, she sustained physical and emotional abuse of various degrees. She again approached police in May 2017, and sought protection. But, this time, too, she did not get any assistance from police. In fact, one of the police officials mocked saying “Can’t you see that you are Muganda and he is Muhima.”

[15]     In early July 2018, AB told the claimant to leave his home as early as possible. Later, on July 21, 2018, he came home agitated and asked why she was still there at his home. He also accused her of damaging the property. He assaulted, punched and kicked her, causing damage to her spleen. In August 2018, she packed up her personal stuff and moved to an Airbnb. A few days later, when she went to pickup her son from the daycare, she was told that one of AB’s friend, whom the claimant also knew, had taken the child on AB’s command. The claimant was upset at this ‘abduction’. However, she successfully managed to retrieve the son against the wishes of AB.

[16]     After realizing that her son could be abducted and harmed and that police would not protect the claimants against powerful AB, the claimant, along with her son, decided to leave Uganda for Canada, for safety reasons. Upon arrival in Canada, the principal claimant filed a refugee protection claim for herself as well as for the minor claimant.

[17]     I noted the claimant’s failure to seek asylum in 2017 and 2018 when she visited the United States and Germany respectively. This issue was put to the claimant who testified that she did not seek asylum because, on both occasions, she had come to attend work-related conferences and that her son was not with her on both occasions because she could not get visa for her son. She testified she thought and wanted to do file refugee protection claim in the U.S. or in Germany, but, she could not imagine leaving her son in Uganda at the mercy of AB and his family who were already bent upon hurting him and eliminating him.

[18]     I find the claimant has adequately explained failure to claim asylum in the United States of America. I find her explanation reasonable within the given circumstances, and, therefore, will not draw any negative credibility inference regarding subjective fear.

Supporting Documents

[19]     In support of her claim and that of the minor claimant, the principal claimant produced several documents, including identity documents, police reports, medical reports from Uganda and psychological assessment and medical reports from Canada, affidavits from friends in Uganda, letters of support from Ugandan and Canadian friends including letters from the minor claimant’s teachers in Uganda, a letter of support from the Canadian  Centre for Victims of Torture (CCVT), some relevant emails and text messages, some relevant family photos, and country conditions[7]. These documents mostly corroborate the claimant’s narrative. On a balance of probabilities, I find the claimant’s testimony as well as the documents submitted to be credible.

Subjective Fear

[20]     The principal claimant gave details as to how badly she and the minor claimant were treated, emotionally and psychologically, by AB. She testified they were living in Uganda under constant fear of harassment, persecution and death threats. Her son had to stop attending school due to constant fear of being abducted and harmed, may even be killed. She further testified she was not helped by the police, despite her reaching out to them multiple times for protection.

[21]     I find the principal claimant’s testimony on her personal behalf as well as on behalf of the associate minor claimant, credible in relation to the core of the claim. I find, on a balance of probabilities, that the abuse and death threats occurred, as alleged. I also find there is more than a mere possibility of persecution against the claimants at the hands of AB and his family, based on their clan influence as well as AB’s high position in the government whereby they could threaten and harm the claimants with no fear of punishment by the State. Hence, I find the claimants have established their subjective fear.

Objective Basis Established

[22]     The NDP sources for Uganda note that domestic violence is widespread in Uganda, and offenders are rarely prosecuted[8]. The same sources note the existence of hatred and violence based on clan differences, particularly, in matters of marriages.

[23]     The NDP sources add that Ugandan society generally does not consider domestic abuse a crime, and police officers often do not consider it a serious offence, rather, they treat it as a family matter and generally advise the victim to resolve the matter within the family. This is all the more so when the agent of persecution is influential, resourceful and connected with the government, as is the case in this claim. These sources also indicate that the police do not, generally, interfere in clan mattes. They consider that such matters should be resolved by clan leaders, based on their traditions.

[24]     I find the claimants have established objective basis for their claims. Hence, I find the claimants has established a well-founded fear of persecution against them in Uganda.

Adequate State Protection Not Available

[25]     I find that the principal claimant has rebutted the presumption of state protection with clear and convincing evidence. The NDP for Uganda states that the police often treat domestic abuse as a family matter, and do not consider it a serious offence[9]. Similarly, the police leave the clan differences to be resolved by clan chiefs. Despite such an attitude of the police, the claimant asked for police protection, at least three times, but she did not receive any protection.

[26]     I find, on a balance of probabilities, that the state is unable or unwilling to protect the claimants, particularly considering that the principal agent of persecution (AB) is a high official in the government, connected with the Special Forces Command who provide security to the President of Uganda. As such, I find that, on a balance of probabilities, adequate state protection would not be available to the claimants.

No Viable Internal Flight Alternative (IFA) Available

[27]     The available country conditions’ evidence as per the NDP for Uganda and the claimant’s sworn testimony are consistent about the prevalence of corruption among police services in Uganda. This would make AB who is influential and well-connected with the government to corrupt the police forces, and thus, on a balance of probabilities, diminish the viability of any IFA for the claimants. As such, I find the claimants have established that there is more than a mere possibility of persecution against them, and that, on a balance of probabilities, there would not be a viable IFA for the claimants anywhere in Uganda.

CONCLUSION

[28]     I find there is a serious possibility that the claimants would face persecution, should they return to Uganda.

[29]     Having considered the totality of the evidence, I find that the principal claimant, [XXX] and the associate minor claimant, [XXX], are Convention refugees, pursuant to section 96 of the Immigration and Refugee Protection Act.

[30]     Therefore, I accept these claims.

[1] Immigration and Refugee protection Act, S.C. 2001, c.27, as amended, and package of information from the referring CIC/CBSA (pages un-numbered).

[2] Exhibit 2, Basis of Claim (BOC).

[3] Exhibits 2, 5 to 7.

[4] Ibid.

[5] Exhibit 3, NDP for Uganda, June 28 29, 2019.

[6] Exhibit 1, Package of information from the referring CIC/CBSA (pages un-numbered).

[7] Exhibits 1, 2, 5 to 7.

[8] Exhibit 3, NDP for Uganda, June 28, 2019, items 2 and 5.

[9] Ibid.

Categories
All Countries Nigeria

2020 RLLR 91

Citation: 2020 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2020
Panel: Haig Basmajian
Counsel for the Claimant(s): Otto Ibii
Country: Nigeria
RPD Number: MB8-11891
Associated RPD Number(s): MB8-11950, MB8-11951
ATIP Number: A-2021-00945
ATIP Pages: 000020-000026

REASONS FOR DECISION

INTRODUCTION

[1]       [XXX], the principal claimant, as well as her two minor children [XXX] and [XXX] are citizens of Nigeria. They are seeking refugee status pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). The principal claimant is the designated representative of her two minor children.

DETERMINATION

[2]       The Panel finds that the claimants are “Convention Refugees” under subsection 96 of the IRPA for the reasons indicated below.

ANALYSIS

Identity

[3]       The identity and nationality of the claimants have been established to the satisfaction of the Panel by taking into account the photocopy of their Nigerian passports contained in their respective files.[1]

ALLEGATIONS

[4]       The principal claimant’s Basis of Claim form (BOC), particularly her narrative and amendments, describes the details of her fear to return to Nigeria due to the violence she could face at the hands of her husband and his family, in addition to their insistence that their daughter, the claimant [XXX] be forced to a Female Genital Mutilation (FGM) performed on her. Given some of the content of this claim, which includes sensitive matters such as domestic abuse, the Panel took into consideration the Chairperson’s Guideline 4 of the Refugee Protection Division: Women Refugee Claimants Fearing Gender-Related Persecution.[2]

[5]       The principal claimant, accompanied by her counsel, testified via videoconference during the hearing. Given some significant additions and modifications to the narrative, notably that she was the victim of domestic abuse in Nigeria the claimant was asked to explain. The claimant answered that she had provided the modifications and new evidence to her former counsel who did not file these documents to the Refugee Protection Division (RPD).

[6]       In addition, she has recently had considerable personal issues such as a car accident and the recent surgery and hospitalization of her son following a serious cycling accident resulting in a ruptured pancreas, he was hospitalized on [XXX] 2020, and released a few days before the hearing on [XXX] 2020. Given that several documents were not submitted to corroborate these issues as well as the fact that she had just begun the preliminary process to divorce from her agent of persecution, the panel allowed the claimant the opportunity to submit these documents after the hearing. As such, several documents were submitted as evidence and the file was under reserve as of [XXX] 2020.

[7]       This additional evidence provided plausible explanations to explain some of the inconsistencies which were outlined during the hearing.

[8]       Given some of the context of the claim, including the evidence submitted before the hearing as well as Exhibits C-102 to C-106, submitted post-hearing, notably attesting the serious medical issues encountered by the claimants as well as the principles of Guideline 4, despite some contradictions and details regarding some aspects of the claims, the Panel concludes that the claimant’s fears appear to be genuine, on a balance of probabilities, as such the Panel will extend the benefit of the doubt and conclude that it is possible that she has been subject to years of violent domestic abuse as described during her testimony, in addition that her daughter could be subject to a forced FGM procedure.

[9]       Sadly, as the Panel can notice throughout the National Documentation Package (NDP) regarding Nigeria, staggering levels of violence towards women are unfortunately a frequent occurrence in that country. Notably page 30 of tab 2.1 of the NDP shows that “The law criminalizes rape, but it remained widespread. In March, UNICEF released a report noting that about one in four girls and one in ten boys were victims of sexual violence prior to their 18th birthday.”[3]

[10] Furthermore, page 34 from tab 1.4 of the NDP states that “Rape is common and widespread; societal stigma reduces the likelihood of victims reporting it or of perpetrators being prosecuted or punished.”[4]

[11]     The Panel also took into consideration some of the other elements submitted as evidence. Notably, at pages 6 to 34 from the objective country evidence submitted by the claimants in Exhibits C-3 to C-12 regarding the ongoing practise of FGM, which demonstrates that despite some efforts, it is still unfortunately widespread across Nigeria.

State Protection

[12]     Given, the above findings, the Panel must examine state protection. The leading jurisprudence, notably in Ward Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689, teaches us that States are presumed to be capable of protecting their citizens except in situations of a complete breakdown. In addition, the presumption that a state is capable of protecting its citizens underscores the principal that international protection comes into play only when a refugee claimant has no other recourse available. To rebut the presumption of state protection claimants must provide clear and convincing evidence of the State’s inability to protect its citizens.

[13]     In the present case, the claimant tried to obtain State protection. In addition, the claimant fears the repercussions from corrupt police.

[14]     In such cases, the panel is often guided by findings contained in objective evidence in order to ascertain the plausibility of the absence of state protection.

[15]     The claimant did submit some objective evidence in Exhibits C-30 and C-31 detailing the current state of widespread violence and corruption. The Panel also found similar findings in the NDP, particularly related to the state protection apparatus, notably at exhibits 2.1 and 1.4, respectively:

There were several reports that the government or its agents committed arbitrary, unlawful, or extrajudicial killings. The national police, army, and other security services sometimes used lethal and excessive force to disperse protesters and apprehend criminals and suspects.”[5]

Authorities did not always hold police, military, or other security force personnel accountable for the use of excessive or deadly force or for the deaths of persons in custody.”[6]

Police remained susceptible to corruption, committed human rights violations, and operated with widespread impunity in the apprehension, illegal detention, and torture of suspects.”

According to US DoS, the judiciary in Nigeria was affected by understaffing, underfunding, inefficiency, political interference, bribery, lacking equipment and training. As a result, the judiciary could not function adequately. Freedom House drew similar conclusions in its report for 2016.[7]

The Nigerian Police force has been criticized for corruption and human rights abuses by researchers and organizations over the years. In a recent study, the relationship between the police and the public in Nigeria was called perhaps the most troublesome in sub-Saharan Africa. Another source notes that the Nigerian Police Force is widely perceived by the public as the most corrupt violent institution in Nigeria.

In 2010 Human Rights Watch (HRW) concluded that the police was not only extorting money of ordinary civilians, but also that criminal suspects with money could simply bribe the police to find their own way out. HRW also reported that at least 100 000 police officers were hired as personal guards by the wealthy, at the expense of the majority.[8]

[16]     By considering the evidence in its entirety, the Panel finds that on a balance of probabilities, an individual with the profile of the claimant and the specific circumstances of this case has rebutted the presumption of state protection.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[17]     Several cities were suggested. However, by considering the profile of the principal claimant, who was abused by her husband for several years, this abuse was unfortunately not limited to her but to her son as well. In addition, her daughter fears to be forced to undergo an FGM and by taking into account the conclusion regarding state protection, finding a safe IFA is not a viable option per the Panel. Given the family link with the agent of persecution and the claimants it would be very possible that he can retrieve them and continue with his violent ways towards them. Furthermore, by considering some of the objective evidence from the NDP on page 16, from tab 1.4 as well as page 37 from tab 2.1, we see that despite its vast size and population, it is not simple or in many cases feasible to relocate, of course, depending on an individual’s profile:

“Nigeria is a large and complex country, with much internal variation, but the main divide that is brought up by Nigerians and foreign commentators alike, is the divide between the country’s south and north. This divide is based on historical, environmental, economic, cultural, linguistic, religious and political differences between these two parts.”[9]

“The country’s ethnically diverse population consisted of more than 250 groups speaking 395 different languages. Many were concentrated geographically. Three major groups– the Hausa, Igbo, and Yoruba– together constituted approximately one half the population. Members of all ethnic groups practised ethnic discrimination, particularly in the private sector hiring patterns and the segregation of urban neighbourhoods. A long history of tension existed among some ethnic groups.”[10]

[18]     After considering the evidence in its entirety, the Panel finds that on a balance of probabilities, an individual with the profile of the claimant and the specific circumstances of this case could not find a viable IFA in Nigeria.

CONCLUSION

[19]     For all these reasons, the Panel concludes that the claimants [XXX] and [XXX] are “Convention Refugees” and therefore accepts their refugee claims.

[1] Document 1 — Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Copy of passports.

[2] Chairperson’s Guideline 4 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996.

[3] Document 3 — National Documentation Package, Nigeria, 31 July 2020, tab 2.1: Nigeria. Country Reports on Human Rights Practices for 2019, United States, Department of State, 11 March 2020.

[4] Document 3 — NDP, Nigeria, tab 1.4: EASO Country of Origin Information Report: Nigeria, Country Focus, European Union, European Asylum Support Office, June 2017.

[5] Supra, note 3.

[6] Supra, note 4.

[7] Ibid, page 29.

[8] Ibid, page 30.

[9] Supra, note 4.

[10] Supra, note 3.

Categories
All Countries Kenya

2020 RLLR 82

Citation: 2020 RLLR 82
Tribunal: Refugee Protection Division
Date of Decision: November 17, 2020
Panel: Ekaterina Perchenok
Counsel for the Claimant(s): Joshua Moegi Makori
Country: Kenya
RPD Number: TC0-03000
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000138-000143

DECISION

[1]       MEMBER:                Okay so we’re back on the record now. I’m sorry to have kept everybody waiting for me but counsel I don’t need to hear questions from you if that’s okay.

[2]       COUNSEL:               That’s okay.

[3]       MEMBER:                I am ready to make a decision, okay?

[4]       CLAIMANT:            Okay.

[5]       MEMBER:                This is the decision for [XXX], File number TC0-03000. I’ve considered your testimony and the other evidence in your case and I’m ready to render a decision orally.

[6]       You claim to be a citizen of Kenya; you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection act.  In coming to a decision in your claim I have taken into consideration the chair person’s Guideline 4 for women refugee claimants fearing gender related persecution in assessing the harm for feared by the claimant.

DETERMINATION:

[7]       For the reasons that follow I find that you are a Convention refugee on the grounds of membership in a particular social group as a young woman facing gender based violence.

ALLEGATIONS:

[8]       Your allegations are found in your Basis of Claim Form at Exhibit 2.  To summarize you allege that you face persecution at the hands of your father’s family and your Kalenjin community due to your gender and age and specifically that you face the prospect of female genital mutilation and forced marriage against your wishes.

IDENTITY:

[9]       I find that your identity has been established on a balance of probabilities by your testimony and the certified copy of your Kenyan passport at Exhibit 1.

NEXUS:

[10]     I find there is a clear nexus between your fear and the convention ground of membership in a particular social group as a young woman facing gender based violence from your family and community. Therefore I have considered your claim under Section 96.

CREDIBILITY:

[11]     When a claimant swears that certain facts are true, this creates a presumption that they are truthful unless there is reason to believe otherwise.  Overall I find you to be a credible witness and I therefore accept your testimony and the statements you have made in your Basis of Claim.

[12]     You testified in a straightforward and detailed manner. I find that there are no serious reasons to reject your testimony on the basis of credibility.  During the hearing you were responsive to questions that were asked and you did not appear to embellish your evidence.

[13]     You testified to be [XXX] years old.  Shortly after [XXX] and before your [XXX] birthday, you testified that you were summoned to a meeting at a community eiders house in [XXX] 2018 where you were informed that [XXX](ph) was selected to be as a husband for you and was ready to pay a Dowry for you.

[14]     You knew [XXX] as an older rich white man from the community, sorry older rich man, I apologize.  You were told of your upcoming circumcision in preparation for the wedding. You testified that you became upset at this and tried to educate those at the meeting about the negative effects of circumcision.

[15]     You testified about the dismissive reaction of your opposition, to your opposition and how your mother remained quiet at that meeting.  You testified that things between yourself and your father were very tense for the next several months but that your mother told you about her true feelings on the issue, that she herself was circumcised and did not want you to go through that.

[16]     You testified that after your cousin’s funeral in [XXX] you were beaten by your father and uncles because you would not agree to the cultural rituals of FGM.  You testified that you ran away from your cousin’s house and went to the police but that they were no help.

[17]     You testified that you were told by the police to turn to your community eiders for support. You testified about staying with various friends in Nakuru Nairobi and Mombasa and about being located by strange men.

[18]     When you were in Nakuru a man came to your house with a warning for you about “going against your community”.  When you were in Nairobi you believed you were being followed and got a phone call where in the caller threatened to kill you.

[19]     When you were in hiding in Mombasa you were attacked by two men who attempted to kidnap you and “take you home”.  You did not know how they found you but believed all of these incidents were connected to your rejection of the marriage and the FGM.

[20]     All throughout you testified you were in contact with your mother, who was trying to help you.  At her suggestion you applied for a passport and with her help you applied for a visa to Canada and fled Kenya.

[21]     Your allegations were internally coherent and consistent with the narrative and the affidavits you provided from [XXX] (ph), [XXX] (ph) I apologize if I mispronounced that, and [XXX](ph). Your claim is plausibly based on the documentary evidence. I discern not contradictions or omissions when comparing your testimony to the information on file.

[22]     You were able to testify credibly about the allegations and you provided corroboration to those allegations.  I find you established your allegations on a balance of probabilities, therefore I find you’ve established that you face mistreatment at the hands of your father, his family and your tribal community based on your circumstances of being a young female who refuses to undergo FGM and being forced into marriage on a balance of probabilities.

OBJECTIVE BASIS:

[23]     I find that your fear of persecution has an objective basis.  In that I found you to be credible and your claim is supported by the country condition documentation.  The national documentation package for Kenya at Section 5 speaks extensively of the difficulties faced by women in Kenya.

[24]     According to the documentary evidence forced marriage and FGM continue to occur in Kenya. Though it does appear that the practises are starting to fall out of favor, FGM and forced marriage reportedly occur in higher frequencies in rural areas as compared to urban areas. You testified that your family comes from such a rural area where your father tends to cattle.

[25]     In Item 5.3 of the NDP, titled FGM in Kenya Country Profile Update 2016, the item identifies that FGM rates correlates strongly with educational levels and location. The report notes that in your ethnic group, the Kalenjin, girls tend to undergo FGM at a later age with the majority being cut after the age of ten, which coincides with your testimony about it being proposed at the age of eighteen in preparation for marriage.  27.9 percent of Kalenjin women have undergone FGM according to a 2014 study which is cited in that same report.

[26]     You also provide articles as part of your personal disclosure at Exhibit 4 which speaks to some of the Kalenjin traditions relating to forced marriage and FGM.  In providing a cultural context for your allegations, the documentary evidence establishes and objective basis for your claim. I conclude that your fear of persecution as a member of a particular social group is well founded.

STATE PROTECTION:

[27]     The relevant case law establishes the presumption that the state is capable of protecting and providing adequate protection to its citizens.  In your case there is clear and convincing evidence which demonstrates that adequate state protection is not available to you.

[28]     You testified that on two occasions you attempted to turn to the police, in both cases the police were unhelpful and dismissive of your allegations.

[29]     Item 2.1 of the NDP notes human rights issues in Kenya including the lack of accountability in many cases involving violence against women, include rape and FGM.  Although legislation has been passed forbidding the practise of FGM in Kenya, issues relating to FGM continue.

[30]     Item 2.1 notes that authorities are reticent to get involved in matters seen as being of a domestic nature and are known to accept bribes.  Authorities continue to cite 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 to be a private family matter.

[31]     The law makes it illegal to practise FGM per cured the services of someone who practises FGM or send a person out of the country to undergo this procedure.  The law also makes it illegal to make derogatory remarks about women who have not undergone FGM, government officials often practises being in public awareness programs to prevent the practise.

[32]     Nevertheless, individuals continue to practise FGM widely. Mixed support for the practise remains deep-rooted in some local cultures as well. Several reports cite that approximately twenty one percent of all adult women had undergone the procedure at some point in their lives in Kenya but that the practise has had, was heavily concentrated in a minority of communities.

[33]     For these reasons, I find that there is convincing evidence that adequate state protection would not be available to you.

[34]     I conclude that the presumption of state protection for you, in your particular noted circumstances has been refuted.

INTERNAL FLIGHT ALTERNATIVE:

[35]     Claimants must establish that they face persecution throughout their country of nationality. Nevertheless, I find that a viable internal flight alternative does not exist for you in Kenya.  You are a young woman of limited means with a [XXX] education.  You have attempted to find suitable alternatives in various cities noted above and have even spent some time sleeping outside out of fear of being found.

[36]     Item 5.5 of the NDP makes clear that there is not very much assistance given to single women looking for housing or employment either from the government or from NGO’s in many parts of Kenya.

[37]     You also testified about trying to find safety in both Nairobi and Mombasa.  In all of the locations mentioned you were located and threatened.  On several occasions you testified about barely escaping abduction. Although you have no evidence that it directly connects to your father, based on the information you’ve provided you believe it to be connected to your community and your refusal to undergo FGM.

[38]     I find sufficient grounds to conclude that relocating within Kenya would be unreasonable in your situation and I conclude that a viable internal flight alternative is not open to you in your country of origin.

CONCLUSION:

[39]     Based on the totality of the evidence I find you’ve established a well founded fear of persecution as a member of a particular social group and that you are a Convention refugee under Section 96 of the act.  Your claim for refugee protection is granted.

[40]     Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Syria

2020 RLLR 81

Citation: 2020 RLLR 81
Tribunal: Refugee Protection Division
Date of Decision: September 23, 2020
Panel: Daniel Mckeown
Counsel for the Claimant(s): Tarek Abou Lebadeh
Country: Syria
RPD Number: TB9-28810
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000135-000137

DECISION

[1]       MEMBER: The claimant is [XXX] she seeks refugee protection against Syria pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. For the following reasons, the Panel finds that the claimant is a Convention refugee and this claim is accepted.

[2]       This claim was based on the following allegations. The claimant fears the severe conditions in Syria which have been caused by the civil war. As an elderly woman she is fearful of living alone and what will happen to her. The claimant obtained a Canadian visa on [XXX] 2018, she travelled to Canada on [XXX] 2019, and she signed her Basis of Claim on [XXX] 2019.

[3]       The Panel took into consideration the Chairpersons Guidelines on women refugee claimants when considering the process of the hearing and assessing the facts of this case.

[4]       The identity of the claimant was established on the basis of her Syrian passport, the original of which was seized by the Minister.

[5]       The Panel had no significant credibility concerns about this claim. The Panel had no significant credibility concerns about-, excuse me as the claimant explained she did not leave Syria earlier because her husband was elderly and sick so she could not leave him. He died in 2016 so the claimant started thinking about leaving then. Once she had her visa in [XXX] 2018, she continued to be fearful for her daughter who also would have been left alone so she did not leave until [XXX] 2019 when the claimant’s daughter told her to leave and not worry about her. The claimant was clear and straightforward, there were no inconsistencies in her evidence or any attempts to embellish this claim. Any concerns that the Panel had were reasonably explained or otherwise did not outweigh the significant evidence in support of this claim.

[6]       In that respect the objective country conditions as reported in the NDP for Syria are unequivocal about the dire humanitarian situation in the country. It is well known that Syria has been in the midst of a horrific civil war for nine years which has seen incredible human rights atrocities committed on all sides of the conflict. The IRB has designated Syria as a country which is eligible for determination on a paper review basis, such is the severity of the conditions there, and to be perfectly honest the Panel felt this was one such claim which wo-, should have been flagged for paper review. The most recent source in the NDP for Syria is the March 2020 U.S. Department of State report and this source makes clear that the civil war and dire humanitarian situation continues unabated to this time. Quoting the UNHCR, the USDOS report notes that it is not safe, and it does not promote the return of refugees at this time. Further, the USDOS report notes that refugee returnees are often looked upon with suspicion for suspected support of the opposition. The country conditions evidence also supports that women face a significantly elevated risk of violence because of these conditions. The Panel is satisfied therefore that the claimant fits the profile of a person at high risk upon return to Syria and the claimant does have a Convention Nexus on the basis of her gender.

[7]       Given the country conditions in Syria, the claimant has rebutted the presumption that state protection would be adequate and forthcoming as the state of war exists throughout the country, there is no location in Syria the claimant could go where she would not face a serious possibility of persecution. For all these reasons the Panel finds that this claim is credible, the claimant’s fear is well-founded, the claimant faces a serious possibility of persecution on account of her membership in a particular social group in Syria. The claimant is a Convention refugee and this claim is accepted.

———- REASONS CONCLUDED ———-