Tag: PSG: Gender Based Violence

Categories
All Countries Guatemala

2020 RLLR 14

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

REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

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

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

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

DETERMINATION

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

ANALYSIS

Identity

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

Nexus

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

Credibility

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

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

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

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

State Protection

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

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

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

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

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

CONCLUSION

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

(signed)           D. Marcovitch

June 18, 2020

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

Categories
All Countries India

2020 RLLR 29

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

DECISION

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

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

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

Allegations

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

Determination

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

ANALYSIS

Identity

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

Credibility

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

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

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

Nexus

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

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

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

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

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

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

State Protection

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

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

Internal Flight Alternative for the Adult Female Claimant

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

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

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

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

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

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

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

State Protection and Internal Flight Alternative for the Associated Claimant

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

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

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

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

CONCLUSION

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

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2020 RLLR 26

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

REASONS FOR DECISION

INTRODUCTION

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

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

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

Identity

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

Credibility

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

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

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

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

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

Contact With the AOP

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

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

Internal flight alternative

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

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

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

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

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

State Protection

[19]     The objective documentary evidence states:

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

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

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

CONCLUSION

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

(signed)           R. Bebbington

March 12, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
3 Exhibit 3, Basis of Claim (BOC) Form, TB9-14699, received June 6, 2019.
4 Exhibit 5, BOC Amendments, received February 2, 2020; Exhibit 8, BOC Amendments, received February 3, 2020.
5 Exhibit 6, Claimant’s Personal Disclosure, received January 27, 2020, at pp. 25-31.
6 Ibid., at pp. 16-24.
7 Ibid., at pp. 32-46.
8 Calderon, Sonia Blancas v. M.C.I. (F.C., no. IMM-5367-08), Near, March 8, 2010, 2010 FC 263, para. 17.
9 Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), Item 5.3, s. 3.
10 Ibid., Item 5.11, s. Protecting Women from Violence.

Categories
All Countries Haiti

2020 RLLR 15

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

DECISION

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

Allegations

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

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

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

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

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

Identity

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

Credibility

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

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

Documentary Evidence

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

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

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

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

It goes on to say that:

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

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

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

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

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

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

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

State Protection

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

Internal Flight Alternative

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

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

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

Conclusion

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

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

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

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

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

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

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

 ——— REASONS CONCLUDED ———-

Categories
All Countries Democratic Republic of Congo

2020 RLLR 3

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

REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

DETERMINATION

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

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

Identity

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

Countries of Reference

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

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

Credibility

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

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

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

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

Well-Founded Fear of Persecution and Risk of Harm

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

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

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

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

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

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

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

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

State Protection

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

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

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

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

Internal Flight Alternative (IFA)

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

CONCLUSION

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

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

(signed)           Anike Marcotte

August 20, 2020

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

Categories
All Countries Nigeria

2019 RLLR 38

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

— DECISION

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

ALLEGATIONS

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

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

IDENTITY

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

CREDIBILITY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[19]     There is a legal test, which has two prove to be satisfied that the claimants would not face a serious possibility of persecution in the part of the country in which I found an IFA exists and conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants, for them to seek refuge there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— DECISION CONCLUDED

Categories
All Countries Mexico

2019 RLLR 37

Citation: 2019 RLLR 37
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2019
Panel: David Jones
Country: Mexico
RPD Number: VB8-06002
ATIP Number: A-2021-01124
ATIP Pages: 000210-000216

— DECISION COMMENCED

[1]       PRESIDING MEMBER: I have considered your testimony and the other evidence in this case and I am ready to render my decision for your claims. This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claims of the principal claimant, namely [XXX] and her minor son [XXX] and the associate claimant, her common-law spouse,  [XXX], who are citizens of Mexico who are seeking refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The principal claimant was appointed as the designated representative of the  minor claimant. I have also reviewed and applied the Chairperson’s guideline on women refugee claimants fearing gender-related persecution.

ALLEGATIONS

[3]       The specifics of the claims are set out in the narrative of the basis of claim forms. In summary, the claimants fear further abuse from the principal claimant’s ex-husband, namely [XXX], who is also the father of the minor claimant.

[4]       The claimants allege that in October 2009 the principal claimant met [XXX]. In [XXX] 2010 the principal claimant found out she was pregnant and decided to get married. During the pregnancy [XXX] started controlling and becoming abusive towards the claimant. On [XXX], 2011 the principal claimant married [XXX] and days after the marriage the abuse got worse.

[5]       I am not going to list all the incidents that the claimant testified to and described in the narrative attached to the basis of claim forms, but I will note that the incidents occurred in Mexico and involved verbal, physical, emotional and sexual abuse. The minor claimant witnessed some of the abuse, and at least in one instance involving [XXX] violently shaking the child. An incident on [XXX], 2014, led to the principal claimant deciding to move out with help from her family. The principal claimant also filed a police report but the response from the authorities was that they expected a husband and wife to solve their own problems.

[6]       [XXX] filed for divorce in [XXX] 2014 and shortly after, the divorce was granted. The principal claimant was awarded custody and [XXX] retained his parental rights. At the end of 2014 [XXX] started dating someone else and the principal claimant barely heard from him for two years. In late 2016 the adult claimants reconnected after they knew each other from junior high school and eventually moved in together. In [XXX] 2016 [XXX] found out about the new relationship and he threatened the principal claimant that he would break them up.

[7]       On [XXX], 2017, the principal claimant went to the U.S. to work to raise money and her sons stayed with her mother. [XXX] started threatening to report the principal claimant to U.S. authorities and to take away their son so the principal claimant decided to return to Mexico. On [XXX], 2017, [XXX] asked for a visit with their son, which the principal claimant allowed. When the principal claimant went to pick up her son [XXX] yelled and physically assaulted the principal claimant and violently shook the minor claimant. [XXX] was angry that the claimants were living together.

[8]       The principal claimant called the police and left with their son and filed a police report. The police again said that they should resolve their problems themselves.

[9]       The associate claimant has also been threatened seven or eight times and has been physically assaulted by [XXX]. For example, on [XXX], 2017, around [XXX]. the associate claimant was approached by [XXX], who yelled things such as, “Leave my wife alone,” and threatened the associate claimant if he did not stop seeing the principal claimant. During this incident [XXX] punched the associate claimant in the stomach, winding him, and then left.

[10]     In early 2018 the associate claimant finished his architectural program and to celebrate his parents paid for him to travel to Canada. While the associate claimant was in Canada [XXX] continued to harass the principal claimant, including at her workplace. On [XXX], 2018, the joint claimant’s family paid for the principal claimant and her son to travel to Canada as well to join the associate claimant.

[11]     Since the claimants have been in Canada [XXX] has continued to try and locate the principal claimant through her family. In the past few months the principal claimant’s brother, aunt and two cousins have all been contacted by [XXX] in his attempts to locate the claimants. [XXX] also started a court action in Mexico regarding custody of the child. The claimants believe through that action, amongst other ways such as through [XXX] wealthy family, [XXX] is able to locate the claimants anywhere in Mexico.

[12]     On [XXX], 2019, the adult claimants were married and the principal claimant is currently seven months pregnant.

DETERMINATION

[13]     I find that the claimants are Convention refugees pursuant to s. 96.

ANALYSIS

Identity

[14]     The claimants’ identities as citizens of Mexico have been established by the Mexican passports located at Exhibit 1.

Nexus

[15]     The allegations support a nexus to a Convention ground for the principal claimant based on her membership in a particular social group as a woman. The allegations further support a nexus to a Convention ground for the associate claimant and minor claimant based on their membership in a particular social group as members of the principal claimant’s family.

Credibility

[16]     I find on a balance of probabilities that the principal claimant has been the victim of domestic violence, as has the minor child who witnessed the abuse and in at least one instance was violently shaken by his father. In making that finding I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness.

[17]     In this regard the claimants testified in a consistent and straightforward manner that was consistent with their basis of claim forms and supporting documents. There were no relevant inconsistencies in the testimony or contradictions between the testimony and other evidence. I find that the claimants are credible witnesses.

[18]     The claimants also provided documents to support their claims. For example, documents found at Exhibit relate to reports to the police of domestic violence toward the principal claimant and the minor claimant. I have no reason to doubt the genuineness of these documents, and since they relate to the alleged domestic abuse, I place significant weight on these documents to support the allegations and overall claims.

[19]     I find that [XXX] has threatened the associate claimant and abused the minor claimant due to those claimants being a part of the principal claimant’s family. [XXX] threatened the associate claimant by saying: Get away from [XXX].

[20]     And: I am going to kill you.

[21]     Aside from witnessing the abuse of his mother the minor claimant was also violently shaken by [XXX] when [XXX] was abusing the principal claimant. There is no evidence that [XXX] ever threatened or abused the associate claimant or the minor claimant when he was not related to the principal claimant. As such, I find that the harm toward the associate claimant and the minor claimant are an extension of [XXX] abusive behaviour towards the principal claimant.

[22]     I find that the claimants have established on a balance of probabilities the facts that they have alleged in their claim. The claimants testified that they fear being persecuted because [XXX] will locate and continue to harm them if they were to return to Mexico.

Objective Basis

[23]     The objective basis supports the claimant’s fear of returning to Mexico. Domestic violence continues to be prevalent in Mexico. Numerous reports in the national documentation package found at Exhibit 3 indicate that domestic violence is prevalent in Mexico. For example, NDP items 5.10 state that:

… violence against women in Mexico is a “pandemic.”

[24]     The report goes on to note that 63 percent of women in Mexico have suffered abuse by men, and that most of the violence is at the hands of their partners.

[25]     While the objective evidence indicates that the Mexican government has attempted to enact legislation and policies to reduce the violence faced by women, as noted in NDP 5.2, violence against women continues to be a widespread problem. This is also indicated in the U.S. State report for Mexico at NDP item 2.1. that states:

State and municipal laws addressing domestic violence largely failed to meet the required federal standards and often were unenforced.

[26]     Based on the totality of the evidence before me I find that the claimants have established a well-founded fear of persecution if they were to return to Mexico. I further find that the principal claimant’s testimony regarding her ex-husband demonstrates that he has a continuing interest in locating and harming the principal claimant and her family, and therefore they have established a serious forward-looking risk if they were to return to Mexico.

State Protection

[27]     With respect to domestic violence the objective evidence as noted above supports the claimants’ testimony that there is no operationally-effective state protection available to them in their particular circumstances. Numerous items in the NDP indicate the challenges facing Mexico regarding state protection against crime generally. For example, NDP item 7.18 notes that Mexico has an extremely low rate of prosecution for all forms of crime. Prosecutions can take years to complete and that crime is unreported due to the generalized mistrust in authorities.

[28]     Additional information in the NDP item 2.1 regarding violence against women indicate that while:

There were justice centres that provided services, including legal services and protection. However, the number of cases far surpass institution capacity.

[29]     NDP item 5.10 states that:

…violence against women are not properly investigated, adjudicated or sanctioned.

[30]     This report goes on to state that:

… police, do not perform their duties adequately, treating domestic violence as though this was the ‘normal’ state of affairs.”

[31]     I note that this is the response the principal claimant received both times she tried to report violence against her to the police. Based on the evidence I find there is no operationally- effective state protection available to the claimants in their circumstances. As such, the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

[32]     For the reasons below I find the claimants do not have an internal flight alternative. When determining whether an internal flight alternative is available in Mexico, I must find both that a claimant would not be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual treatment or punishment or face a serious possibility of persecution in the proposed internal flight alternative, and two, the conditions in that part of the country are such at it would be objectively reasonable in all the circumstances including those particular to the claimant for them to seek refuge there.

[33]     The burden placed on claimants is fairly high in order to show that an internal flight alternative is unreasonable. It requires nothing less than the existence of conditions that would jeopardize their life and safety if they relocated to the internal flight alternative. Actual and concrete evidence of adverse conditions is required. The objective evidence supports finding a serious possibility of persecution would exist for the claimants throughout Mexico.

[34]     In a response to information request at NDP item 5.9 on the right of a parent to know the location of their child when a spouse relocates within Mexico indicates that a parent who has parental authority but who does not live with the child has the legal right to know the child’s address and telephone number. The report further indicates that parental authority is automatically granted to both parents, but family judges can order that a parent loses that right.

[35]     With respect to the minor child the ex-husband retained his parental rights in the order granting the divorce and there has been no further orders with respect to parental authority. As such, the ex-husband would have the right to apply through the courts to obtain the child’s address. I find that the ex-husband’s history of behaviour indicates he has a continuing motivation, and given his parental authority, he also has the means to use the Mexican legal system to be able to track the principal claimant throughout Mexico.

[36]     Based on the totality of the evidence I find the claimants have established that there is no viable internal flight alternative available to them. I find that the claimants would face a serious possibility of persecution throughout Mexico given that the ex-husband has shown a history of continuing to abuse the claimants and his ability to use the Mexican state to assist in locating them.

CONCLUSION

[37]     For the reasons above I determine that the claimants are Convention refugees pursuant to s. 96 of the Act, given they have established that they would face a serious possibility of persecution and the Board therefore accepts their claims.

[38]     Given I am granting protection under s. 96 of the Act, I find it unnecessary to consider their claims under s. 97.

— DECISION CONCLUDED

Categories
All Countries Haiti

2019 RLLR 34

Citation: 2019 RLLR 34
Tribunal: Refugee Protection Division
Date of Decision: December 5, 2019
Panel: Elise Escaravage
Country: Haiti
RPD Number: VB8-03742
ATIP Number: A-2021-01124
ATIP Pages: 000191-000195

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER: Reasons for decision.

INTRODUCTION

[2]       I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. These are the reasons for the decision in the claim of Madam [XXX] a citizen of Haiti who is claiming refugee protection pursuant to Sections 96 and 97 of the Immigration Protection Act.

[3]       In rendering my reasons I have considered and applied the Chairperson’s Guidelines on women refugee claimants fearing gender related persecution throughout the hearing and in my decision as this is a case of domestic violence.

ALLEGATIONS

[4]       The Claimant detailed her allegations in her Basis of Claim form which can be summarized as follows. The Claimant is 69 years old from Haiti fearing domestic violence at the hand of her ex-partner [XXX] (phonetic) who is 15 younger than her. The Claimant endured close to 10 years of domestic violence which included armed death threats, even after she left him in [XXX] 2013.

DETERMINATION

[5]       I find that you are a Convention refugee as you have established a serious possibility of persecution on account of your membership in a particular social group as a woman facing domestic violence.

ANALYSIS

IDENTITY

[6]       I find that your identity as a national of Haiti has been established by your testimony and the supporting documentation in file including a certified copy of your passport at Exhibit 1.

CREDIBILITY

[7]       I find you to be a credible witness and therefore believe what you said in support of your claim. You testified in a straightforward manner and there were no relevant inconsistencies between your testimony and the other evidence before me which have not been satisfactorily explained.

NEXUS

[8]       Given your history of domestic violence I find that your fear of persecution in Haiti has a nexus to the Convention ground of membership in a particular social group as a woman facing gender based persecution. For this reason your claim will be assessed under Section 96 of The Act.

WELL-FOUNDED FEAR OF GENDER BASED PERSECUTION

[9]       I find that you have established an objectively well-founded fear of gender based persecution for the reasons that will follow. You testified that you entered a romantic relationship with a friend and former customer of yours in 2009, named [XXX] (phonetic). Your house was affected by the 2010 earthquake to the point where you had to move out. You moved in with him. At the beginning he was not aggressive to you as you helped him financially through the small business you had where you sold [XXX]. However when you started telling him that you no longer had money to give him he became violent to you. He assaulted you physically to the point of breaking your left arm. You submitted a photograph of yourself with a cast at Exhibit 4 and brought the original picture at the hearing.

[10]     It was difficult for you to talk about the domestic violence as you were so embarrassed and ashamed that you were dating a younger man which is stigmatized in Haiti.  As such you kept the violence to yourself and did not talk about it with your children until it went too far. In [XXX] 2013 you decided to finally leave [XXX] (phonetic) thinking that your struggles would be over. You moved in with your niece, [XXX] (phonetic) who submitted a support letter to that effect at Exhibit 4.

[11]     Over a year later in [XXX] 2014 [XXX] (phonetic) found you at work at the [XXX] (phonetic). He assaulted you physically once more, hitting you in the face and breaking your teeth. You submitted documentary evidence of your consultation at the dentist you had following the assault at Exhibit 4.

[12]     [XXX] (phonetic) continued to threaten, harass and assault you up until [XXX] 2017 even if you had separated in 2013. He attacked you once when you were at the [XXX] on your way home and left you lying in the streets.

[13]     In [XXX] 2017 you received the last threat from him. He showed up at your house when your daughter [XXX] (phonetic) was there and squeezed your hand while threatening you. [XXX] (phonetic) witnessed the assault and she reported it to the police. Given the numerous instances of gender based violence you suffered at the hands of [XXX] (phonetic), despite the fact that you separated in 2013, you are afraid that he may locate and harm you if you return to Haiti.

[14]     Objective evidence included in the National Documentation Package overwhelmingly points to alarming rates of domestic violence throughout Haiti and inadequate protection available to victims of domestic abuse. Items 5.13, 5.3 and 2.4 are examples of such.

[15]     For instance a research from the IRB’s research unit states that “sources report that domestic or family violence is widespread in Haiti. According to a Haiti mission report in 2017 domestic violence is a real societal problem. It is recorded in all social strata and is particularly prevalent in the impoverished areas of Port aux Prince as well as in remote rural areas.” Item 5.3.

[16]     The same report indicates that domestic violence is tolerated and considered normal by society and that violence against women and girls is trivialized in Haitian society. Human Rights Watch emphasises that Haiti has no specific legislation against domestic violence, sexual harassment or other forms of violence targeted at women and girls.

[17]     Based on all of the evidence before me, including the sources cited in your testimony, I find that you have established a serious possibility of gender based persecution in Haiti.

STATE PROTECTION

[18]     I find that there is clear and convincing evidence before me that the state is unable or unwilling to provide you with adequate protection. You testified that you went to the police station in order to file a police complaint for domestic violence in 2016. The police response was humiliating as they referred to you as a desraee (phonetic) which in Creole means a woman without morals. They told you that you were simply an old woman looking for attention from younger men and that they had bigger issues to deal with than your family affairs.

[19]     The Immigration and Refugee Board’s research on violence against women at Item 5.3 corroborates the experience you described and lack of adequate state protection for women like you who are victims of gender based violence such as domestic violence. The sources point to a lack of means and education of police as well as their lack of sensitivity. Furthermore it describes the number of obstacles in seeking justice for women victims of violence in Haiti. Notably corruption and disfunction of the legal system, impunity of aggressors and victims’ lack of confidence in the legal system.

[20]     As an elderly woman with no education I find that you are particularly vulnerable and may face additional barriers in seeking state protection. For these reasons I find that the presumption of state protection has been rebutted in your case.

INTERNAL FLIGHT ALTERNATIVE

[21]     Based on the totality of the evidence before me I find that it is not objectively reasonable in all of the circumstances, including those particular to you, for you to seek refuge in Haiti for the following reasons.

[22]     You are currently 69 years old and will tum 70 years old by the end of this month. You do not have access to pension in Haiti nor to health care. You have never been to school, in fact not even a day so you cannot read or write. Even through you have proven to be quite resourceful in raising three of your four children by yourself, by running a small [XXX] business it would be unreasonable to expect you to relocate to another city within Haiti considering your personal circumstances such as your age, your lack of access to employment, your lack of access to pension or any revenue and by your limited capacity to seek housing as an elderly single woman. While I note that you have three children living in Port aux Prince at the moment, I do not find it reasonable for you to relocate there in light of your personal circumstances. I find — for this reason I find that it would be objectively unreasonable to expect you to relocate anywhere in Haiti. As the internal flight alternative test fails on the second prong of the test I find that there is no viable internal flight alternative available to you in Haiti.

CONCLUSION

[23]     Based on the analysis above I conclude that you are a Convention refugee, accordingly I accept your claim.

— PROCEEDINGS CONCLUDED

Categories
All Countries Somalia

2019 RLLR 118

Citation: 2019 RLLR 118
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: Isis van Loon
Country: Somalia
RPD Number: VB8-04737
ATIP Number: A-2020-01459
ATIP Pages: 000233-000241

— DECISION AND REASONS BY THE MEMBER

[1]       PRESIDING MEMBER: [XXX], the claimant, seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines On Women Refugee Claimants Fearing Gender-related Persecution. I have also considered the claimant’s level of education and life experiences.

Allegations

[3]       The claimant was married by her father’s arrangement to the son of a [XXX] in Korlari (ph) in December of 2016. She was about 16 years old when this marriage was arranged. Her husband was abusive and on April 7th of 2018 while they visited her parents’ house an al-Shabaab raid on the home took her father and her husband and the al­ Shabaab later killed them.

[4]       After this her father-in-law attempted to force the claimant to marry his other son. As a minority clan member, she had no protection from this and she fled the country with the assistance of her family. If she returns to Somalia, her father-in-law will find her and force her to marry his other son who she fears will also abuse her.

[5]       I find that the claimant is a Convention refugee as she’s established a well-founded fear of persecution based on a Convention ground.

[6]       In terms of identity, the claimant does not have a passport or a birth certificate. She spoke Somali as would be expected of a person of Somali origin. She provided a number of documents to support her identity. Exhibit 4, page 2 is a letter from the Manitoba Somali Association and it describes the lengths that they went to confirm her membership in the minority Shanshee (ph) clan as well as her origins in the Qoryoley town area in Somalia.

[7]       This Manitoba Somali Association described interviewing a Mr. [XXX] (ph) who had known her family in Somalia and they lived in the same area. The committee compared notes on this interview with Mr. [XXX] and with responses to questions they’d asked the claimant, found them consistent. They also interviewed other Somalis from the same area with respect to descriptions and landmarks. Based on all their research they were able to confirm the claimant is a Shanshee clan member and a citizen of Somalia.

[8]       At Exhibit 4, page 3, the Winnipeg Somali Community president confirms that elders also interviewed the claimant and found she had knowledge consistent with a Shanshee person from Qoryoley.

[9]       Exhibit 4, page 8 is a statement from [XXX] himself who also became a witness to this hearing. He testified that he lived in the same neighbourhood and that he’d known her parents better than her but he knew her briefly when he was a child and she was a child.

[10]     He testified that he was from Qoryoley and he remembered the parents a little because he’d left when he was young and he did confirm that she was of the minority clan Shanshee.

[11]     Exhibit 4, page 5 is from the claimant’s mother who provided an affidavit from an advocate in Nairobi dated July 9th of 2019 and her affidavit confirmed that her daughter was of the Shanshee clan.

[12]     The claimant said that she didn’t have any identity documents because she was from a minority clan and it was very difficult to get documents in Somalia, particularly with respect to being a minority clan as what documents that you were able to get was pretty much controlled by the majority clans and that if anything is to be issued, it’s a very long process and she didn’t have much time. She needed to leave the country in a hurry.

[13]     The country documents state consistently that record-keeping where it exists is poor in Somalia. The Executive Director of the Somali Canadian Association of Etobicoke in the NDP 3.9 actually stated that due to the civil war all personal records had been destroyed. Seen in this light, the claimant’s lack of formal identity documents appears consistent with country conditions.

[14]     It’s pretty easy in Somalia, according to the country documents, to obtain fraudulent passports and fraudulent identity cards so the fact that the claimant has neither a passport nor any other identification card is not necessarily detrimental to her claim.

[15]     Based on the evidence before me, I am satisfied on a balance of probabilities that the claimant is who she says she is and that she is a member of the Shanshee minority clan and a citizen of Somalia.

Credibility

[16]     When a claimant swears to the truthfulness of certain facts, there is a presumption that what the claimant has said is true unless there is sufficient reason to doubt its truthfulness. The presumption before me is that your testimony is true; however, this could be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions and undetailed testimony.

[17]     That was not the case here. In this case, the claimant was straightforward and forthcoming. She provided detailed testimony on many aspects of her life and experiences and why she had to leave Somalia.

[18]     There were no relevant inconsistencies in her testimony or contradictions between her testimony and other evidence before me.  She didn’t seem to embellish events and actions even when it could have appeared favourable to her claim.

[19]     I found her to be a credible witness and therefore I believe what she has alleged in support of her claim.

[20]     As well she provided a number of relevant and probative documents. As previously discussed, there were statements verifying her identity in Exhibit 4. As well, Exhibit 4, page 8 was the witness statement which confirmed the forced marriages and some of the risks that minority clan members face.

[21]     As well, her uncle and her mother both verified in their affidavits that the father-in-law had been trying to force the claimant to marry the brother of her deceased husband and both of them, I note, have now escaped to Kenya as a result of the claimant’s actions it became dangerous for them to remain as the majority clan had insisted that the claimant stay and get married. When she didn’t do that it put her family at risk and they fled to Kenya.

[22]     So I found these documents were relevant and helpful in confirming and corroborating the claimant’s documents and testimony.

[23]     In terms of a nexus, I found the persecution that the claimant faces has a nexus to one of the Convention grounds, that of membership in a particular social group as a woman, as well specifically she is a minority clan woman and she’s at risk of forced marriage and, in fact, has already experienced that one time.

[24]     Therefore, I have assessed this claim under section 96.

Well-founded fear

[25]     In order to be considered a Convention refugee, a claimant must demonstrate that they have a well-founded fear of persecution.  This includes a subjective basis and an objective basis for this fear and I note also that it must be forward-looking.

[26]     Based on the claimant’s testimony, supporting documents, the witness testimony, the country condition documents, I find the claimant has a well-founded fear of persecution for the following reasons.

[27]     In terms of the subjective basis, her abusive husband was killed by al-Shabaab around the 18th of April, 2018.  Shortly after this, her father-in-law demanded that she marry his other son who she had seen was equally abusive. Shortly after that, she fled to Mogadishu, hiding while she was making arrangements to leave. She left the country on [XXX] for Ethiopia initially, stayed there until [XXX] of 2018 under the advice of an agent who she’d employed to assist her.

[28]     She left Ethiopia and arrived in Toronto on [XXX], 2018 and from there drove to Winnipeg and claimed asylum, signing her Basis of Claim form on the 28th of August of 2018.

[29]     I find the claimant has adduced sufficient credible evidence by her testimony as well as by her actions to establish a subjective fear of persecution in Somalia.

[30]     I asked the claimant what made her leave the country and she said that she’d explained to her uncle that she did not want to marry the brother of her husband. Her uncle told her that if she refused they would be killed together.

[31]     I asked her then, so why did you go and she said: I felt that he could torture, or abuse or beat me – referring to this brother – and I was escaping to avoid this. She said very clearly, I wasn’t going to undergo a forced marriage.

[32]     She told me that a female is always the victim and that if you were in the minority and you were a female you are even more at risk.  She described her life in Somalia, how she’d been forced to marry at about age 16, the abuse that she’d endured and that she had no recourse but to suffer this abuse.

[33]     She spoke of her escape and what she did staying under the radar while she was in Mogadishu and her efforts to find a way out of the country.

[34]     The witness offered testimony and he described the situation in Somalia for women with an experience that he had had, where a sister-in-law had been married to his cousin. Now, the witness was also from a minority clan, a different one from the claimant but he was from a minority clan. He said that majority clan people came and took the sister-in-law by force from her cousin, to whom she was married, and they married her to one of their members. After the sister-in-law died, they came and took her younger sister and they also forcibly married her. He said this is like a normal thing and there was nothing that anyone can do. He said it is like that everywhere.

[35]     The country documentation is consistent with the claimant and the witness’s testimony of persecution and the risks in Somalia. Forced marriage is deeply rooted in Somali culture and its interpretation of Islamic practices according to the NDP 5.2. Harmful practices such as forced marriages are still taking place and are common although they are constitutionally against the law.

[36]     Women’s rights and physical integrity are challenged by religious and customary practices, including polygamy, forced marriage and wife-inheritance. Gender-based violence is widespread in Somalia according to Human Rights Watch.

[37]     In terms of widow inheritance, there’s actually a name for that, duma (ph), and it means that a widow marries her deceased husband’s brother. Apparently there’s a report in a book called Culture and Customs of Somalia that this tradition is dying out but that it is probably more frequent in rural areas than in towns.

[38]     I asked the claimant what her place of residence was like and she described a place where there were farms even within the town as well as farms around the town. She described livestock. In fact, her bride price was ten goats paid to her father. As a minority clan member, she said she was only worth ten goats to them. If she’d been of a majority clan, it would have involved large sums of money and goats and camels as well.

[39]     So, while the tradition may be dying out according to that one source, I’ve heard the credible claimant’s testimony as well as corroboration and documents from the uncle who was involved with this second marriage that was to be arranged as well as the mother and, of course, there is the testimony of the witness who said that this type of thing is very common in that part of Somalia and generally in Somalia.

[40]     Again, as I said the country documents confirm that sexual and gender-based violence are serious concerns throughout Somalia and a woman without family, friends or clan connections or without resources in general is likely to be at risk of sexual and gender­ based violence upon her return.

[41]     There’s a report called No One Cries for Them: The Predicament Faces Somalia’s Minority Women. This report paints a grim picture of the human rights situation affecting women generally in Somalia and minority women in particular based on the various historical, social, economic, and political factors, including traditional religious and clan structures compounded by years of violence, poverty and famine. This has made Somalia one of the worst places in the world for women, according to this report.

[42]     The report highlights how women’s rights and those of minority women in particular are ignored by the majority population, how they are violated with impunity. The plight of women during the last two decades of conflict has been characterized by displacement, rape, gender-based violence, etcetera, etcetera, inadequate or non-existent political representation and lack of access to economic and social rights and these are some of the grim realities that women of Somalia in general and especially minority women continue to endure today.

[43]     Based on all the evidence before me, I find that the claimant would face a senous possibility of persecution if she were to return to Somalia.

State protection

[44]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption there is an onus on the claimant to establish on a balance of probabilities with clear and convincing evidence that their state’s protection is inadequate.

[45]     I find that adequate state protection would not be forthcoming in this particular case and there is clear and convincing evidence that rebuts on a balance of probabilities a presumption of state protection.

[46]     Women in Somalia do not have the same rights as men and they’ve experienced systematic subordination to men despite provisions in the federal constitution, a weak judiciary, as well as misogynist traditional and tribal laws and practices work against women. In general, a woman fearing sexual or gender-based violence is unlikely to be able to access effective protection from the state according to the NDP 5.5 which is from the United Kingdom Home Office.

[47]     Gender-based violence is widespread. Constitutional protections are largely limited to the paper that they are written on and they are not available in practice. Most incidents go unreported. There is a culture of impunity. It is a serious and according to recent reports increasing problem.

[48]     Domestic violence such as the claimant experienced is generally accepted with 76% of women aged 15 to 49 believing that a husband is justified in beating his wife for burning the food, refusing sexual relations, or arguing with him. Thus, the claimant who endured domestic violence from her late husband and was then faced with forced marriage to her equally abusive brother-in-law is in the minority. She’s a woman who did not agree with this and she actually fled the situation in disagreement with her in-law’s demands and the cultural expectations.

[49]     Thus I find there is clear and convincing evidence demonstrating on a balance of probabilities the state is unable or unwilling to provide this claimant with adequate protection and the presumption of state protection has been rebutted.

[50]     An internal flight alternative arises when someone who meets all the elements of the definition of a Convention refugee in their home area of the country nevertheless is not a Convention refugee because they could live safely elsewhere in the country.

[51]     The test for this has two prongs. I’d have to be satisfied on a balance of probabilities that there would be no serious possibility of persecution in the part of the country to which I found an IFA exists; and, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all circumstances, including those particular to the claimant for her to seek refuge there.

[52]     Looking at this second part, I do find that it would be unreasonable in all circumstances, including those particular to the claimant, for her to seek refuge there, anywhere, in Somalia and this is why.

[53]     First off, the claimant testified that if you’re seen as Westernized, i.e. you’ve lived in a Western country for any period of time as the claimant has now done for over a year, you can be seen as a spy and be treated very poorly.

[54]     I asked the witness as well if there was anywhere in all of Somalia that the claimant could be safe and he said that she wouldn’t be able to survive anywhere else if her clan was not there and that she’s from a minority clan and it’s only in that general area. As she testified earlier there are some clan members in Mogadishu and in Qoryoley area.

[55]     The witness said that if the claimant goes back she’11 end up right back in the hands of the people that she was running from.

[56]     Country documentation notes there’s ongoing insecurity and severe drought in Somalia which poses a major risk to the viability of any repatriation process. That’s NDP 14.6.

[57]     Somalia is a far from stable state. There are more than five million people, that is 40% of the population who are in need humanitarian assistance, according to NDP 5.7. Access to water is a major issue according to Amnesty International and this leads to illness and disease widespread. Even simple access to shelter is problematic and when and if shelter is found, returnees are at risk of regular and ongoing forced evictions.

[58]     The situation for internally displaced women, which is what this claimant would be if she returned to an IFA in Somalia, is grim. The Response to Information Report from the IRB states that according to sources due to the need for male protection in Somali society, women without a support network face extreme hardship and difficulties accessing housing or employment.

[59]     The gender advisor similarly explained that even for women with clan protection that women’s rights are not protected, especially in cases of rape or sexual violence. Perpetrators can even be from the same clan and clan elders can resolve cases such as this in traditional ways which can result in forcing a woman to marry the person who has been harming in order to protect their family honour.

[60]     Minority women lack any such protection and experience most pronounced forms of social, cultural and economic discrimination including exclusion from basic services, difficulties accessing support.

[61]     I mentioned the forced evictions of internally displaced people. Mass evictions are not uncommon.

[62]     The documents are clear that any women need to have established clan network support and endorsement from clan elders in order to survive and with no connections this would be difficult.

[63]     It would be unreasonable to expect the claimant to return to the area where she’s from where her father-in-law and his son, who he plans to make her marry, are living and if she were to go anywhere else she would not have access to clan support.

[64]     The UK Home Office at NDP 1.12 also says that travel by land across southern and central Somalia to a proposed place of relocation may well in general pose real risk of serious harm, particularly the al-Shabaab checkpoints.  The claimant herself described traveling just to Mogadishu, hiding in among the sheep and the goats in the back of a truck, hoping at every checkpoint that she would not be discovered.

[65]     There are checkpoints all over Somalia operated by government forces, allied groups, armed militias, clan factions and al-Shabaab. These checkpoints have inhibited movement, exposed citizens to looting, extortion, harassment and violence according to the US Department of State report.

[66]     So, even just relocating to another place in Somalia would put the claimant at great risk.

[67]     When you’re looking at the test for an internal flight alternative if either prong of the test is not met, then there is no viable internal alternative in the country. I’ve considered the second prong which requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to any safe area and it would have required actual and concrete evidence of adverse condition and I have now considered the conditions throughout Somalia. I have reviewed the country documentation. I’ve considered the circumstances of this claimant and I find it is objectively unreasonable and unduly harsh as understood in Canadian jurisprudence for this claimant to seek refuge anywhere in Somalia; therefore, there is no internal flight alternative.

[68]     I find that there is a serious possibility the claimant would be persecuted up on her return to Somalia throughout the entire country. Based on the totality of the evidence I have concluded the claimant is a Convention refugee and accordingly I’ve accepted her claim.

—PROCEEDINGS CONCLUDED

Categories
All Countries Rwanda

2019 RLLR 117

Citation: 2019 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: April 26, 2019
Panel: Miryam Molgat
Country: Rwanda
RPD Number: VB8-02636
ATIP Number: A-2020-01459
ATIP Pages: 000228-000232

— DECISION

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

[2]       The claimant claims to be a citizen of Rwanda and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground in Rwanda. My reasons are as follows.

[3]       The claimant’s complete allegations are set out in the Basis of Claim Form at Exhibit 2 and need not be repeated here in detail. To summarize briefly, the claimant is a woman born in 1979. She left her country on [XXX], 2018. She left behind her three children, her siblings and her mother. Her claim is based on gender-related abuse from her husband, [XXX] (phonetic). The abuse was sexual and physical in nature. The certainly sought state protection to no avail. She suffered a miscarriage as a result of her husband’s abuse. She was repeatedly raped by her husband in the course of their marriage. Her husband is employed by the [XXX] and is associated with the [XXX].

[4]       The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in her country of nationality. The main issue is state protection.

IDENTITY

[5]       The claimant’s national identity has been established by the testimony and the supporting documentation filed and entered in the proceeding. The current passport is on file, along with other documents. I’m satisfied of the claimant’s identity.

NEXUS

[6]       For the claimant to be a Convention refugee, the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. In other words, the claimants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. I find that the harm feared by the claimant is by reason of one of the five grounds enumerated in the Convention refugee definition, namely, as a woman victim of domestic abuse, i.e. membership in a particular social group.

[7]       Turning to credibility, when credibility is assessed there are two principles that are followed. Firstly, when the claimant swears to the truthfulness of certain facts there is a presumption that what she is saying is true unless there’s reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and commonsense. The determination as to whether the claimant’s evidence is credible is made on a balance of probabilities.

[8]       I had concerns regarding credibility because of the significance of some of the Basis of Claim Form amendments and very specifically the amendment relating to the claimant’s husband’s association with the DMI. DMI is the [XXX]. I also had credibility concerns regarding a certain lack of corroborating evidence in support of her allegations.

[9]       Having heard the claimant’s testimony and having observed her in person, I find her credible. Her demeanour was very credible. Her face was very expressive and was a direct and contemporaneous expression of emotions that her testimony conveyed. There was a lack of embellishment to her testimony. She many times simply said, “I don’t know” when asked questions. Her testimony was direct. Her explanation for some of the omissions from the original Basis of Claim Form were reasonable. She explained that she had so many things in her head and I found that her explanation for what she meant by that was very credible and directly supported the subject matter of the Chairperson’s Gender Guidelines in terms of what one can reasonably surmise and expect in the testimony of gender-related persecution, which in this case is a history of horrific abuse at the hands of her husband. So I draw you negative inference from the fact that certain aspects of the claimant’s material allegations were not in her original Basis of Claim Form.

[10]     In addition, she added credible testimony in her hearing which was not in the Basis of Claim Form, for example, explaining that she had considered divorce and she provided a reasonable explanation for why she did not go ahead and actively take steps to obtain a divorce from her husband and she also said that her husband threatened her and said that she would only leave the house dead.

[11]     The claimant was able to reasonably and consistently explain why she had failed to mention the DMI in her original Basis of Claim Form and she was able to credibly testify to her husband’s employment history. Given the relatively secretive nature of [XXX], I found her lack of detail on his employment with the DMI and how he combined that with his [XXX] to be credible. To draw a parallel, unless the spouse worked for the [XXX] in the case of Americans, I would not reasonably expect the spouse to know a lot about what the other spouse in the marriage did while employed by the [XXX], for example.

[12]     I further note that the claimant, who has 12 years of education, came across as relatively unsophisticated and that this helped me to understand certain perceived gaps in the credibility which she was able to resolve to my satisfaction at the hearing.

[13]     Moving on to the question of subjective fear, I found her credibility in this regard to be -­ her testimony in this regard to be credible and she provided reasonable explanations for why she had not sought refugee status in the United States. She explained in a spontaneous way why she had decided to come to Canada and why she had chosen Vancouver specifically. Her explanation had to do with the lack of a significant Rwandan population here and the fact that she knew no one in Canada, unlike the situation of the people she was visiting with in the United States. So I found that that aspect of her oral testimony added to her credibility and actually positively contributed to a finding that she does have a subjective fear.

[14]     Turning to the determinative question of state protection, it was open to the claimant, according to the law, to rebut the presumption of state protection with clear and convincing evidence. Individual police figures do not prove that state protection is inadequate and it is unclear to me whether the claimant reasonably tested the effectiveness of state protection in Rwanda. I disagree with counsel as to whether there is adequate state protection for domestic violence in Rwanda but, ultimately, that’s neither here nor there because I agree with counsel that the claimant, in her specific case, is unable to access effective adequate state protection and I will start the analysis by assuming, for the purposes of analysis, that there is acceptable enough or adequate enough state protection for domestic violence in Rwanda that one needs to try to understand why the claimant did not make further efforts to obtain state protection.

[15]     I note in this regard that the Response to Information Request, RWA104588.E, which is item 5.1 of the National Documentation Package at Exhibit 3, provides detailed information on the existence of hotlines and of one-stop centres and on the fact that there are gender desks at the police station and that there is a gender desk within the Rwandan Defence Force and Ministry of Defence.

[16]     I note, and I agree with counsel, that there are shortcomings to the state protection measures in place in Rwanda for domestic violence, but I do note, for example, still from this Response to Information Request, that there have been several convictions perpetrated of domestic violence. For example, there was a conviction of 115 perpetrators of spousal harassment and there was a conviction of 53 perpetrators of adult rape. I note that the possible sentence for spousal rape is notably lower than that of adult rape outside of marriage and I note that, in general, the attitude in Rwanda appears to be that this is often a private matter which should be resolved, probably to the detriment of the victim, within the family. But all the same, when I look at the extensive information in this Response to Information Request, I found that there were more avenues that the claimant could have pursued and did not.

[17]     However, I find that in her case she would not have been able to access adequate state protection, not because of a problem with the Rwandan Police, who are the first level of response to complaints of domestic abuse, but rather because of her husband’s association with the DMT.  This matters not only because of what I find is objective evidence supportive of an adequate level of state protection for domestic violence in Rwanda, but also because the claimant twice testified that had her husband not worked for the DMI, she would have been able to get state protection. I can’t ignore that testimony and even less so when it was clear and direct, unsolicited. It was not in response to a direct question and it came twice during the hearing.

[18]     Now, turning to the DMI, as was well argued by counsel, it’s not surprising that there’s little information on the DMI, given the nature of its work. I find that the DMI does exist. As is indicated by Exhibit 6, it is a notorious agency and I find that, on a balance of probability, it is an agency with malevolent goals and practices. Unlike the evidence on the Rwandan Police, which seems to be more mixed, the evidence on the DMI would point to an agency which has specialized in human rights abuses conducted in a covert way and, as the claimant’s testimony on what little she knew of her husband’s work, fully supported this. She said that she went out at night. She said that he came back with bloodstained clothes and she provided during the hearing testimony that was shocking with regards to what the DMI seem to do, which in that case was to blow up the home with the family inside the home of people who are political opponents of the Rwandan government, and this was in addition to information that she had already provided in her Basis of Claim Form of people being persecuted in front of her and her husband showing her the abuse as a way of further intimidating her.

[19]     In addition to her husband working for the DMI, she has established that he is someone who is evil and who continues to want to harm her and her family members. Her testimony on what has happened to her family members since she left was credible. I note that at one point he was sentenced to a criminal sentence, but I found that that is not enough for me to conclude that he no longer has the profile or the motivation or the capacity to persecute her should she return to Rwanda and I further find that this profile of his is such that I find that he would thwart any serious attempt on the claimant’s part to obtain state protection.

[20]     When asked why she did not complain at a police station where her husband was not employed, the claimant spontaneously testified that that is not how it works and that it’s not possible to do so. I accept that explanation and I accept that she did complain twice to the police of her husband’s domestic abuse and that there was an utter failure of state protection in response to this. So given all of this, I find that the claimant has rebutted the presumption of state protection with clear and convincing evidence.

[21]     Turning to the last question, which is that of internal flight alternative, it was not canvassed at the hearing, but I find that, given her husband’s profile and the fact that he is employed by the DMI, I find that the claimant faces a serious possibility of persecution throughout Rwanda as the state is in control of the entire territory and it would not be difficult for the claimant to locate her should she return. It’s clear that he’s motivated to do so and, in addition, Rwanda is a geographically quite small country.

[22]     In conclusion, having considered all of the evidence, I determine that there’s a serious possibility that the claimant would be persecuted in Rwanda for one of the five grounds enumerated in the Refugee Convention.  I find that the claimant is credible. She has established that her husband works for the DMI and has the motivation and capacity to continue to persecute her should she return to Rwanda. This matters, as it relates to the determinative issue of state protection.

[23]     Having come to this conclusion, I have not conducted further assessment under section 97(1) of the Act. I conclude that the claimant, Mrs. [XXX], is a Convention refugee and I, therefore, accept her claim.

— DECISION CONCLUDED