Tag: PSG: Gender Based Violence

Categories
All Countries Colombia

2019 RLLR 62

Citation: 2019 RLLR 62
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2019
Panel: David D’Intino
Counsel for the claimant(s): Michael Brodzky
Country: Colombia
RPD Number: TB8-10382
Associated RPD Number(s): TB8-10409, TB8-10410
ATIP Number: A-2020-01274
ATIP Pages: 000156-000166

REASONS FOR DECISION

[1]       [XXX] (the principal claimant), her daughter [XXX] and her son [XXX] (the minor claimants), are citizens of Colombia and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimants’ allegations are fully set out in the principal claimant’s basis of claim (BOC) form2. To summarize, the principal claimant alleges a serious possibility of persecution on a Convention ground and a risk to life or of cruel and unusual punishment or treatment in Colombia by her ex-partner [XXX].

DESIGNATED REPRESENTATIVE

[3]       The principal claimant was appointed as the Designated Representative for her minor children. She provided a written consent letter3 from her ex-spouse to take the children to Canada.

CHAIRPERSON’S GUIDELINES

[4]       In assessing the evidence of the principal claimant, I have considered the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.4

DETERMINATION

[5]       The principal claimant is a Convention refugee, as she has demonstrated a serious possibility of persecution on a Convention ground, as a member of a particular social group – women fearing gender-related persecution.

[6]       The minor claimants are also Convention refugees, as they have demonstrated a serious possibility of persecution on Convention ground, as members of a particular social group – family members of the principal claimant.

ANALYSIS

Credibility

[7]       The principal claimant was a credible witness. Her testimony was consistent with the evidence in her narrative and she provided documentation which was corroborative of certain aspects of her claim. Her evidence was free from material contradictions or omissions and I find that she did not embellish her evidence.

[8]       As such, I make the following findings of fact:

a) The principal claimant met her former partner [XXX] in 2000 while working for his uncle’s company called [XXX]. She became pregnant after dating him for approximately one year and they moved in together in [XXX] of 2002;

b) [XXX] was affiliated with the Centro Democratico Party and worked on the campaign of one [XXX];

c) After living together for a while, [XXX] became verbally abusive by making hurtful comments about the principal claimant’s appearance. Once her daughter was born, the principal claimant became aware that [XXX] had other lovers and when she attempted to leave, [XXX] struck her, verbally accosted her, raped her and locked her in the apartment for three days;

d) On the third day, [XXX] came home with roses, food and apologies. He threatened the principal claimant that he would take their daughter away from him if she should ever leave;

e) [XXX] had asked his uncle, the couple’s employer, to start paying the principal claimant’s salary directly to him, as she was allegedly too irresponsible to handle the money herself. Thus, the principal claimant became totally dependent on her former partner;

f) In 2004, after being questioned by his uncle about bruises on her face, [XXX] forbade the principal claimant from working outside the home;

g) In 2012 the principal claimant became pregnant again, this time with a son;

h) In [XXX] 2013, while seven months pregnant, her former spouse raped her and beat her, causing her to enter a depressed state and to develop anemia which required hospitalization;

i) In [XXX] 2014, the principal claimant saw a psychologist who diagnosed her with [XXX] and [XXX];

j) In [XXX] of that year she worked up the courage to file a complaint with the Family Welfare Office. [XXX] showed up to a mediation session with a party colleague who convinced the social worker that the principal claimant was delusional. [XXX] later beat the principal claimant once again;

k) In [XXX] 2016, the principal claimant was alerted by her daughter’s teacher that [XXX] was unhappy and uncommunicative. She was taken to therapy where she was diagnosed with [XXX], [XXX] and [XXX] and ordered to attend further clinical intervention;

l) In [XXX] of 2017, [XXX] invited some of his associates over to the house for dinner. One was an unsavory youth nicknamed [XXX] made appalling comments about [XXX]’ s mature appearance, and referred to her as his “princess”. The youth was openly glaring at [XXX] the whole time;

m) In [XXX] of 2017, the principal claimant found her daughter’s diary while cleaning the house. In it were passages that referred to her inability to cope with the family abuse and that she would rather be dead;

n) At the end of that month, the principal claimant went to the Court in Tulua to seek a restraining order against [XXX]. When the official heard his name, he looked mockingly at the principal claimant and told her without evidence nothing could be done;

o) On Tuesday [XXX], 2017 XXXX came home livid because he learned about the judicial complaint. When the principal claimant showed him the psychiatrist’s notes about their daughter, he went crazy and began hitting the principal claimant and threatened to kill her and the doctor if she kept divulging that [XXX] has mental health issues;

p) On Saturday of that same week, [XXX] showed up with three men to the principal claimant’s stepmother’s home. The two ladies were alone at the time. The men flashed their firearms and began insulting them. [XXX] then bragged about his affiliation with the Los Urabeños criminal group and that he was sent by [XXX] to tell her she had 24 hours to return home or die, and if she disappeared, [XXX] promised him “her princess” as a present;

q) The principal claimant’s stepmother managed to record some of the conversation on her phone. The principal claimant then phoned [XXX] and threatened to expose him and his ties to the Urabeños if he did not leave her and her daughter alone;

r) On [XXX], 2017 the principal claimant called [XXX] and told him to provide her with a consent letter via post to her parents’ house, where it was retrieved by a neighbour;

s) The claimants left Colombia on [XXX], 2017 filed their basis of claim forms on March 28, 2018;

NEXUS

[9]       Based on the above facts, I find that the principal claimant was the victim of physical, emotional and sexual abuse by her former spouse. As such, I find that she has a nexus to the Convention by virtue of her membership in a particular social group – women fearing gender­ related persecution. I find that but for her gender, she would not have been subject to the various forms of violence she suffered at the hands of [XXX].

[10]     The minor claimants [XXX] and [XXX] in my view also have a nexus to the Convention as family members of the principal claimant. The effect of the household domestic violence on [XXX] is particularly acute as evidenced by the psychological documentation filed by the principal claimant. However, it is clear that both children have been threatened and face a future serious possibility of persecution as family members of the principal claimant should they return to Colombia.

SUBJECTIVE FEAR

[11]     The principal claimant tried to leave the relationship three times, twice by filing complaints with the authorities. Each attempt was unsuccessful and resulted in future violence and sexual abuse.

[12]     The principal claimant fled to her parents’ house on [XXX], 2017 and remained there until leaving for Canada the next month. She filed for refugee protection in Canada within a reasonable time, while she had lawful status in Canada courtesy of a previously obtained VISA;

[13]     When the domestic violence began to affect her daughter, the principal claimant took steps to address the mental health issues which arose therefrom.

[14]     All of these actions are consistent with a person that fears their spouse and therefore I find that the principal claimant has demonstrated a subjective fear of persecution.

OBJECTIVE BASIS

Documentary Evidence

[15]     Exhibit 4 contains approximately 11 items, 36 pages in total. This documentation includes two psychological reports and one medical report, as well as excerpts from [XXX]’s journal which support the principal claimant’s allegations that [XXX] was abusive to the principal claimant and verbally abusive to the minor female claimant. It also supports the assertion that the abuse took such a toll on [XXX] that she was preparing to commit suicide.

[16]     The principal claimant has also provided photographs5 and website print outs6 which show her spouse at various events with Senate candidate [XXX], Former President Alvaro Uribe and current President Ivan Duque, among others.

Country Documentation

[17]     The National Documentation Package (NDP) for Colombia indicates that domestic violence is so pervasive and normalized in that country, that it has become virtually invisible to authorities and citizens alike.7 Women are unlike to report such violence to the authorities as they fear being stigmatized or re-victimized by state institutions, and as such spousal abuse – and specifically spousal rape – remains a “serious problem” in the country.8

[18]     In considering the totality of the documentary evidence, I find that the principal claimant has established an objective basis for her fear of persecution on a Convention ground, as well as the children’s fears.

STATE PROTECTION

[19]     The principal claimant alleges that Colombia has failed to protect her from her husband to date and should she return to Colombia, the state would be unwilling or unable to provide her and her children with adequate state protection.

[20]     According to the NDP for Colombia9:

According to the 2015 National Survey on Demographics and Health, 76.4 percent of women never sought help in cases of violence committed against them (Colombia 2015, 84). The same source indicates that, in cases where the violence was reported, 40.3 percent were reported at a police station, 37.2 percent at the FGR, 19 percent at a Family Commissary, 7.1 percent at “another institution,” and 2.4 percent at a court (Colombia 2015, 83-84). Of all reported cases by women victims of violence, the aggressor was penalized in 21.1 percent of the cases, the victim was summoned to conciliation in 29.5 percent of the cases, the aggressor was not penalized or did not appear in 28.2 percent of the cases, the aggressor was ordered not to go near the victim in 22.1 percent of the cases, and in 5.7 percent the aggressor was prohibited from going back into the home (Colombia 2015, 84). In 4.7 percent of the cases that were reported, the violence did not stop, and in 2.3 percent it got worse (Colombia 2015, 84).

A report sent to Congress by the President’s High Commissioner for Women’s Equality, regarding the implementation of Law 1257 of 2008, states that, in 2014, the FGN received 74,899 cases of intra-family violence, with charges laid in 10 percent of the cases and a conviction rate of 23 percent (Colombia 26 Jan. 2017). In 2015 the number of cases received was 85,040, with charges laid in 12 percent of the cases and a conviction rate of 24 percent (Colombia 26 Jan. 2017). The same report states that, despite the increase in the rate of charges being laid, that rate remains “very low, ” and the investigation and prosecution of intra-family violence cases remains “insufficient” and the conviction rate “deficient” (Colombia 26 Jan. 2017).

Country Reports 2016 states that, according to women’s groups such as Sisma Mujer, law enforcement response is “generally ineffective” (US 3 Mar. 2017, 37).

[21]     The NDP further states that due to the prevalence of domestic violence throughout the country and a corresponding lack of resources, the state response to such violence is “insufficient”. As such, spousal abusers are able to act with relative “impunity” in Colombia.10

[22]     This information certainly accords with the evidence of the principal claimant with regard to her attempts to obtain protection prior to her coming to Canada.

[23]     This of course does not take into account the profile of the agent of persecution which in my view, only further supports the inference that state protection for this family is not available in Colombia.

[24]     The ties between the political class and the various criminal groups in Colombia are well documented and date as far back as the 1960’s and 70’s.11 The principal claimant alleges that but for the threat delivered to her at her step-mother’s home, she would not have believed that [XXX] had ties to the Urabeños, but that was the threat and she believed it capable of being carried out.

[25]     The National Documentation Package for Colombia (NDP) indicates that the Urabeños are now the dominant criminal band with the “biggest presence in Colombia” and the ability to “interfere  at  the  national  level.”12 The  International  Criminal  Court  describes  the  Urabeños  as highly organized and able to exert effective control over its members.13 The Urabeños operate through a criminal network composed of nodes that “answer to central command,” and are known to use extortion, threats, killings, and other forms of violence including “kidnapping and selective assassination.”14

[26]     On a balance of probabilities, and in light of the claimants’ particular circumstances, I find that there is clear and convincing evidence that the Colombian state would be unable to provide the claimant with adequate protection. The principal claimant provided reliable and trustworthy evidence of her efforts to obtain state protection, and aside from issuing a report and offering to investigate, the Colombian authorities did not provide specific protection measures.

[27]     The NDP indicates that when victims of armed groups complain to Colombian authorities, the state is often unable to offer operationally adequate protection. This is due in part to the “overwhelming caseload” of prosecutors and “inadequate official investigation” which has “made it difficult to address threats, attacks and killings.”15 This is especially the case for those who are not “high profile”16 as the National Protection Unit (UNP) in Colombia focuses on persons “given their position or activities, [who] may be subjected to extraordinary or extreme risk,”17 such as well-known human rights defenders. The “vast majority of victims of criminal groups do not receive protection.”18

[28]     The NDP indicates that authorities have “failed to curb the power of criminal groups” and crimes committed by neo-paramilitary groups are “sometimes committed with the collusion or acquiescence of the security forces.”19 Indeed, neo-paramilitary groups are known to use ties to Colombian officials in order to “avoid prosecution” and Colombian police officers have been seen “meeting with members of criminal groups, including the Urabeños.”20

[29]     I note that Colombian authorities have undertaken efforts to capture members of the Urabeños.21 However, even if the perpetrators are incarcerated, they can continue to “use alliances outside to take revenge.”22 The preponderance of the evidence before me is both clear and convincing and rebuts the presumption of state protection in the claimant’s particular circumstances. I find on a balance of probabilities, that that the Colombian state is unable to provide the claimants with adequate protection from either [XXX] or the Urabeños.

INTERNAL FLIGHT ALTERNATIVE

[30]     I also considered whether a viable Internal Flight Alternative (IFA) exists for the claimants in Barranquilla and Tunja. The former city is [XXX]-hour drive or [XXX] kilometers from her former residence and the latter [XXX]-hour drive or [XXX] kilometers.

[31]     I must consider a two-prong test in order to determine the viability of an IFA location.23 Firstly, I must be satisfied that, on a balance of probabilities, the claimants would not face a serious possibility of persecution or section 97 risk in the proposed IFA. Secondly, I must be satisfied that it would not be unreasonable, in all of the circumstances, including those particular to the claimants, for them to seek refuge there.

[32]     In determining whether [XXX] and the Urabeños have both the means and motivation to locate the claimant in the proposed IFA locations, I have considered the Urabeños area of operation, its ability to track its victims across Colombia, as well as its level of interest in the claimants. I have also considered the profile of the agent of persecution illustrated by the principal claimant in her testimony.

[33]     With respect to [XXX], the principal claimant alleges that due to his involvement with the Centro Democratico party, he could use his “contacts” to locate her throughout Colombia. She further testifies that this could be done via access to government databases that contain biographical information which must be kept updated in order to access education, health care, exercise voting rights, etc.

[34]     I have examined the NDP for Colombia, particularly Item 10.2 which is dedicated to privacy and data security. This document discusses the legal rights Colombians have over their own data and incidents of misuse. I do not find any support in this document for the claimant’s suggestion that [XXX] or his colleagues in the Democratic Party could track the principal claimant throughout Colombia or that they would even have access to any of these databases.

[35]     The Urabeños are not present in Barranquilla or Tunja according to the NDP.24 However, the Urabeños have a national reach and the ability to operate across the country.25 Human Rights Watch notes that “that there have been documented cases of people being tracked down by the Urabeños after fleeing to other parts of the country.”26 The Urabeños as an organization don’t appear to have any interest in the claimants, save and except on the part of “[XXX]” who approached the claimant purportedly on behalf of [XXX].

[36]     Neither the principal claimant nor her family members have heard from the Urabeños since this single incident in [XXX] of 2017. They have not heard from [XXX] since mid-2018. The principal claimant has no information regarding any recent attempts by either party to locate her and the children.

[37]     I find that based on the information in the NDP and that filed by counsel, the Urabeños have the means to locate the claimant throughout Colombia should [XXX] direct them to do so. It does not appear they have a motive to locate the claimants on their own accord, but the [XXX] 17, 2017 incident demonstrates a willingness to intimidate and threaten the principal claimant and her family at the behest of [XXX].

[38]     I therefore find, on a balance of probabilities that a viable IFA does not exist for the claimants in Colombia, including in Barranquilla and Tunja, which is both safe and reasonable for them.

CONCLUSION

[39]     I find that the claimants are all Convention refugees pursuant to s. 96 of IRPA. The principal claimant has demonstrated a serious possibility of persecution on a Convention ground which exists throughout Colombia, as a woman fearing gender-based persecution.

[40]     Her claim is therefore accepted.

[41]     I find that the minor claimants both face a serious possibility of persecution as members of a particular social group – family members of the principal claimant. This possibility exists throughout Colombia, and I find that they too are Convention refugees as per s. 96 of IRPA.

[42]     Their claims are also accepted.

(signed)           David D’Intino

October 29, 2019

1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended
2 Exhibit 2.1
3 Exhibit 4.
4 https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/chairperson-guideline.aspx
5 Exhibit 7.
6 Exhibit 8.
7 Exhibit 3. National Documentation Package for Colombia (May 31, 2019 version) Item 5.4 at pg 1.
8 Ibid.
9 Ibid at pgs 6-7
10 Ibid at pg 8.
11 NDP for Colombia. Item 7.20.
12 Exhibit 3, National Documentation Package (NDP) for Colombia Item 7.2, at p. 5, 13.
13 Exhibit 3 Item 7.15, at p. 3.
14 Exhibit 3 Item 7.2, at p. 12; Item 7.15, at p. 3, 4; Item 7.18, at p. 5.
15 Exhibit 3 Item 7.8, at p. 27; Item 1.7, at p. 19.
16 Exhibit 3 Item 1.7.
17 Exhibit 3, Item 7.3, at p. 1.
18 Exhibit 3, NDP for Colombia Item 7.15, at p. 20.
19 Exhibit 3, NDP for Colombia Item 7.15, at p. 19.
20 Exhibit 3, NDP for Colombia), Item 7.2, at p. 12; Item 7.15, at p. 15.
21 Exhibit 3, NDP for Colombia Item 7.15, at p. 19.
22 Exhibit 3, NDP for Colombia Item 1.7, at p. 33.
23 Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011, paras. 5-6, 14; Rasaratnam v. Canada (MEI), [1992] 1 FC
706, at p. 710.

Categories
All Countries Qatar

2019 RLLR 59

Citation: 2019 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: November 14, 2019
Panel: K. Genjaga
Counsel for the claimant(s): Howard P Eisenberg
Country: Qatar
RPD Number: TB8-07897
ATIP Number: A-2020-01274
ATIP Pages: 000139-000144

DECISION

[1]       MEMBER: We’re back on the record. All parties are present and the claimant’s brother whose joined us today can you translate that?

[2]       INTERPRETER: Yes I’m going to.

[3]       MEMBER: Okay.

[4]       INTERPRETER: Can you repeat just slowly like (inaudible)

[5]       MEMBER: Sure the claimant’s brother has joined us now for the delivery of the decision.

[6]       Okay so during the break counsel has advised that the claimant understands enough English for the purposes of delivering the decision. So we can excuse you after you finish.

[7]       INTERPRETER: Okay, okay thank you.

[8]       MEMBER: Okay. Okay so thank you Madame Interpreter.

[9]       INTERPRETER: You’re welcome I really apologize for being late but that map quest drove me crazy.

[10]     MEMBER: Okay.

[11]     INTERPRETER: My husband is not here I’m going to sponsor him, he’s in Lebanon to same.

[12]     COUNSEL: Okay perfect thank you.

[13]     MEMBER: Thank you.

[14]     INTERPRETER: It was a pleasure.

[15]     MEMBER: Thank you.

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

[17]     The claimant sorry [XXX] claims to be a stateless Palestinian claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[18]     In deciding your claim I have considered your testimony and the documentary evidence filed. In addition I have considered the guidelines on women refugee claimants fearing gender related persecution.

[19]     Your allegations are set out in your basis of claim form which is found in Exhibit number 2. The following is a brief summary of your allegations.

[20]     In 1978 you allege that your father and mother moved to Qatar from Lebanon. In 1981 you allege that you were born in Qatar. In your father or under your father’s sponsorship while you were growing up and attending school in Qatar subsequently your father ended up going, retiring his sponsorship was transferred to another company in Qatar and in your brother in Canada here ended up sponsoring your mother and your father to come to Canada.

[21]     They ended up coming here in 2014. You ended up working at [XXX] for the period from 2010t to the period of 2016 upon which you were also let go. During that particular time you ended up transferring back to your father’s sponsorship for a brief period.

[22]     You ended up going to Lebanon in [XXX] of 2017 to renew your Lebanese travel document and during that time you visited your sister in [XXX] in a Lebanese camp. Subsequently due to the violence that was going on in that particular camp and gunfire you ended up cancelling your trip and ended up going back to Qatar. You tried to find other employment and you had difficulty.

[23]     You ended up coming to Canada on [XXX] 2018 and made an inland claim for refugee protection and subsequently to you being here in Canada your residency permit from Qatar was cancelled due to the fact that you had been out of the country or that particular country for more than six months.

[24]     I find that you are a Convention refugee based on the grounds of membership in a particular social group that being of a female fearing gender related persecution in Qatar for the following reasons.

[25]     Your identity as a stateless Palestinian is established by your testimony and the supporting documentation filed namely a Lebanese travel document issued to stateless Palestinians which appears in Exhibit number 1.

[26]     I find you to be a very credible witness and therefore believe what you have alleged in support of your claim. You have testified in straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[27]     You did not exaggerate or embellish your claim. You also have provided extensive personal documents in Exhibit 7, 8, 9 and 10 to support your life in Qatar and also support your family’s connections to Lebanon.

[28]     These documents include your status in Qatar it also includes your university documents from the [XXX] University. It also includes your secondary education certificates, your birth certificate, your [XXX] (ph) document it also includes your driver’s license, letters of support from your family and therefore the panel believes your story in support of your claim.

[29]     There was one concern the panel had which was your failure to claim in the United States or in other countries prior to 2015, however you have provided a reasonable explanation, that during those periods of time you had a job in Qatar and also you had family still in Qatar and your problems only arose after your family had left Qatar and came to Canada. Therefore the panel did not draw a negative inference as to your credibility.

[30]     Now as for the objective documentary evidence which appears in Exhibit 7b, 7c, 8, 10, 11 and 12 they also support the problem that you may have as a single woman living without a male relatives in Qatar.

[31]     The panel finds that you are a stateless Palestinian you spent all of your life in Qatar even though that you have made visits to Lebanon during your formative years and that you do have some connection to Lebanon as your parents and relatives, your parents were born there.

[32]     Some of your siblings were born there, you also have a sibling who’s still there and even though the panel did not find that as a formal country of habitual residence we proceeded, I don’t want to belabor that point but a lot of time was spent regarding establishing your connection to Lebanon. The panel is making this decision squarely on you would have problems going back to your formal habitual residence of Qatar.

[33]     In Qatar you only have a temporary status, you do not have the same rights as Qatari nationals and you’re not allowed to own your own home or work at certain jobs. You do not have access to public healthcare or education, you had to pay for that on your own and you would also face difficulties the panel finds on a balance of probabilities of finding a job in part because you’re Palestinian and you hold a Lebanese travel document.

[34]     The documentary evidence indicates quite clearly in some of the exhibits that a resident, that you can’t be outside of your country of formal habitual residence Qatar longer than six months. Some people, the documentary evidence also indicates that you might be able to obtain permission to enter but you had to have to obtain it prior to departure.

[35]     You can’t necessarily get it now that you are out of the country. There’s a different set of rules that would apply to you and I believe that particular time period has elapsed. According to the fact that your residence permit has now expired and I do agree that the documentary evidence does support that you can’t enter unless an employer hires you from overseas. So and that’s not the case that we have here today.

[36]     So as a result you can’t return there, that’s one condition that I have to find. You left Qatar in [XXX] 2018 and you can no longer return using your previous residency permit and consequently the documentary evidence also indicates that, that you need to obtain a sponsor.

[37]     Foreign workers have to get the employers consent, have to be able to change jobs. The sponsor controls whether the employee, certain aspects of the employees, existence in that particular country and because you would have an uncertain immigration status in Qatar. Those particular sponsorship rules still apply to you but in any event because you are Palestinian your status in Qatar could only be temporary.

[38]     Now the area that I particularly focused on in this decision is the fact of the documentary evidence which appears in 2.1, 2.2, 2.3, 2.4 and 2.5 pertaining to gender issues. The fact that you would have no sponsor, no male guardian there, I find that cumulatively amounts to discrimination in your particular case as a Palestinian woman.

[39]     2.1 of Exhibit number 6 indicates there’s human rights problems of for women, there’s the guardianship system in place that requires every woman to have a close male relative as her guardian with legal authority to approve whether she works there, files any kind of legal or goes to the police. It also notes that widespread societal exclusion exists for statist institutions in terms of recognizing single women’s rights.

[40]     In addition you may face discrimination in courts and also discrimination under family law because women are not treated as an equal member in society and many laws discriminate against them in Qatar.

[41]     And normally the documentary evidence is also in 5.1 it talks about that husband nor the closest male relative has to set up or has to be involved in the woman’s daily life. I find that this is persecutory in this particular case it would impose important obstacles for your own autonomy to find your own job and would possibly prevent you from renting on your own and it would also limit the range of full activities that you would be able to do on your own in society.

[42]     Therefore I find that there’s more than a mere possibility of treatment amounting to persecution in Qatar in your case. I also find that because these are the laws of the land that you have rebutted the presumption of state protection in this case.

[43]     I also find that there would be no alternative flight alternative in Qatar because this would be the situation that you would face wherever you go and therefore I conclude that you are a Convention refugee and accept you claim.

[44]     In addition I also find that you cannot return to your formal habitual country of residence in this particular case.

[45]     Thank you and welcome to Canada. Thank you I wish to thank you for coming to tell your story and I wish to thank counsel for your participation and everybody have a good afternoon.

———- REASONS CONCLUDED ———-

Categories
All Countries Lebanon

2019 RLLR 57

Citation: 2019 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: November 18, 2019
Panel: Marie-Andrée Lalonde
Counsel for the claimant(s): Chelsea Peterdy
Country: Lebanon 
RPD Number: TB8-07412
ATIP Number: A-2020-01274
ATIP Pages: 000122-000128

REASONS FOR DECISION

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

[2]       The claimant bases her claim on membership in a particular social group: Women Refugee Claimants Fearing Gender-Related Persecution. The case is, thus, assessed according to section 96 of the IRPA.

ALLEGATIONS

[3]       The claimant listed in response to question (2a) of her Basis of Claim (BOC) numerous incidents, where she has been severely beaten by her husband between 1998 and 2017.

[4]       The claimant was forced to marry, [XXX], a man chosen by her aunt when the claimant turned 16 years old. The claimant made objection to this marriage to no avail. She was officially married 5 years later.

[5]       She described in response to question 2(a) of her BOC how she was verbally, emotionally and sexually abused over a period of 20 years of married life with [XXX].

[6]       She was living at her in-law’s house during the first years of her marriage. Members of her in-law’s family were also rude and abusive towards the claimant. She was hit and attacked physically by her sister-in-law and [XXX]’s parents.

[7]       The claimant indicated that she had problems getting pregnant. She was often insulted for this health difficulty. She was beaten and had to be taken to the hospital several times. She was treated at a clinic which was run by [XXX]’ s cousins. She could not make any report to the authorities. All aspects of her life were under the control of the [XXX] family. The worse incidents occurred in 2008, 2010 and 2011 and are fully described in the narrative and its addendum.

[8]       In 2014, the claimant’s sister called for assistance. She had breast cancer. The claimant was given permission to come to Canada to help her sister with her treatment and with her nephew, which needed much attention. During her first visit she overstayed her visa. She was asked to leave Canada.

[9]       During her absence her family had indicated that her husband was told by elders to change his conduct. She returned to Lebanon with her nephew.

[10]     However, soon after the claimant’s return to Algeria, her husband started to beat her up again. The claimant sent her nephew at her parent’s home. After two weeks she went to stay at her parents’ place. Her sister asked her again to return to Canada. The claimant’s brother intervened to obtain permission to leave Algeria from her husband. The claimant obtained permission to leave.

[11]     During that sojourn in Canada, the claimant learned about the possibility of making a refugee protection claim.

[12]     The claimant indicated that she learned from her mother that her husband agreed to divorce her. He would have gone twice to see an imam for the procedure. It is only after the third time that a certificate can be issued. She did not yet receive the divorce certificate. However, she understands that she can make an application for divorce from Canada. She was pleased to hear of this possibility to ensure that she would be fully free from her aggressor who has been abusing her for more than 20 years.

Credibility

[13]     I find that the claimant was credible on all the aspects of her claim. She described the ordeal that she had suffered. The claimant provided, at Exhibit 6, the mental assessment done by Dr. [XXX]. Moreover, personal documents adduced at exhibit 5 also corroborate the situation of women who are living similar domestic situations. Counsel adduced extra documents on the topic, which corroborates the lack of protection for women fearing gender-related persecution in Algeria.

[14]     Considering the quality of her testimony, which was devoid of exaggerations, incoherence or embellishments, the panel finds the claimant credible.

State Protection

[15]     The panel, following the Chairperson’s Guidelines for Refugee Claimants Fearing Gender-Related Persecution, stipulate in that a woman cannot ask protection from a state who is not respecting women’s rights and offering adequate protection to women. Such is the case in Algeria. According to Response to Information Request: Number: LBN104656.FE, Exhibit 3, item 5.2.: Sources report that Lebanese women are victims of discrimination in their country both in law and practice (AI 23 May 2013; U.S. 19 Apr. 2013, 28; Human Rights Watch Jan. 2013, 4). Some sources specifically note that certain provisions of the legislation relating to the status of the person discriminate against women (ibid.; Freedom House 2013; UN 2011, 14-15). These sources also state that such legislation is linked to the religion to which the person belongs (Human Rights Watch Jan. 2013, 4; Freedom House 2013; UN 2011, 14-15). The treatment of women thus varies based on their religious affiliation (ibid.; U.S. 19 Apr. 2013, 28; Freedom House 2013). These sources state that, in general terms, the legislation is such that women are disadvantaged with regard to divorce, child custody and succession (U.S. 19 Apr. 2013, 28; Human Rights Watch Jan. 2013, 4; Freedom House 2013).

[16]     Moreover: Sources note that there are no official statistics on domestic violence in Lebanon (consultant 8 Nov. 2013; independent researcher 29 Oct. 2013; U.S. 19 Apr. 2013, 27). However, according to a report published by the United Nations Population Fund (UNPF), “gender-based violence is prevalent in Lebanon in different forms, including domestic/marital physical, sexual and psychological violence” (UN 2012, 8). According to the Country Reports for 2012, “there was a broad consensus that domestic violence, including spousal abuse, was a serious and widespread problem in the country” (U.S. 19 Apr. 2013, 27). An article published on the website of the international television network TV5 Monde states that [translation] “the project director for KAFA, a Lebanese organization combating violence against women, is of the opinion that domestic violence against women ‘is the most common form of abuse and is not subject to economic or community barriers”‘ (TVS Monde 19 Nov. 2011). In written correspondence sent to the Research Directorate, a gender consultant who conducts research and writes on violence against women in Lebanon, and who taught at Lebanese University (Universite libanaise) until 2008, states that it is [translation] “well known that domestic violence (…) is underreported” in the country (gender consultant 8 Nov. 2013). The author of the TV5 Monde article also notes that [translation] “the phenomenon is more widespread than generally presumed” (19 Nov. 2011).

[17]     Sources report that it is estimated that one woman a month is killed by a family member in Lebanon (gender consultant 8 Nov. 2013; UN 8 Mar. 2012; Nasawiya 27 Feb. 2012).

[18]     Therefore, based on the documentary evidence there is clear and convincing evidence that adequate state protection is not available to the claimant.

[19]     The United States. Department of State. Lebanon. Country Reports on Human Rights Practices for 2018, (Exhibit 3, item 2.1) states the following in its most recent report:

[20]     The law criminalizes domestic violence, but it does not specifically provide protection for women. Despite a law that sets a maximum sentence of 10 years in prison for battery, some religious courts may legally require a battered wife to return to her home despite physical abuse. Foreign domestic workers, usually women, often suffered from mistreatment, abuse, and in some cases rape or conditions akin to slavery. Some police, especially in rural areas, treated domestic violence as a social, rather than criminal, matter.

[21]     NGOs and activists criticized the domestic violence law, claiming that it does not sufficiently protect victims or punish abusers, whom they alleged often received disproportionately light sentences. On January 29, activists gathered in downtown Beirut to protest perceived inaction by the judiciary and security forces to respond to such cases after at least eight women died in domestic violence incidents through January. Examples included a woman whose husband shot her outside their home in front of neighbors following a dispute. On April 25, a judge issued an indictment and called for the death penalty for the husband who had fled to Syria but subsequently returned and surrendered to investigators.

[22]     Women continue to face discrimination under the 15 distinct religion-based personal status laws. Discrimination includes inequality in access to divorce, residence of children after divorce, and property rights. Unlike Lebanese men, Lebanese women cannot pass on their nationality to foreign husbands and children and are subject to discriminatory inheritance laws. Human Rights Watch, January 2018, (item 2.3, P.4)

[23]     The claimant over the years had asked for divorces several times. Each request was ignored. She had no possibility of complaining to the authorities. The claimant felt that it would make things worse.

[24]     In such a country context for women, the claimant has met the burden of proof that the state turns a blind eye on women victim of domestic violence.

IFA

[25]     Documentary evidence regarding the lack of state protection shows that it applies to the whole country, thus, confirms a lack of adequate state protection throughout Lebanon. Under such circumstances, as the State is turning a blind eye on the problems of domestic violence done to women, it is reasonable to find that state protection would not be forthcoming in her case. Therefore, there is no viable internal flight alternative (IFA) for the claimant under these conditions.

Conclusion

[26]     Therefore, after finding that the claimant is credible, the objective country condition reports in evidence and the claimant’s supporting documents (exhibit 4 and 6), the claimant demonstrated objectively that she has more than a mere possibility of being persecuted upon return to Lebanon.

DECISION

[27]     The claim is accepted

(signed)           Marie-Andrée Lalonde

November 18, 2019

Categories
All Countries Bangladesh

2019 RLLR 49

Citation: 2019 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: James Waters
Counsel for the claimant(s): Yasmine Abuzgaya
Country: Bangladesh
RPD Number: TB7-22737
ATIP Number: A-2020-01274
ATIP Pages: 000060-000068

REASONS FOR DECISION

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

[2]       In assessing her claim, I considered Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[3]       After a brief courtship, the claimant entered into an arranged marriage in Bangladesh with a permanent resident of Canada, in [XXX] 2015.3

[4]       Her husband returned to Canada shortly after the marriage, and in [XXX] of 2016, he submitted an undertaking to sponsor the claimant’s spousal application for permanent residence in Canada.

[5]       Her husband returned to Bangladesh to visit her in the spring of 2016. Problems over dowry issues between the respective families surfaced during this visit, escalating from heated arguments to threats of physical violence.

[6]       The claimant alleges that she was verbally, physically and sexually abused by her husband during this visit.

[7]       The spouses attempted to reconcile, and made a trip together to India in [XXX] of 2016. Her husband returned to Canada at the end of [XXX] of 2016.

[8]       The claimant alleges that she was stalked and threatened by her husband’s family and friends after he returned to Canada.

[9]       The claimant arrived in Canada on [XXX], 2016 with a visa authorizing her to enter Canada, and told the immigration officer she wished to reconcile and reside with her sponsor.

[10]     Her husband was notified of her arrival by an immigration official and attended at the airport, where he advised IRCC that he had withdrawn his undertaking to sponsor her and did not want to reconcile and have her reside with him.

[11]     She made her refugee claim inland on November 3, 2017, after being advised that she was in breach of a condition requiring her to reside with her sponsor. The admissibility hearing was cancelled after she made her refugee claim.

IDENTITY

[12]     The national identity of the claimant as a citizen of Bangladesh was established by her oral testimony in the Bengali language, and the supporting documentation filed.4

[13]     The supporting documentation included copies of her valid passport, birth certificate and school records.5 Originals of the birth certificate and school records produced by the claimant were made available to the RPD prior to the hearing.

[14]     In the statutory declaration the claimant’s sponsor alleged that the claimant had filed a falsified birth certificate as part of her application for permanent residence to conceal that she was born on [XXX], 1998, rather than [XXX], 1997.6 A translated copy of a birth certificate showing the claimant’s birthdate as [XXX], 1998 was attached to the statutory declaration.7

[15]     An affidavit of a lawyer at the [XXX] described the online searches performed by that lawyer to confirm that the [XXX], 1997 birth date in the birth certificate produced by the claimant matched that in the online records searched by the affiant.8 The affiant described the similar searches she conducted, unsuccessfully, on the online registry to verify the [XXX], 1998 birthdate indicated in the copy of a birth certificate produced by the sponsor in his statutory declaration.

[16]     Having regard to the evidence submitted the claimant established on a balance of probabilities that she is the person she says she is, and that she was born on [XXX], 1997.9

[17]     There were discrepancies between the claimant’s consistent oral and written testimony, and the inconsistent information in the spousal Sponsorship Questionnaire.10 as to when the couple met. The claimant explained that she had signed blank spousal sponsorship forms and returned them to her sponsor who hired an immigration consultant to fill them in and submit them.

[18]     There was abundant evidence in the form of a marriage certificate, wedding photographs11 as well as the statutory declaration of her sponsor to establish on a balance of probabilities the marriage ceremony and the registration of the marriage.12

[19]     A copy of a certificate of divorce was sent to IRCC by her sponsor, which indicates that her sponsor divorced her effective [XXX], 2017.13

[20]     A copy of a pending application and supporting affidavit to set aside the divorce judgment, based on improper service of the Petition for Divorce, was filed.14

CREDIBILITY

[21]     The standard of proof for assessing evidence as well as credibility is a balance of probabilities that the evidence is, more likely than not, true.15 When a claimant swears to the truth to certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.16 In assessing the credibility of a claimant, the panel is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.

[22]     The claimant’s oral testimony as to the spousal abuse she suffered at the hands of her former husband was generally consistent with that described in her personal narrative17 and the description contained in a psychological assessment report filed.18

[23]     The claimant was confronted with the fact that her husband was not aware of her travel plans. She testified that she had tried to inform her husband, but he had discontinued contact. She hoped to reconcile with him after coming to Canada.

[24]     The claimant testified that while their relationship had broken down before she came to Canada, neither her husband, nor IRCC had informed her that he had withdrawn or wished to withdraw his sponsorship until after she had arrived in Canada.

[25]     A credibility concern explored at the hearing was why the claimant would chose to reconcile in Canada with an abusive spouse who had assaulted and sexually abused her on his previous trip to Bangladesh, and who apparently did not want her to come to Canada.

[26]     The claimant noted cultural and social mores, as well as family pressures in Bangladesh against a woman leaving a spousal relationship.

[27]     In her written submissions claimant’s counsel submitted that women facing domestic and intimate partner abuse chose to return to the relationship for a variety of cultural, religious and financial realities including fears of increased abuse post separation.19

[28]     The claimant’s counsel cited excerpts from the expert opinion letter of [XXX], outlining a number of factors influencing abused woman to stay in an abusive relationship.20 Claimant’s counsel also cited a Human Rights Watch Report that mentioned financial dependency amongst other factors relevant to abused woman in Bangladesh.21

[29]     The claimant testified as to her father being harassed and threatened in Bangladesh over unresolved dowry issues, and the breakdown of the marriage both before and after she came to Canada. This oral and written testimony was supported by a translated excerpt from a diary provided to the police.22

[30]     An affidavit from a relative in Canada, and a notarized statement and letters from family in Bangladesh and Canada supported her oral and written testimony as to her fear of harm from her husband and his family and friends, if she returned to Bangladesh.23

[31]     Having regard to all of the evidence submitted that did not include the oral testimony of her former spouse, the claimant established on a balance of probabilities, the allegations of verbal, physical, sexual and psychological abuse outlined in her narrative.

Objective Basis

[32]     The documentary evidence indicates that domestic violence is rampant in Bangladesh and that it “occurs for many reasons, most often connected to dowry demands.”24

[33]     The documentary evidence indicates that, in Bangladesh, violence within a relationship is generally seen as private matter, and that there is a general acceptance of violence against women and girls.25 Despite a raft of legislation, enforcement remains weak, and the few offenders who are prosecuted receive minor punishments if any at all.26

[34]     Corruption within the police and judicial system was identified in the United States Department of State Report as a general problem preventing fair trials.27 A United Nations Human Rights report on Bangladesh attributes a lack of faith in the court system and the failure to implement the laws as factors in the continued high incidence of acid attacks, rapes and dowry related violence.28

[35]     The claimant’s former spouse lives in Canada. Articles were filed to support the claimant’s fear of an acid attack if she returned to Bangladesh, from her husband’s family, or his associates who had stalked her while she was living in Bangladesh after her husband returned to Canada.29

[36]     The preponderance of the documentary evidence establishes an objective basis for the claim.

[37]     The claimant testified that her former husband is aware of where her family members live in Chittagong. She established a serious possibility of persecution should she return to there. Her nexus is as a member of a particular social group as a single divorced woman who has been subjected to domestic violence.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[38]     An IFA arises when a claimant who has a well-founded fear of persecution in his or her home area of the country is not a Convention refugee because he or she has an internal flight alternative elsewhere in the country.

[39]     The test to be applied in determining whether there is an IFA is two pronged:

The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.30

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 claimant] for [her] to seek refuge there.31

[40]     The Federal Court of Appeal sets a very high threshold for the ‘unreasonableness test’, requiring nothing less than the existence of conditions which would jeopardize the life or safety of the claimant. There must be actual and concrete evidence of such conditions.

[41]     Dhaka was identified as a possible internal flight alternative.

[42]     The claimant is a young divorced woman who was not employed while living in Bangladesh. She testified that she would be unable to get a job or housing in Dhaka. She testified that her father is an elderly man with health problems, who lives with a son in Chittagong, on whom he relies for financial and emotional support. She testified that none of her family members had the financial resources to support her relocation anywhere, never mind an expensive city like Dhaka.

[43]     Her counsel submitted that a divorced / single woman like the claimant cannot realistically relocate within Bangladesh due to three reasons:32

1.         an inability to secure housing;

2.         lack of employment opportunities; and

3.         lack of domestic violence shelters and other social services.

[44]     Counsel buttressed her written submission with references to documentary evidence indicating that:33

1.         divorced woman encounter huge difficulties in accessing housing;

2.         a grim employment situation for single and divorced woman;

3.         single and divorced woman, in general are looked down upon by society;

4.         the limited social services available were difficult to access.

[45]     The claimant established on a balance of probabilities that given the circumstances of single divorced woman in Dhaka, together with the particular circumstances of the claimant, it is not reasonable for her to seek refuge there.

CONCLUSION

[46]     I find that [XXX] is a Convention refugee. I therefore accept her claim.

(signed)             James Waters

April 10, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
3 Exhibit 2, Basis of Claim (BOC).
4 Exhibit 9, Package 1; and Exhibit 10, Package I 0.
5 Exhibit 9, Package 1; at pp 1-12.
6 Exhibit 5, SIRU Part 2, at p. 22, para 2.
7 Ibid, at p. 24.
8 Exhibit 9, Package 1, at pp. 13-19.
9 Ibid.; and Exhibit 10, Package 2.

Categories
All Countries Iran

2019 RLLR 17

Citation: 2019 RLLR 17
Tribunal: Refugee Protection Division
Date of Decision: November 26, 2019
Panel: S. Benda
Counsel for the claimant(s): Adetayo G Akinyemi
Country: Iran
RPD Number: TB8-18215
Associated RPD Number: TB8-18301
ATIP Number: A-2020-01124
ATIP Pages: 000123-000127

DECISION

[1]       MEMBER: We’re back on the record and I have a couple questions I just want to double check. Did your husband ever abuse your daughter? Did your husband ever abuse your daughter?

[2]       CLAIMANT: No he hasn’t done anything with my daughter.

[3]       MEMBER: So your fears for your daughter is strictly an ultraorthodox family would raise her if she went back?

[4]       CLAIMANT: I don’t want my daughter to experience the same type of life that I experienced.

[5]       MEMBER: Counsel any comments?

[6]       COUNSEL: No.

[7]       MEMBER: If for the sake of argument I found the child not a refugee what would your options be?

[8]       COUNSEL: Well if you do do that then obviously her mother would then apply to ultimately still get there.

[9]       MEMBER: That’s right.

[10]     COUNSEL: Yeah.

[11]     MEMBER: Alright I’m going to do a decision, I’m going to do it very quickly, make it (inaudible).

[12]     Alright this is the decision for the following claimants [XXX] TB8-18215 the mother and [XXX] TB8-18301 the minor. You are claiming to be citizens of lran and are claiming refugee protection pursuant to Sections 6 and 97 of the Immigration and Refugee Protection Act.

[13]     The panel finds that the claimant’s face serious possibility of persecution on the grounds of particular social group to victims of domestic abuse or gender violence or women’s discriminatory moves against women making you both Convention refugees.

ALLEGATIONS:

[14]     The principal claimant alleges that they are citizens of lran, the principal claimant alleges that if the claimant’s should return Iran they will suffer persecution by the state due to being a member of a particular social group as women fleeing gender related violence or discrimination against women.

IDENTITY:

[15]     The claimant’s personal identity and citizenships as citizens of Iran are accepted on a balance of probabilities. The finding is based on your testimony and the supporting documentation namely Exhibit 1 the passports and the national identity documents.

NEXUS:

[16]     The panel finds that there is a link between what the claimant’s fear state persecution and gender violence, gender discrimination and one of the five convention grounds namely a particular social group and therefore the group assessed the claims under Section 96.

CREDIBILITY AND FINDINGS OF FACT:

[17]     The sworn evidence of the claimant is presumed true unless there’s a valid reason to doubt the veracity of the basis of claim form. Since the claim involves allegations regarding gender related persecution the panel considered the chair person’s guidelines on women refugees fearing gender related persecution.

[18]     The guidelines assist in assessing the key evidentiary elements in determining the harm and behaviour of women facing domestic violence. The panel found the principal claimant to be a credible witness and the panel therefore believes what you have alleged in your oral testimony and in your basis of claim form.

[19]     You especially face gender related violence in an escalating amount and had no state protection and indeed later your husband accused you of adultery a stoning offence.

[20]     The claimant presented as a candid honest and forthright witness in particular in oral evidence the claimant waves her dowry(ph) rights to secure permission to leave her country.

[21]     Dowry(ph) rights are the obligations of the husband to pay to the wife a certain amount of money to ensure the quick pro quo for the waiver it was witnessed by two individuals and the exchange of promises the quick pro quo was reduced into writing and registered.

[22]     The husband about a month later changed his mind and revoked the permission to remove the child from the country, the claimant retained a lawyer and sued and the husband withdrew the objection and consequently they were both able to leave.

[23]     None of these details were in the basis of claim forms as it was not relevant but such detail and plausibility buttress the claims of their testimony. Furthermore the documentary evidence especially Exhibit 5 also supported the oral testimony.

THE FINDINGS OF FACT:

[24]     The panel finds for the following facts 1.) the principal claimant is a woman, born Muslim and now an atheist, refuses to wear a Hijab, was repeatedly beaten and raped by her husband for her religious behaviour and sexual refusals, her husband had slandered her by accusing her of adultery, adultery is an offence punishable by stoning in Iran.

[25]     In the absence of the mother the minor claimant would be handed over to the (inaudible) side of the family which is (inaudible) orthodox dismissive of women, would no doubt repeatedly remind the daughter that her mother was a whore and an apostate and raised in a society where women for cultural and religious reasons are denied full human rights and the right to choose.

[26]     The crux of the claim is the claimant’s social group namely women fearing gender related violence and lack of human rights for any women resulting in forced adherence to religious tenets and attendant punishments ecclesiastic offences such as adultery.

[27]     The panel therefore firstly finds that the claimant’s subjective fear of harm is established by her credible testimony and the panel believes what she has alleged. Your social membership as a woman in a gender, subject to gender violence without state protection will lead to your persecution and imprisonment as well as the accusation of adultery.

[28]     Secondly there’s an objective basis for the claimant’s fear based on the fact that women suffer imprisonment, lashes and death for ecclesiastic offences and domestic violence is not deemed criminal.

[29]     In support of this and the statement that Iran is an authoritarian theocracy I quote from the national data package the NDP 1.7 Home Office report, 1.9 Adultery, 1.23 Domestic violence, 5.1 Iranian women annual report, 5.3 Violence against women, 5.9 Attacks on women sexual and reproductive rights, 5.11 Women, children LGB and disabled moral crimes.

[30]     I also note that atheist is subject to the death penalty here I quote Exhibit 5 Pages 57 to 74. Consequently the panel finds that together there’s a well founded fear of persecution against both claimant’s.

STATE PROTECTION:

[31]     Both the state and the husband and his family here are the agents of harm, the state with respect to the allegations of adultery, the husband for domestic abuse. In the ladder instance there’s no protection for women suffering from domestic violence. In the former instance the state enforces religious tenets on women concerning belief, dress and punishment including capital punishment.

[32]     This is a matter of not of mere rogue agents or geographically restricted actions the persecution is throughout the state, state protection is therefore not feasible.

[33]     The NDP coupled to the evidence adduced provides clear and convincing evidence that rebuts the presumption of adequate state protection. Consequently the panel finds that there is no state protection for the claimants.

INTERNAL FLIGHT ALTERNATIVE:

[34]     The panel has also considered whether a viable internal flight alternative exists for you. The claimant must face a serious possibility of persecution in all parts of the state; the state poses the threat to the claimant with respect to the adultery charges.

[35]     There is no safe location for women anywhere in Iran. Therefore there is no viable IFA.

CONCLUSION:

[36]     Based on the totality of the of the evidence the panel finds that both claimant’s face a serious possibility of persecution in Iran due to membership in a social group be it gender related violence, be it denial of human rights to women.

[37]     Consequently the panel finds that the claimant’s both the mother and child to be Convention refugees and the panel accepts your claims.

[38]     Thank you.

Categories
All Countries Haiti

2019 RLLR 4

Citation: 2019 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: July 4, 2019
Panel: Nicole Ginsberg
Counsel for the claimant(s): Hubert Guay
Country: Haiti
RPD Number: MB7-18975
Associated RPD Numbers: MB7-19054
ATIP Number: A-2020-01124
ATIP Pages: 000033-000042

REASONS FOR DECISION

INTRODUCTION

[1]       The principal claimant, [XXX], and her son, the minor claimant, [XXX], request protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The principal claimant was appointed as the designated representative for the minor claimant. The claimant submitted into evidence a letter from the father of the minor claimant consenting to the minor claimant being in Canada with the principal claimant.2

[3]       The hearing was adjourned for the receipt of certain documents, which the claimant’s counsel submitted following the hearing.3

[4]       In its decision, the panel has taken into account Chairperson’s Guidelines number 4 on Women Refugee Claimants Fearing Gender-Related Persecution.4

ALLEGATIONS

[5]       The allegations are contained in the claimants’ Basis of Claim (BOC) forms,5 and are summarized as follows:

[6]       The principal claimant is a citizen of Haiti. The minor claimant is a citizen of the United States.

[7]       The principal claimant alleges that her father, [XXX], is a [XXX], [XXX] and [XXX] activist in Haiti. In particular, he works for the [XXX]-based organization, [XXX], providing [XXX] in Haiti, in order to increase the public’s engagement on [XXX] issues and improve conditions for people living in Haiti.

[8]       The principal claimant alleges that, as a result of her father’s work, she and her siblings and her father were subjected to intimidation and violence by those opposed to his work.

[9]       In [XXX] 2010, two bandits broke into the principal claimant’s home and beat and sexually assaulted her. The bandits told her that the attack was intended as a message to her father to stop doing his [XXX] work. She did not report the incident to police, and fled to the United States within days of the attack.

[10]     The principal claimant lived in the United States, where for a period of time she had temporary protected status. The minor claimant was born in the United States in 2015. His father remains in the United States. On [XXX], 2017, the claimants came to Canada and made their refugee claims.

[11]     The principal claimant has another child, born in the United States in 2011, who continues to live in the United States with his father and is not included in this claim.

DETERMINATION

[12]     The panel has considered all of the evidence and finds that the principal claimant has established that she faces a serious possibility of persecution in Haiti on the basis of her membership in a particular social group, as a woman fearing gender-related violence in Haiti.

[13]     The panel finds that the minor claimant has not established that he faces a serious possibility of persecution in the United States or that, on a balance of probabilities, he faces a danger of torture or a risk to life or a risk of cruel and unusual punishment in the United States.

ANALYSIS

Identity

[14]     The claimants’ identities are established on a balance of probabilities by their respective passports, certified copies of which were filed in evidence.6

United States-Born Minor Claimant

[15]     The principal claimant did not allege any particular fear for her United States-born son in the United States. She testified that she has no one to care for her son if he was to stay in the United States without her. While the panel acknowledges that family separation is not often a desirable situation, the panel also notes that family separation is not contemplated by either section 96 or subsection 97(1) of the IRPA.7

[16]     The panel finds the claimants have not established that the minor claimant faces a serious possibility of persecution in the United States on a Convention ground. The panel also finds that the claimants have not established, on a balance of probabilities, that the minor claimant faces a danger of torture or a risk to life, or a risk of cruel and unusual treatment or punishment, if he was to return to the United States. As such, he is not a Convention refugee under section 96 or a person in need of protection under subsection 97(1) of the IRPA.

[17]     Accordingly, the analysis below is in respect of the principal claimant only.

Nexus

[18]     For the principal claimant, the allegations establish a nexus to the Convention ground of membership in the particular social group of women fearing gender-related persecution. Thus, her claim has been analyzed pursuant to section 96 of the IRPA.

Credibility

[19]     The panel finds the principal claimant to be credible as to the key allegations of her claim. Her testimony was detailed, spontaneous and straightforward. She testified credibly with respect to her father’s [XXX] work in Haiti. Specifically, she explained that he is a vocal advocate for the improvement of the socio-economic and other living conditions of the people of Haiti, and is known to vocally criticize the government, no matter which party is in power, for its lack of attention to certain matters. She provided as an example her father’s criticism of the government’s response to the earthquake at the time she was living in Haiti. She also testified credibly about her father’s continued [XXX] work in Haiti, which she believes would continue to put her at risk of being targeted.

[20]     The principal claimant testified credibly with respect to her own experiences in Haiti as a direct result of her father’s work. In [XXX] 2010, after having helped her father with a [XXX] campaign, she was followed home from the market by unknown men. She also testified credibly with respect to the sexual assault she experienced in 2010, in which her aggressors explicitly instructed her to send a message to her father to cease his [XXX] work.

[21]     The principal claimant did not try to embellish or exaggerate her allegations during her testimony. She explained that she was not aware of many details about her father’s work because he did not talk about his work; she was a child when she lived in Haiti, and she moved in with her father only when she was thirteen years of age. Until that time, she had been living with her grandmother. In addition, she explained that her father did not elaborate on the threats he himself received as a result of his work, because he did not want to alarm his children. Nor is the principal claimant aware of details about threats he is receiving in Haiti to this day as a [XXX] advocate. She explained that she harbours resentment toward him for the dangers she faced, and is not particularly close with him as a result.

[22]     In addition, the principal claimant testified that she does not know precisely who her alleged agents of persecution are, just that they are people who are opposed to her father’s stance on [XXX] in Haiti. The panel finds her explanations in all of these matters to be reasonable, particularly considering her age when she left Haiti and the circumstances of the threats she faced, and finds that these matters do not detract from the principal claimant’s credibility generally.

[23]     Moreover, there were no relevant contradictions, inconsistencies or omissions between the principal claimant’s BOC, the adult claimants’ testimonies at the hearing, and the documentary evidence on file that were not reasonably explained.

[24]     In support of her claim, the principal claimant submitted an online article about her father and his [XXX] work in Haiti, for the organization, [XXX].8 In addition, the claimant submitted a statement from her father as to the difficulties faced by the principal claimant in Haiti as a result of his stance on [XXX].9

Objective Basis

[25]     The principal claimant’s allegations in so far as her father’s work as an activist in Haiti are supported by the objective documentary evidence concerning the dire security situation in Haiti and the prevalence of politically-motivated violence in  Haiti.10 The objective documentary evidence also discusses the importance of vengeance as a motivator for violence in Haiti, including politically-motivated violence and violence against activists.11 Moreover, the evidence  indicates that, “in cases of political revenge, if those seeking it are serious, if they lose track of someone, they attack the family.”12

[26]     The objective documentary evidence is corroborative of the risks and vulnerabilities facing women in Haiti, specifically those who are heads of households, absent a male protector. The principal claimant is a single mother, and would not have anyone to live with if she was to return to Haiti. Her father, who remains in Haiti, continues in his activism work. However, living with her father would not be a viable prospect as her connection to her father is the very reason for the violence she experienced in Haiti. As such, the panel finds that she does not, on a balance of probabilities, have a male protector in Haiti.

[27]     The documentary evidence indicates that violence against women, including sexual violence, is widespread, a chronic and systemic problem, and is part of a culture of discrimination.13 The documentary evidence also indicates that violence against women and girls has “steadily increased” since 2009.14 Women who head their own households without the presence of a male protector face particular obstacles as regards their security, and also face discrimination in employment and provision of housing.15

[28]     In consideration of the foregoing, the panel finds that the principal claimant has established, on a balance of probabilities, that her father was and continues to be a vocal [XXX] advocate in Haiti and that she experienced sexual violence in Haiti as a direct result of her father’s work. As such, the panel finds that the behavior of the principal claimant is consistent with a subjective fear in Haiti, and that her fear is objectively well-founded.

State Protection

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

[30]     The principal claimant did not report her sexual assault to police in 2010. She was a teenager when it occurred, and she fled the country days later to join her mother who was living in the United States.

[31]     The objective documentary evidence refers to the ineffectiveness and corrupt nature of the police in Haiti, as well as the involvement of Haitian police in human rights violations.16 A Response to Information Request in evidence indicates that in its 2014 report on Haiti, Human Rights Watch stated that “the weak capacity of the Haitian National Police contributes to overall insecurity in the country.”17 This research document also indicates that the police force is “not yet able  to  protect  most  of  the  citizens.”18 The  research  also  indicates  that  there  is  inadequate protection for targets of acts of revenge in Haiti.19 Moreover, the objective documentary evidence points to a lack of protection for fundamental civil rights in the country, due to the weakness of the legal system, such that it is nearly impossible to call on judiciary channels due to corruption and impunity at all levels of the public administration in Haiti.20

[32]     Women who are the victims of gender-based violence in Haiti, face particular challenges in obtaining state protection. The objective documentary evidence indicates that women are generally reluctant to seek help from the police and to report sexual abuse due to factors such as fear of discrimination, retaliation, stigmatization, the inability of the government to effectively respond to complaints or allegations, and fear of abuse or discriminatory treatment at the hands of police in Haiti.21 Despite the fact that legislation was introduced to enhance protection for women facing gender-based violence, the evidence indicates that the government “lacks the capacity to eradicate violence and discrimination against women [and] girls”.22

[33]     Given the evidence, the panel finds, on a balance of probabilities, that if she were to seek it, adequate protection would not be provided to the principal claimant in Haiti. Furthermore, the jurisprudence is clear that the claimant is not required to risk her life seeking inadequate protection merely to demonstrate its ineffectiveness.23

Internal Flight Alternative (IFA)

[34]     The panel suggested Port de Paix and Cap Haiïtien as potential internal flight alternatives, but finds that the principal claimant does not have a viable IFA in either location.

[35]     The panel concludes that the alleged agents of persecution have the means and motivation to find and harm the principal claimant anywhere in Haiti. The principal claimant provided a credible explanation for the motivation of the bandits to harm her, in connection with her father’s work. Moreover, her father continues to live in Haiti and continues in his advocacy work. Furthermore, the panel has canvassed above the prevalence of politically-motivated violence in Haiti in the objective documentary evidence.

[36]     The claimant testified as to the particular risks to which she would be vulnerable anywhere in Haiti, as a woman, particularly a woman with two children and no male protector, as discussed above. The panel finds, on a balance of probabilities, that the principal claimant would not have the effective protection of a male figure if she were to return to Haiti, which enhances her risk of persecution or harm in the IFA locations, on the basis of her gender.

[37]     In addition, the panel points out the absence of state protection anywhere in Haiti, also discussed above.

[38]     Accordingly, the panel finds that the principal claimant has demonstrated, on a balance of probabilities, that the agents of persecution have the means and the motivation to harm her should she return to Haiti and establish herself in the IFA locations. As such, the panel finds that the possibility of an IFA fails on the first prong.

DECISION

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

[40]     The minor claimant, [XXX], has not established a serious possibility of persecution on a Convention ground under section 96 of the IRPA, or that, on a balance of probabilities, he would be personally subjected to a risk within the meaning of subsection 97(1) of the IRPA, in the United States. Accordingly, his claim is rejected.

(signed)           Nicole Ginsberg

1 July 4, 2019Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Document 4 – Exhibit D-2: Birth Certificate of [XXX], attaching letter from [XXX].
3 Document 6 – Letter from [XXX], attaching birth certificate of principal claimant.
4 Chairperson’s Guideline 4 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996
5 Document 2 – Basis of Claim (BOC) forms.
6 Document 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC).
7 Varga v. Canada, 2006 FCA 394, paras. 9-l0; X(Re), 2017 CanLII 142905 (CA IRB), para 46.
8 Document 4, Exhibit D-1: News article on [XXX]: https://[XXX]
9 Document 6 : Letter of XXXX XXXX.
10 Document 3 – NDP, Haiti, 29 March 2019, tab 7.1: Response to Information Request, HTI106116.FE, Immigration and Refugee Board of Canada, 19 June 2018. Document 3 – NDP, Haiti, 29 March 2019, tab 7.2: Haïli: La situation sécuritaire, France, Office français de protection des réfugiés et apatrides, 29 August 2016. Document 3 – NDP, Haiti, 29 March 2019, tab 7.4: Haiti, 2017 Crime and Safety Report, United States, Overseas Security Advisory Council, 26 April 2017. Document 3 – NDP, Haiti, 29 March 2019, tab 4.17: Haiti’s Unrepresentative Democracy: Exclusion and Discouragement in the November 20, 2016, Elections, National Lawyers Guild, International Association of Democratic Lawyers, February 2017.
11 Document 3 – NDP, Haiti, 29 March 2019, tab 7.6: Response to Information Request, HTI1 06117.FE, Immigration and Refugee Board of Canada, 3 July 2018.
12 Ibid.
13 Document 3 -NDP, Haiti, 29 March 2019, tab 5.3: Response to Information Request, HTI105161.FE. Immigration and Refugee Board of Canada, 15 December 2016. Document 3 – NDP, Haiti, 29 March 2019, tab 5.5: Against Their Will: Sexual and Gender Based Violence Against Young People in Haiti. Doctors Without Borders, July 2017. Document 3 – NDP, Haiti, 29 March 2019, tab 5.9: Violence against Women, Trafficking, Prostitution, and Exploitation by UN Peacekeepers, Bureau des Avocats Internationaux et al., 22 January 2016. Document 3 – NDP, Tab 5.4: Response to Information Request, HTI105995.FE, Immigration and Refugee Board of Canada, 17 October 2017.
14 Supra, note 13. NDP, Haiti, 29 March 2019, tab 5.3.
15 Supra, note 13, NDP, Haiti, 29 March 2019, tab 5.4.
16 Document 3 – NDP, Haiti, 29 March 2019, tab 10.2: Response to Information Request, HTI105163.FE, Immigration and Refugee Board of Canada, 12 June 2015.
17 Ibid.
18 Ibid.
19 Ibid.
20 Document 3 – NDP, Haiti, 29 March 2019, tab 4.6: Political Transformation, Transformation Index 2018 Country Report: Haiti, Bertelsmann Stiftung, 2018.
21 Document 3 – NDP, Haiti, 29 March 2019, tab 5.1: Haiti. Social Institutions and Gender Index 2014, Organisation for Economic Co-operation and Development.
22 Ibid.
23 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.