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All Countries India

2022 RLLR 21

Citation: 2022 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: July 27, 2022
Panel: Alannah Hatch
Counsel for the Claimant(s): Gaurav Sharma
Country: India
RPD Number: VC2-00904
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division in the claims of XXXX XXXX (the “principal claimant”), XXXX XXXX (the “associate claimant”) and XXXX XXXX (the “minor claimant”).    The claimants are citizens of India and are seeking refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]       The principal claimant was appointed the Designated Representative for the minor claimant at the outset of the hearing.

ALLEGATIONS

[3]       The details of the claimants’ allegations are fully set out in the Basis of Claim (BOC) forms and were supplemented by a BOC addendum and oral testimony.[1] In summary, the claimants fear persecution in India from goons associated with the Congress political party because the principal claimant is a supporter of the XXXX XXXX XXXX XXXX XXXX political party.  In addition, the claimants fear the police because they have accused the principal claimant of financially supporting terrorists and because they believe the police work at the behest of the Congress party.

DETERMINATION

[4]       I find that the claimants are Convention refugees as they have a well-founded fear of persecution for at least one Convention ground, namely membership in a particular social group, as the claimants are members of the “Backward Caste“ XXXX, also known as Dalits.   I therefore have not assessed the claimants’ allegations regarding their fears of Congress party goons or the police.

ANALYSIS

Identity

[5]       The Claimants’ identities as nationals of India are established on a balance of probabilities by the sworn statements in their BOC forms and the copies of their Republic of India passports.[2]

Nexus

[6]       I find that there is a nexus between the claimants’ allegations and the Convention ground of membership in a particular social group because the claimants are members of the XXXX Caste, or Dalits.

Credibility

[7]       The Federal Court has held in Maldonado that when a claimant swears to the truth of certain allegations, it creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.[3] The presumption of truthfulness does not apply to inferences or speculation.

[8]       In this case, I have no reason to doubt the truthfulness of the claimants.  The principal claimant testified in a straightforward manner and gave detailed answers to my questions about how he was treated as a Dalit in his village of XXXX, Punjab.  The principal claimant provided spontaneous testimony about Dalits being forbidden to build a sports field in XXXX solely because they were Dalit, and how Dalits were not allowed to mingle with others in the community during celebrations because they were Dalit.  Both the associate claimant and principal claimant testified about how they were treated at school due to being Dalit.    The associate claimant testified other students refused to play with her and she was treated differently by teachers because she was Dalit.    In addition, the claimants provided corroborating evidence including a “Backward Caste Certificate for the principal claimant’s father, indicating he is from the XXXX XXXX.[4]

[9]       I find that the claimants have established on a balance of probabilities that they are Dalits.  I asked the principal claimant why he did not have a Certificate in his own name, and he testified that they issued only one certificate for the family, and that both of his parents were of the XXXX XXXX.   The associate claimant testified she did not have a certificate; however, I accept on a balance of probabilities that she is of the same XXXX XXXX based on her credible testimony.

Well-Founded Fear of Persecution and Risk of Harm

[10]     I find that the claimants’ subjective fear is objectively well-founded.

[11]     Regarding Dalits, Minority Rights Group International states the following:

Amidst India’s cultural traditions is a rigid caste structure, a continuing symbol of identification and social stratification. 16.6 per cent of the total population of India consists of the scheduled castes which includes ‘Dalits’ also known as Harijans, or ‘Untouchables’. The Indian Constitution requires the government to define a list or schedule of the lowest castes in need of compensatory programmes…

Dalits in rural areas suffer from entrenched caste discrimination, including ‘untouchability’, violence and harassment. Violence against Dalits is widespread, driven by the persistent effects of India’s caste system and the lack of justice for victims.

The constitutionally guaranteed affirmative action policies have had some positive impact in increasing the representation of Dalits in educational institutions, governmental jobs and elected positions. Notwithstanding this improvement, Dalits continue to remain the most underprivileged class of Indian society: the stigma they face remains evident to this day. Dalits in general continue to survive under inhumane, degrading conditions.[5]

[12]     The International Dalit Solidarity Network states:

[u]ntouchability practices in India remain widespread in both urban and rural settings. These include dominant castes not touching Dalits, not letting them use the same mugs, utensils etc., not entering Dalit houses, not allowing their children to play with Dalits or to be in a relationship with a Dalit. There are thousands of variations of untouchability practices and the severity and prevalence vary depending on location.[6]

[13]     The Navsarjan Trust also states that untouchability “is present in nearly every sphere of life and practiced in an infinite number of forms”.  Examples include Dalits being refused entry to barber shops or temples, being forbidden to use wells, and Dalit children may be asked to clean the toilets and to eat separately at schools.[7]

[14]     The treatment of Dalits has not improved in recent years.  The 2015 National Dalit Movement for Justice report[8] provides a list of “new forms of atrocities” against Dalits that were proposed additions to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (“POA Act”). At the time, the POA Act had 22 offences listed as atrocities

which include forcing to drink or eat any inedible or obnoxious substance; dumping excreta; parading naked; occupying or cultivating any SC’s land; forcing or intimidating to vote or to vote to a particular candidate; instituting false, malicious or vexatious suit; insulting or intimidating to humiliate in any place within public view; exploiting a woman sexually; and mischief by fire or any explosive substance to cause damage to any SC’s property; etc.

[15]     The National Dalit Movement for Justice report, however, states:

numerous new forms of caste-based atrocities have been identified in …(and) perpetrated in both rural and urban regions. These forms are widespread and systemic in nature. The POA Amendments Bill introduced in the Lok Sabha in 2014 and pending before the Parliament has identified and included these additional forms of atrocities.

[16]     The new forms of atrocities listed in the POA Amendments Bill are extensive and numerous and divided into five categories.  As an example, the first category of proposed amendments to the POA Act are offences related to assault on dignity such as:

putting inedible or obnoxious substance into the mouth; garlanding with footwear, removing clothes, tonsuring of head, removing moustaches, painting face or body; compelling to dispose or carry human or animal carcasses, compelling to dig graves; manual scavenging; disrespecting any late persons held in high esteem to SCs/STs; attempting to promote feelings of enmity and hatred against SCs/ STs; and imposing social or economic boycott.

[17]     As the Navsarjan Trust, supra, succinctly relates, the objective evidence unanimously demonstrates that untouchability is “practiced in an infinite number of forms” which are rightfully labelled ‘atrocious’.

[18]     I find Dalits face systemic serious violations of their fundamental rights that amount to persecution.  I find the claimants have established on a balance of probabilities that they have experienced discrimination since childhood as Dalits.  I find there is a serious possibility the claimants will face continued discrimination as Dalits if they were to return to India and that the treatment cumulatively amounts to persecution.

State Protection

[19]     There is a presumption that, unless in complete breakdown, states are capable of protecting their citizens. I find that that the claimants have rebutted the presumption of state protection and I find there is no adequate state protection for the claimants.

[20]     The Australian DFAT, quoted in the UK Home Office Country Policy and Information Note, reports:

Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.[9]

[21]     In the most recent “Status of Policing in India Report”, 32 percent of those interviewed in conflict-affected regions believed the police would favour an upper caste person in a criminal investigation over a Dalit.[10]

[22]     The Australian DFAT country report indicates: 

corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors…Since 2014, India has consistently ranked low on the (World Justice Project Rule of Law) indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78th place in 2018).[11]

[23]     I find that the claimants have established on a balance of probabilities that adequate state protection for them in India is not available because the police, judiciary and other government agencies are reported to be not only corrupt, but also biased against Dalits.

Internal Flight Alternative (IFA)

[24]     The Federal Court of Appeal in Rasaratnam,[12] developed a two-prong test when assessing IFA, which entails a consideration of two matters: (1) whether there is a serious possibility of the claimant being persecuted or, on the balance of probabilities, in danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the IFA and (2) whether conditions in the IFA are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.  The onus is on the claimants to demonstrate they do not have a viable IFA. 

[25]     Based on the evidence before me, I find that the claimants would face a serious possibility of persecution throughout India and there is no IFA available to them.

[26]     The persecution suffered by Dalits is widespread and systematic and occurs in both rural and urban areas. I note that the objective evidence, reviewed above, regarding the persecutory treatment of Dalits in India is not location specific.  While cities provide some limited level of anonymity, social networks would be essential in finding employment and housing in urban areas.[13] Those without social networks would face high discrimination in jobs and housing and often end up at the bottom of the social hierarchy.  Although Dalits are reported to have increasing opportunities in cities, including a system of quotas to ensure employment of Dalits in certain sectors such as educational institutions and the federal public service, the quota system can generate hostility towards Dalits.[14] “Severe inequalities persist, however, with Dalits making up a large proportion of those engaged in the urban informal labour sector as domestic workers, rickshaw-pullers, street vendors and other poorly paid sectors”.[15]

[27]     There is no evidence before me to indicate that the claimants have a social network in the proposed IFAs of Delhi or Mumbai.

[28]     I find that the claimants face a serious possibility of persecution in either Delhi or Mumbai because they are Dalits and as such the IFA fails on the first prong of the Rasaratnam test. I find that there is no IFA available to the claimants.

CONCLUSION

[29]     When I consider the claimants’ personal profiles, the objective country evidence, the lack of state protection and lack of a viable IFA, I find that the claimants are Convention refugees and I accept their claims.

(signed) Alannah Hatch

July 27, 2022


 

[1] Exhibits 2.1, 2.2, 2.3 and 4.

 

[2] Exhibit 1.

 

[3] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302

 

[4] Exhibit 5.

 

[5] National Documentation Package, India, 30 June 2022, tab 13.10: ​India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.

 

[6] National Documentation Package, India, 30 June 2022, tab 13.4: ​Treatment of Dalits by society and authorities; availability of state protection (2016-January 2020). Immigration and Refugee Board of Canada. 9 January 2020. IND106277.E.

 

[7] Ibid.

 

[8] National Documentation Package, India, 30 June 2022, tab 13.6: ​Chapter 2: Nature and extent of caste based atrocities. Chapter 3: Response of enforcement authorities: Police. Chapter 4: Response of the Judiciary. Equity Watch 2015: Access to Justice for Dalits in India. Swadhikar – National Dalit Movement for Justice. Nalori Dhammei Chakma. 2015.

[9] National Documentation Package, India, 30 June 2022, tab 10.10: ​Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019.

 

[10] National Documentation Package, India, 30 June 2022, tab 10.11: ​Status of Policing in India Report, Volume I 2020-2021: Policing in Conflict-Affected Regions. Common Cause; Centre for the Study of Developing Societies. 2021.

 

[11] National Documentation Package, India, 30 June 2022, tab 1.5: ​DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020.

 

[12] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

 

[13] National Documentation Package, India, 30 June 2022, tab 13.4: ​Treatment of Dalits by society and authorities; availability of state protection (2016-January 2020). Immigration and Refugee Board of Canada. 9 January 2020. IND106277.E.

 

[14] Ibid.

 

[15] National Documentation Package, India, 30 June 2022, tab 13.10: ​India. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2020.

Categories
All Countries Ghana

2022 RLLR 15

Citation: 2022 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: January 13, 2022
Panel: Osehise L. Odigie
Counsel for the Claimant(s): Alastair Clarke
Country: Ghana
RPD Number: VC1-06738
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A

REASONS FOR DECISION

INTRODUCTION

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

ALLEGATIONS

[2]       The specifics of the claim are stated in the claimant Basis of Claim (BOC) forms[2] and narrative in evidence.[3] The claimant alleges that he will be persecuted if he returns to Ghana because his stepmothers and half siblings have refused to share the inheritance with him and have accused him of witchcraft. The claimant was born in XXXX, Ashanti region of Ghana and grew up after his mother’s death with his father. He attended elementary school and thereafter took up farming with his father. The claimant’s mother was the 3rd wife to his father and, she died 3 months after Claimant’s birth. In XXXX 2015, claimants father died, and this led to a property dispute.

[3]       The claimant left Ghana in XXXX 2015 after series of incidents instigated by his half siblings. The crop in his farm was cut down by his half siblings and he was threatened that he will be killed by his siblings.  The claimant traveled from Takoradi ports with the help of his friend’s father to Panama, he then traveled from Panama to the United States of America (US).  The claimant arrived in the U.S. in XXXX of 2016 through California from Mexico and was detained till XXXX 2016. The claimant made an unsuccessful asylum claim in the U.S. The claimant arrived in Canada in XXXX of 2019. 

DETERMINATION

[4]       The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act.

ANALYSIS

Identity

[5]       Identity is a determinative issue, in particular who the claimant is and what the country of nationality is. The claimant testified about his place, his religion and language. The claimant submitted copies documents as evidence of his identity which includes

  • Copy of his birth certificate obtained in March 2017,
  • Copy of marriage certificate for marriage held in Winnipeg, Manitoba on April 18, 2021,
  • Copy of child’s birth certificate dated July 12, 2021

showing claimant’s identity.[4]

[6]       The panel notes that the claimant had stated at the port of entry that his passport was missing in the US. Asked how he originally obtained the lost passport, the claimant testified that he had sent for his birth certificate through his friend’s father in Ghana. With the birth certificate and filled application form, he applied for it in New York. He stated that his lawyer requested for the passport to enable him to apply for work permit. The panel finds that that this is reasonable and accepts the above listed document in evidence. Objective evidence indicates that certified copy of entry into registry of birth can be obtained by being computer generated since 2009 on Ghana’s Birth and Death Registry (BDR).[5] The copy of the claimant’s birth certificate attached as evidence is consistent with the Response to Information Request (RIR) sample. Objective documentation further states that an individual can apply for a passport in Ghana using an application form, birth certificate or any other proof of citizenship, 4 recent sized passports as well as the processing fee and two guarantors while the biometric passport can be obtained with the submission of an application form, birth certificate, old passport where available and bank receipt for processing fee. Ghanaians abroad can obtain a passport by providing an application form, passport sized photographs and an old passport where available.[6]

[7]       Based on the totality of the evidence, the panel finds that the claimant has established his identity as a Ghana national with his Ghana certified copy of registration of birth, marriage certificate as well as his oral testimony.[7]

Nexus

[8]       For a 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. The claimant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.

[9]       The claimant has made two allegations of fear in Ghana. First, he fears being targeted by his half siblings and stepmothers due to a property dispute after his father’s death. The panel finds that this allegation of dispute with his half siblings and stepmothers is a personal vendetta and does not have a nexus to the Convention, as such, has assessed this allegation based on section 97(1) of the Act. Secondly, the claimant alleges that he will be targeted in Ghana due to his perceived practice of witchcraft. The panel finds that there is a nexus between his allegation and the refugee Convention ground of membership in a particular social group. As such, has assessed this claim under both sections 96 and 97(1) of the Act.

Credibility

[10]     When a claimant swears to the truth of allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness.[8] The claimant testified in straightforward, forthright, detailed, and candid manner. There were no material inconsistencies, omissions, or contradictions between any of the claimant’s testimony and the other evidence in this case.  In summary, the claimant’s testimony was consistent with the other evidence on central aspects of the claim.

[11]     The claimant testified that he was born in a polygamous home with his mother being the last wife of three wives. He stated that his mother died when he was three months old and, his father raised him while the other wives and children did not like him. He attended elementary school and upon completion joined his father in farming, after some years, his father gave him a portion of the land to farm. After his father’s death in 2015, tension escalated as his siblings did not wish to share the properties according to the traditional and religious practice and proceeded to destroy his farm, threaten him and spread the rumours that he was a witch who had taken after his late mother’s witchcraft. The claimant submitted a statutory declaration by an XXXX chief which corroborates his allegations that he was being targeted.

[12]     The claimant was able to speak clearly about his fears of returning to Ghana due to being accused of witchcraft by his half siblings, stepmothers and the community and how witches are treated in Ghana. The claimant was also able to answer the specific questions asked without embellishment. The panel finds that the claimant is a credible witness.

[13]     The claimant provided document to support his claim supporting the allegations of treatment of witches in Ghana.[9] The panel has no reason to doubt the genuineness of the documents provided by the claimant and since they relate to the claimant’s allegations of being a victim of violence, threats and being a witch, the panel gives them great weight to support the claimant’s allegations and overall claim.

Claimant’s travel history and claim in the United States

[14]     The claimant entered Canada in XXXX 2019. The claimant testified that he travelled from Takoradi port through his friend’s father’s help to Panama in XXXX 2015 through a ship, after which he went through central America until he crossed the border from Mexico into the United States in XXXX 2016. He was detained on arrival till XXXX 2016, after which he filed an asylum claim which was denied in XXXX 2018. This brings into question the issue of eligibility under section 101(1)(c.1) of the Act. A notice was sent out to the Minister abut a possible ineligibility on the claim, the Minister responded that the claimant is not ineligible due to his claim in the United States, and the Minister declined to intervene.[10]

[15]     Based on the overall credibility of the claimant’s testimony, the presumption of truthfulness, and the corroborative evidence, the panel finds, on a balance of probabilities that the claimant was a farmer, has half siblings and stepmothers, that there was a dispute regarding properties arising from the death of his father. The panel further finds that the claimant fled XXXX to Takoradi and thereafter left Ghana using a ship and travelled through central America to Mexico and crossed to the United States where he filed an asylum claim which was denied and thereafter to Canada where he filed a claim.

Well-Founded Fear of Persecution and Risk of Harm

[16]     In order to be found a Convention refugee under section 96 of the IRPA, a claimant must show that she or he has a well-founded fear of persecution by reason of race, religion, nationality, political opinion or membership in a particular social group. Based on the information available before the panel, the panel finds that the claimant is a member of the particular social group of people who are perceived to be witches.

Land dispute claim

[17]     The claimant alleges that his problems escalated after his father’s death in 2015. According to the claimant, he is the youngest child and only child of his mother who died after 3 months of his birth. He has 4 older siblings who are from different mothers, he stated that it was the religion and culture to share these properties as they belong to all the children. When asked how many lands and houses, the claimant responded that he was not certain how many pieces, but the land was a large piece with one house.

[18]     Land ownership is not a core human right. The court has found that those who are able to make reasonable choices to free themselves of a risk of harm must be expected to pursue those options.[11] The claimant testified that his village has a chief and a meeting was summoned where the chief talked to them and there was nothing to show his half siblings had backed down. He further stated that the chief knew the nature of his half siblings and he was advised to go somewhere else if he valued his life.  The panel asked if he reported the issue to the police, the claimant testified that in his society, no one bothers with the police as no action is taken unless money is given to them. He then stated that he took the chief’s advise and with the help of his friend’s father left Ghana through Takoradi.

[19]     The panel does not find it reasonable that the claimant would put his life at risk for property which he has in essence already given up since he left Ghana, as the half siblings and stepmothers continue to live there. As such, the panel does not find that there is sufficient evidence to establish that the claimant faces a danger of torture, a risk to his life or a risk to cruel and unusual treatment or punishment if he returns to Ghana.

Perceived practice of witchcraft

[20]     Ghana constitution prohibits religious discrimination, stipulates that individuals are free to profess and practice their religion, and does not designate a state religion. The estimated population is 28 million with 71percent Christians, 18 percent Muslims and 5 percent practice indigenous or animistic religious beliefs and 6 percent belong to other groups or has no religious beliefs.[12] Even though this demography exists, objective documentation shows that most Ghanaians believe in juju (fetish), ghosts, black magic and evil spirits and will seek help from fetish priests or other spiritual specialists in their locality.[13] The report also indicates that, in certain areas in Ghana, many believe in witchcraft with many hamlets, villages, clans and towns seeking protection against witches or having gods and fetishes to spiritually kill witches.[14]

[21]     Objective documentation states that the constitution prohibits practices that dehumanize or are injurious to the physical and mental well-being of a person however the media has reported several killings and attempted killings for ritual purposes. In the Northern, North East, Upper East, and Upper West Regions, families or traditional authorities banished rural women and men suspected of “witchcraft” to “witch camps.” It further states that most of those accused of witchcraft were older women, often widows. Some persons suspected to be witches were killed. In July several individuals beat to death a woman aged 90 suspected of witchcraft in Kafaba, in Savannah Region.[15]

[22]     The claimant testified that he had been accused of witchcraft with villagers being told it was passed to him from his late mother through the various narratives by his half siblings and stepmothers. He further testified that in communicating with his friend in Ghana, that there’s ongoing threat against him if he were to return as this information is now in the public domain. Based on the information before the panel, the panel finds that the claimant has established on a balance of probabilities, that he faces a serious possibility of persecution on the basis of his imputed practice of witchcraft in Ghana.

State Protection

[23]     In all refugee claims, a state is presumed to be capable of protecting its citizens unless there is clear and convincing evidence that protection would not be forthcoming to a claimant.[16] The United States Overseas Security Advisory Council report states that the Ghana Police Service (GPS) is almost solely a reactive force and demonstrates only moderate proactive techniques and ability to deter crime. It states further that the Ghana Police often lack the equipment, resources, training, and personnel to respond to calls for assistance or other emergencies and that the police have a poor record of investigating and solving serious crimes.[17]

[24]     Further objective evidence states that in areas without a significant or permanent presence of public security officers, civil rights are often determined and protected based on traditional law, which does not necessarily follow the letter of public law. This specifically refers to individuals and groups who display socially unacceptable behavior or are accused of such (e. g. “witches”).[18]

[25]     The claimants’ testimony is consistent with the country reports referred to above, which report that Ghana police forces is mostly reactive and lack the equipment and resources to solve crimes. The panel notes that’s there is an elevated fear and risk with the claimant being perceived a witch. In these circumstances, the panel finds, on a balance of probabilities, that the claimant cannot avail himself of state protection in Ghana.

Internal Flight Alternative

[26]     In Rasaratnam v. Canada (Minister of Employment and Immigration), the Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative was raised, the onus is on the claimant to show that she does not have an IFA.[19] The burden placed on a claimant is fairly high in order to show that the IFA is unreasonable. In the Federal Court of Appeal decision of Ranganathan v. Canada (Minister of Citizenship and Immigration) in 2001, it was stated that the test is to show that the IFA is unreasonable.[20] That test requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimants in relocating to a safe area. Actual and concrete evidence of adverse conditions is required. The panel finds that that the claimant would face a serious possibility of persecution in either Tamale or Accra. 

First Prong – Serious Possibility of Persecution

[27]     At the hearing, the panel proposed Accra and Tamale as possible IFAs. The objective evidence, as found in the World Factbook for Ghana at item 1.3, indicates that Ghana is a country that’s approximately 230K square kilometres and has a population of approximately 29M. Accra is the capital and it has approximately 2.5M people.[21] The claimant was residing in XXXX which is approximately 248kms from Accra and 375kms from Tamale.

[28]     The claimant testified that he fears his half siblings, stepmothers and the society at large. The claimant testified that his siblings are in the transportation industry and therefore he would not be safe as Ghana is not a big country and this is why he cannot live anywhere safely in Ghana. The panel finds that there is not sufficient evidence before it that the half brothers, even though in the transportation business, have the ability and means in harming the claimant any of the proposed IFAs.

[29]     The panel then considered the issue of the claimant being perceived a witch in Ghana. The panel notes that there is still ongoing threats about the claimant being a witch in the community. The evidence before the panel as noted above is that most Ghanaians still believe in traditional practices and in the powers of witchcraft. The claimant’s half brothers are into transportation business and therefore have the opportunity to be in different cities with different people.

[30]     The Federal Court has repeatedly held that a refugee claimant cannot be expected to live in hiding in order for a proposed IFA to be reasonable.  The evidence indicates that the claimant’s half siblings have continued spreading news about him being a witch and as they are truck and taxi drivers, they have, on a balance of probabilities, disseminated this information across several routes. As such, the panel finds that if the claimant returns to Ghana and tries to relocate to either proposed IFA, he would face more than a mere possibility of persecution from the community and general populace as he may be killed for being a witch unless he chooses to live in hiding. It is more than merely speculative that people in Accra or Tamale would learn that he is a witch and harm him.

[31]     Based on the totality of the evidence, the panel finds that the claimant would not be safe nor would it be reasonable to relocate to the proposed IFAs , therefore, he would face a serious possibility of persecution in either proposed IFA location and as such there is no viable internal flight alternative available to the claimant.

CONCLUSION

[32]     For the foregoing reasons, the panel determines that the claimant is a Convention refugee pursuant to s. 96 of the Act, and therefore accepts the claim.

(signed) Osehise L. Odigie

January 13, 2022


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

[2] Exhibit 2, Basis of Claim form.

[3] Exhibit 1, Claim referral information from CBSA/IRCC

[4] Exhibit 5, Claimant’s Disclosure (statutory declaration, claimant’s birth certificate, marriage certificate, child’s birth certificate and country condition) December 21, 2021

[5] Exhibit 3 National Documentation Package, Ghana, 16 April 2021, tab 3.2: ​Update to GHA105228 of 15 July 2015 on the “Certified Copy of Entry into Registry of Births” certificate, including additional information on its format and security features; whether the format has changed since 2009; authorized signatories (2009-July 2015). Immigration and Refugee Board of Canada. 17 October 2017. GHA106008.E.

[6] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 3.6: Requirements and procedures for obtaining a passport, both within and outside the country; types of documents accepted as proof of identity and citizenship (2008-2013). Immigration and Refugee Board of Canada. 3 January 2014. GHA104709.E.

[7] Exhibit 5, Claimant’s Disclosure (statutory declaration, claimant’s birth certificate, marriage certificate, child’s birth certificate and country condition) December 21, 2021

[8] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).

[9] Exhibit 5.

[10] Exhibit 4, Minister’s non intervention dated November 10, 2021

[11] Malik v Canada (Citizenship and Immigration), 2019 FC 955 at paras 25-30; Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 at para 19)

[12] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 12.1: ​Ghana. International Religious Freedom Report for 2019. United States. Department of State. 10 June 2020.

[13] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 12.2: Presence of cults or sects and consequences for refusing to join a cult; government attitude or response towards cults and/or any abuses committed by sect members (2004 – 2006). Immigration and Refugee Board of Canada. 11 October 2006. GHA101612.E.

[14] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 12.2: Presence of cults or sects and consequences for refusing to join a cult; government attitude or response towards cults and/or any abuses committed by sect members (2004 – 2006). Immigration and Refugee Board of Canada. 11 October 2006. GHA101612.E.

[15] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 2.1: Ghana. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

[16] Canada (Attorney General) v. Ward, [1993] 2 SCR 689.

[17] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 7.1: ​Ghana. 2020 OSAC Crime and Safety Report. United States. Overseas Security Advisory Council. 8 May 2020.

[18] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 1.9: ​BTI 2020 Country Report — Ghana. Bertelsmann Stiftung. 2020.

[19] Rasaratnam v. Canada (Minister of Employment and Immigration),[1992] 1 F.C. 706 (C.A.).

[20] Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.).

[21] Exhibit 3, National Documentation Package, Ghana, 16 April 2021, tab 1.3: ​Ghana. The World Factbook. United States. Central Intelligence Agency. 10 September 2020.

Categories
All Countries Colombia

2021 RLLR 91

Citation: 2021 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 29, 2021
Panel: Dewa Baqi
Counsel for the Claimant(s): Patricia Ritter
Country: Colombia
RPD Number: TC0-06790
Associated RPD Number(s): N/A
ATIP Number: A-2022-01778
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division for XXXX XXXX XXXX XXXX. You are claiming to be a citizen of Colombia and are claiming refugee protection pursuant to s. 96 and 97 of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. The written decision will come to you shortly and maybe amended to include specific citations to exhibits in case law as needed.

[2]       The Panel has determined that the claimant is a Convention refugee or a person in need of protection pursuant to s. 96 and 97(1) of IRPA. You allege that you are a citizen of Colombia and that you fear harm in Colombia from the Revolutionary Armed Forces of Colombia, also known as FARC, dissidents who are targeting you because of your work with vulnerable communities who are victims of war. You allege that there is no state protection for you or an internal flight alternative.

[3]       Your personal identity as a citizen of Colombia has been established by our testimony and the supporting documents filed in Exhibit 1, namely your genuine passport from Colombia. I find, based on a balance of probabilities, that identity and country of reference have been established.

[4]       I find that there is a link between what you fear and one of the five grounds, namely membership in a particular social group as a social activist. I have therefore assessed the claim under s. 96.

[5]       I find you to be a credible witness. Your testimony was clear and consistent with the written narrative and evidence on file. You established that in 2018 you graduated from the XXXX XXXX XXXX with a diploma in XXXX. As a requirement for your graduation, you started a project in 2016 that involved interviewing migrants who moved to a city due to the increasing violence caused by the FARC. You established that after graduation you continued to work with the vulnerable communities of Caloto and Santander de Quilichao, particularly with victims of war.

[6]       You spoke passionately about your desire to give the people in these communities who are minorities a voice and how you have a personal connection to this cause because your family had also fled their community for the same reasons. You spoke spontaneously and in detailed and knowledgeable manner about the challenges faced by those displaced by FARC and what makes the specific communities you worked with vulnerable. You spoke with convincing clarity about the type of work you were doing that involved XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[7]       You established that the FARC considered you to be a social leader. You first received a call in 2016 warning you to be careful about what you wrote about in your school project. You continued to receive calls in 2017 warning you to stop and telling you they were aware of your activity. As a result, you stopped your project for two months. In 2019, you received multiple calls from FARC telling you to stop your work in the communities of Caloto and Santander de Quilichao. They threatened you to stop visiting these areas or working with former combatants and to leave the area. They called you a meddler and declared you a military target, informing you that they would double their surveillance on you. As a result, you stopped working completely.

[8]       I know that your claim is supported by the following documents: a letter from XXXX XXXX XXXX XXXX (ph) certifying that she was a migrant who was interviewed by you as part of your graduation thesis from January 2016 to September 2017, letters from participants in your workshops that took place in Guapi and Cauca, letters from your family members, a letter from the organization XXXX XXXX XXXX that you had volunteered with, and a copy of your reports to the prosecutor’s office and the Attorney General’s office.

[9]       Accordingly, on the whole, in terms of your general credibility, I found you to be a credible witness and I accept — I therefore accept what you have alleged in your oral testimony and Basis of Claim form based on a balance of probabilities. Your subjective fear is established by your credible and corroborated testimony.

[10]     I also find that your claim is objectively well-founded. Item 7.37 in the NDP reports civilians in various parts of the country suffered serious abuses at the hands of the FARCs, FARC dissidents, and paramilitary successor groups and the human rights defenders, journalists, indigenous, and Afro-Colombian leaders and other community activists face pervasive death threats and violence.

[11]     Item 1.8 in the most recent NDP for Colombia States following. According to the Human Rights Watch, since the demobilization of FARC, community activists face death threats and violence, mostly from guerilla groups and successor groups, and perpetrators are rarely held accountable.

[12]     The Office of the Ombudsman identify leaders of victims and displaced persons and human activists are some of the most vulnerable groups due to their activities in the context of the armed conflict. Targeting these profiles are motivated by the drive to eliminate threats to their interests by social leaders who social and community involvement concerns issues such as land restitution and the return of displaced land to their people — displaced people to their lands.

[13]     I find that the objective evidence is consistent with your subjective fear. Therefore, based on the totality of evidence, I find, on a balance of probabilities, your fear has an objective basis and is well-founded.

State Protection

[14]     There is a presumption of state protection unless the country is in a state of complete breakdown. This can be rebutted with clear and convincing evidence that the protection would not be reasonably forthcoming.

[15]     You testified that you attempted to seek state protection and were told that you were not — that there were not enough resources to protect you and that they would send someone to your area if possible. They also told you to call in case of an emergency.

[16]     The country conditions reveal item 7.37 in the NDP indicates that the FARC commonly kills without warning. Accessing state protection is really hard for those targeted by criminal groups due to a very high threshold for eligibility and a certain amount of public exposure is required for known leaders. Many community leaders do not receive threats or do not report them to the prosecutor, which is a requirement for them to receive protection.

[17]     Item 2.13 further states that demobilization of FARC was not accompanied by the mobilization and integrated presence of the state in the areas previously under its control. This inaction of the state allowed illegal armed groups and criminal groups to reorganize power around illicit economies. Defenders of human rights have become the targets of attacks, and they lack effective state protection. The delays, lack of political determination, and failure to allocate sufficient funds for the implementation of the peace agreement which prioritizes, among other things, the dismantling of these groups and the integrated presence of the state, is undoubtedly one of the key structural causes that keeps human rights defenders at risk.

[18]     These reports establish groups regularly target social and community leaders who they see as threats to their control over an area or population or threats to their interest. The report also discloses that there are swift and severe consequences for those who go to the police. The reports also establish an inability of the Colombian authorities to provide protection to those facing threats from gangs and guerilla groups.

[19]     I find that your experiences are consistent with the country documentation. Based on your personal circumstances and the country documentation, I find that you have rebutted the presumption of state protection and that it is not forthcoming to you.

Internal Flight Alternative

[20]     I have a considered whether a viable internal flight alternative exists for you. With respect to the first prong, I find that there is a serious risk of persecution or risk to life or risk of cruel and unusual treatment in Colombia. You testified that you were declared a military target and that the FARC dissidents were able to locate you and informed you that they had knowledge of your whereabouts, activities, even the way you were dressed.

[21]     Items 7.1 of the NDP describes being a military objective means that one’s life and physical integrity and freedom is endangered. The evidence also establishes they or any groups that are targeting you have the motivation to find you. You have filed police complaints and protection requests which is something all groups in Colombia take very seriously and try to respond to with severe consequences.

[22]     On the second prong, I find that you — it would not be reasonable in all the circumstances for you to reside in the IFA, because you testified that if you returned to Colombia you would continue to advocate for the rights of minorities and look for work as an anthropologist because it was what you went to school for. This would make it easy for you to be targeted and found by the members of the FARC dissidents.

[23]     The reports also disclosed that armed groups have reach throughout Colombia and can target individuals even in areas where they do not exert control. In fact, the peace process between the government and FARC has created a power vacuum in areas previously controlled by the FARC and led to a growth in new and less predictable armed groups operating. Accordingly, I find that you are a serious — that you face a serious possibility of persecution throughout the country. I therefore find that there is no viable internal flight alternative available to you.

[24]     Based on the totality of the evidence and my analysis above, I find the claimant to be a Convention refugee, and I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2019 RLLR 218

Citation: 2019 RLLR 218
Tribunal: Refugee Protection Division
Date of Decision: October 22, 2019
Panel: David D’Intino
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TB8-15170
Associated RPD Number(s): TB8-15187
ATIP Number: A-2020-00859
ATIP Pages: 003052-003066

REASONS FOR DECISION

[1]       XXXX XXXX XXXX XXXX (the principal claimant) and her son XXXX XXXX XXXX XXXX (minor claimant) are both Mexican citizens and claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

DESIGNATED REPRESENTATIVE

[2]       The principal claimant was appointed as the designated representative for the minor claimant. Their claims were heard jointly pursuant to rule 55 of the RPD Rules.

ALLEGATIONS

[3]       The claimants’ allegations are fully set out in the principal claimant’s basis of claim (BOC) form and attached narrative.2 To summarize, the principal claimant alleges that her son faces a serious possibility of persecution or a risk to life or of cruel and unusual punishment or treatment in Mexico on account of his diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX.

DETERMINATION

[4]       The principal claimant is neither a Convention refugee under s. 96 nor a person in need of protection under s. 97(1), as she has failed to demonstrate a serious possibility of persecution on a Convention ground, or a personalized, forward-facing risk to life or of cruel and unusual treatment or punishment on a balance of probabilities.

[5]       The minor claimant is a Convention refugee under s. 96. He has established a serious possibility of persecution on a Convention ground, as a member of a particular social group, persons with XXXX XXXX XXXX XXXX XXXX XXXX

DETERMINATIVE ISSUES

[6]       The determinative issue for the principal claimant was a nexus to the Convention and generalized risk under s. 97.

ANALYSIS

Identity

[7]       The claimants’ personal identities as nationals of Mexico were established on a balance of probabilities by their Mexican passports3 and birth certificates4.

Exclusion 1(F)(B)

[8]       On the first date of the hearing, the principal claimant had not provided a consent or family court from Mexico allowing the minor claimant to leave the country and satisfy me that exclusion under article 1(f)(b) was not an issue.

[9]       On that basis, I granted an adjournment to allow the principal claimant to obtain a consent letter signed by the minor claimant’s father and provide that to the Board.

[10]     Subsequently, on XXXX XXXX XXXX 2019, I received said letter5 from XXXX XXXX XXXX who is XXXX father. This latter satisfied my concerns such that I was able to determine that exclusion under article 1(f)(b) was no longer an issue.

Credibility

[11]     The principal claimant provided testimony on behalf of her son, who is XXXX XXXX XXXX and has significant XXXX deficits. The principal claimant was a credible witness. Her evidence was straightforward and consistent with that of her narrative. She did not embellish her evidence and her testimony was free from any material omissions or contradictions.

[12]     As such, I make the follow findings of fact:

  1. When XXXX was approximately XXXX years of age, the principal claimant began to suspect he had some XXXX difficulties. He was only able to speak about ten words; he was not able to get rid of diapers and would become aggressive when he was in places with many people around;
  2. In approximately 2011, the principal claimant enrolled her son in the XXXX program which is an educational program in Mexico City for children with XXXX. He was diagnosed accordingly by the program and was assigned to a therapy center;
  3. After a few weeks in the program, XXXX expressed a reluctance to return there and the principal claimant indicates that he regressed to soiling himself. The principal claimant confronted the teachers and the headmaster at the school and was told XXXX was not following the rules and was disrupting classes;
  4. As a result, XXXX would come home with scratches or irritation on his body. While the school did not admit that their staff was responsible for these marks, the principal claimant felt that the headmaster was communicating “with a smirk or a smile” that they were acknowledging responsibility;
  5. The principal claimant kept XXXX in the program for a while to see if things improved but when they did not, she removed him from XXXX the following year when he was XXXX years old;
  6. When XXXX was XXXX years old, the principal claimant registered him at XXXX XXXX a government funded school for children with disabilities. XXXX remained in that program for one year. There was a ratio of about one teacher for every ten to thirteen children, and the minor claimant was very nervous there. He would be screamed at for not complying with the teachers directions and would start to cry;
  7. After removing him from XXXX XXXX the principal claimant did not enroll XXXX in any further programming;
  8. The principal claimant does not receive any financial assistance for XXXX from the child’s father. She had worked as a XXXXand aXXXX XXXX until the age of XXXX in Mexico and stopped working when she married. Subsequent to that, she sold XXXX XXXX from home and also worked at a XXXX XXXX or similar business;
  9. The principal claimant has been on a waiting list in Mexico for government assistance for her son since 2012. Her application has not yet been decided on. She was able to pay a small amount for the XXXXandXXXX XXXX programs from her own earnings, but was unable to afford more expensive therapies through the Mexico City XXXX XXXX;
  10. The principal claimant alleges XXXX is discriminated against by friends and family. For example, her friends don’t allow their children to interact with XXXX out of fear. Her sister and brother-in-law physically abused XXXX when she would leave him in their care to go to work;
  11. The principal claimant has two other children, XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXX who reside with her spouse, from whom she is separated. Those children “cannot stand” their brother and do not help with his care;
  12. Parents and members of the community would keep their distance from the minor claimant or give him odd looks. Children his age would mock him and push him around;
  13. The principal claimant fears that if returned to Mexico, XXXX would be physically and XXXX mistreated and could end up “disappeared” – Mexican parlance referring to being kidnapped or killed and never found;

NEXUS

[13]     I find that the minor claimant has a nexus to the Convention as a member of a particular social group, persons with XXXX XXXX XXXX. Relying on the Supreme Court of Canada decision in Ward6, I find that the minor claimant’s diagnosis on the XXXX XXXX constitutes “an innate and unchangeable characteristic” for which the principal claimant alleges he is being persecuted by Mexican society in general. XXXX XXXX XXXX XXXX XXXX XXXX is classified as a neurodevelopmental disorder in the Diagnostic and Statistical Manual of Mental Disorder version 5 (DSM V) which is published by the American Psychiatric Association.7

[14]     I find that the principal claimant does not have a nexus to the Convention, as she has not alleged a serious possibility of persecution by reason of her race, nationality, ethnicity, political opinion, religion or membership in a particular social group. I likewise find that the NDP for Mexico8 does not support a serious possibility that she would be persecuted as a member of XXXX family nor did she make such allegations.

[15]     The principal claimant did profess a fear of “general instability” in Mexico related to criminal activity. Criminal acts do not generally establish a nexus to a Convention ground.9

[16]     As such I find that her fear is best assessed under s. 97(1) of the IRPA.

Subjective Fear

[17]     As XXXX is non-verbal, the evidence in this claim was entered by the principal claimant on his behalf. I have already found her evidence to be credible on a balance of probabilities. I likewise find that there is no evidence of action or inaction on the part of the claimants that could be seen as being inconsistent with a professed subjective fear of persecution in Mexico.

[18]     Based on those conclusions I do find that the minor claimant has established a subjective fear of persecution on a Convention ground.

Objective Basis

Does the mistreatment of persons with XXXX in Mexico rise to the level of persecution?

[19]     In order to ground a successful claim under s. 96, the principal claimant must demonstrate a serious possibility of persecution to her son, on the basis of his XXXX diagnosis. Therefore, I must consider now whether the mistreatment of her son specifically, and in the broader sense, the mistreatment of persons with disabilities in Mexico generally, amounts to persecution.

[20]     Persecution is a nebulous concept, in that it does not have a neat and tidy definition. Rather, as a concept it is explained more so by the presence of certain factors in a given scenario, or conversely, by what it is not.

[21]     First, to be considered persecution, the mistreatment suffered or anticipated must be serious.10 I then must examine firstly, what interest of the claimant might be harmed and secondly, to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised. There must be a link between the serious, compromising of interest with the denial of a core human right.11

[22]     I must also consider whether the conduct being complained of rises to the level of persecution, or where it amounts merely to discrimination – the distinction being the degree of serious of the harm involved.12 The Court of Appeal has observed that “the dividing line between persecution and discrimination or harassment is difficult to establish”.13

[23]     A second feature of persecution is that the harm occurs with repetition, persistence or in a systemic way.14 There are however some harms, such as female genital mutilation or death, which imply a degree of permanence such that they cannot be, or are unlikely to be, repeated. It is trite law however, that a claimant need not demonstrate that they have suffered incidents of past persecution to be a successful refugee claimant, as the test is forward-looking.

[24]     Lastly, I must also consider whether acts of discrimination cumulatively amount to persecution against a claimant. Where the RPD considers these incidents individually, but not cumulatively, its commits a reversible error.15

[25]     Turning now to the facts of this case, I must apply the law to the facts to determine whether the treatment XXXX has received in Mexico rises to the level of persecution, such that he has a well-founded fear of same, as contemplated by section 96 of IRPA.

[26]     The first incident concerns his treatment at XXXX XXXX where the principal claimant indicated that XXXX would come home with marks and irritation on his skin and would revert to soiling himself. The agent of persecution in this situation are the instructors and staff at XXXX. The conduct in question is difficult to assess because the minor claimant is unable to express himself due to his XXXX limitations. The principal claimant is effectively deducing what occurred her son based on her observations of his behaviour.

[27]     The principal claimant did not specifically assert that XXXX was mistreated at XXXX because of his diagnosis of XXXX. She in fact was unsure of whether the real cause of this mistreatment was as a result of the staff not having the training or the temperament to deal with the special needs of a child like XXXX XXXX XXXX did not admit to physically disciplining XXXX but rather, retorted that he was disruptive in the classroom or was not obeying the rules.

[28]     I have no reservation in finding that XXXX was physically disciplined at XXXX for some reason and that such treatment was inappropriate and would constitute a criminal offence if committed in Ontario. However, I do not find on a balance of probabilities that such mistreatment occurred by reason of his diagnosis of XXXX.

[29]     The second incident concerns the treatment of the minor claimant at the XXXX program. The principal claimant explained that there would be one teacher for approximately 10-13 children and they would scream at XXXX for not listening to their directions. He would then become upset and would start crying and tell his mother that he wanted to leave.

[30]     The agent of persecution in this instance are the teachers and staff at the XXXX program. Again, due to his XXXX limitations I am unable to hear from XXXX precisely what occurred during this time. In contrast to the incidents at XXXX, the principal claimant in this case was able to observe the yelling at her son by staff at XXXX and thus provide first-hand evidence.

[31]     Compared to the previous incident, the conduct in this case is less severe. The agent of persecution is not the same. While I find that yelling at a child with special needs is repugnant, I do not find that this conduct rises to the level of persecution, as it does not amount to the denial or interference with a core human right.

[32]     The third incident I must consider involved the treatment of XXXX by the principal claimant’s brother-in-law. The principal claimant testified that she would leave XXXX in the care of her sister and brother-in-law for a time while she went to work. She would then start to see bruising on XXXX body, on his cheek and mouth. He would beg his mother not to go. When the principal claimant confronted her sister, the latter claimed to have no seen what happened. The brother-in-law admitted that he “overdid it” and that the child could not clean himself properly and wasted too much toilet paper. The principal claimant stopped having her son cared for by her sister and brother-in-law as a result.

[33]     The agent of persecution in this situation was the principal claimant’s brother-in-law. The degree of harm was most severe in this situation and in my view does rise to a level where one of XXXX core human rights was interfered with – his right to security of the person.

[34]     Much like in the previous two instances, the principal claimant herself has acknowledged the possibility that her son is being mistreated because those caregivers are ill-equipped to deal with a child with his needs. Certainly, caring for a child with special needs requires a certain type of person, one who is blessed with patience, compassion and understanding. It is conceivable that a person who lacks these qualities when placed in a situation where they are caring for 10-13 other children, would become overwhelmed and frustrated. The fact remains however that whomever cares for this child, they mistreat him in some way. Whether they do so out of frustration or because of his disability, the effect on XXXX is the same.

[35]     Cumulatively assessing these incidents, I find that though they involve three different agents of persecution and three differing degrees of conduct, they form a pattern of discrimination or outright abuse which endangers the minor claimant’s security of the person.

[36]     I therefore find that these past incidents cumulatively amount to persecution on a Convention ground. I will now turn to the NDP to analyze whether there is a serious future possibility of persecution for the minor claimant, should they return to Mexico.

[37]     The National Documentation Package (NDP) for Mexico16 is sparse with regard to its analysis of the situation for persons with disabilities in Mexico. Item 2.1, the U.S. DoS Report on Human Rights Practices for 2018 says the following on this issue:

The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities. The government did not effectively enforce the law. The law requires the Ministry of Health to promote the creation of long-term institutions for persons with disabilities in distress, and the Ministry of Social Development must establish specialized institutions to care for, protect, and house poor, neglected, or marginalized persons with disabilities.

NGOs reported authorities had not implemented programs for community integration. NGOs reported no changes in the mental health system to create community services nor any efforts by authorities to have independent experts monitor human rights violations in psychiatric institutions. Public buildings and facilities often did not comply with the law requiring access for persons with disabilities.

The education system provided special education for students with disabilities nationwide. Children with disabilities attended school at a lower rate than those without disabilities.

Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearance, and the illegal adoption of institutionalized children.

Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation services, privacy, and clothing; they often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking. Access to justice was limited.

[38]     What I take from this report is that while Mexico has well-intentioned legislation on the books, the actual implementation of those laws is lacking and that has in part, led to inadequate conditions and even exploitation of persons with disabilities in institutionalized settings.

[39]     While these observations from institutional settings do not have an immediate factual nexus to the facts before me, I must consider the forward-facing nature of any risk or serious possibility of persecution to the minor claimant.

[40]     Exhibit 7 is a Response to Information Request (RIR) I asked to be commissioned for this claim. It examines the situation in Mexico for persons with autism and intellectual disabilities.

[41]     The RIR notes that an estimated 1 in every 115 children are on the autism spectrum in Mexico, totalling approximately 400,000 children living with the diagnosis throughout the country17.

[42]     According to the RIR18:

A 2008 study on autism and special education policy in Mexico reports the following:

Given the social stigma associated with disability, the incidence of autism among children within the family can magnify many other challenges Mexican families may encounter … . Due to the persistence of folk beliefs and misinformation about the sources of disability, families with children with autism report isolation or distance from other members of their extended family, changed behaviors among siblings, and feelings ranging from depression to burnout. [Lack of sufficient] [e]conomic resources are [a] frequently cited cause of familial stress, as parents attempt to secure the necessary funds to find appropriate support services or treatment for their child. (Tuman, et al. Apr. 2008, 4)

The Mexican government, in its combined second and third periodic reports to the UN Committee on the Rights of Persons with Disabilities, states the following:

Educational institutions are taking steps to raise awareness about persons with disabilities as rights holders. From 2014 to 2017, campaigns were conducted to provide information and raise awareness about different types of disability, such as autism [and] Down syndrome … , and about the Day of Persons with Disabilities, so as to promote harmonious relations and acceptance, eliminate barriers to learning and encourage participation. (Mexico 19 July 2018, para. 55)

Articles published by CE Noticias Financieras similarly mention there has been activities to raise awareness about autism in Mexico, such as conferences (CE Noticias Financieras 7 Sept. 2018) and the World Day of Autism Awareness (CE Noticias Financieras 2 Apr. 2019).

[43]     The RIR notes that there is a new Mental Health bill under review in Mexico, as well as a new general law which would increase protections for persons with XXXX.19 These laws are currently being examined, in part due to concerns raised by Human Rights organizations that certain provisions could violate the rights of concerned persons, for example, by legalizing involuntary admissions to psychiatric facilities or authorizing non-consensual medical treatment.

[44]     Mexico does have a number of publically and privately funded institutions which assist with the diagnosis, treatment and education of persons with XXXX. The RIR lists among them the Centra Integral de Salud Mental (CISAME); Clinica de Autismo; Autisimex; and Clinica Mexicana de Autismo U Alteraciones del Desarrollo20. With the exception of CISAME – of which the principal claimant was aware of and indicated that their services were not free – she was not aware of the existence of these other organizations, most of which are either publically funded or are non-profit organizations.

[45]     I find that there is support in the NDP and the RIR for an objective basis to the principal claimant’s fear, in the sense that inadequate medical care and even outright exploitation of persons in institutionalized settings occurs in Mexico, such that a forward-facing serious possibility of persecution does exist for XXXX.

[46]     XXXX has no cure. XXXX turned XXXXthis XXXX. His challenges persist and he is still non-verbal, possessing a vocabulary of two words. By all accounts he is dependent on his mother for care. I do not have an expert XXXX report before me which could provide a future XXXX for XXXX if he received proper intensive therapy for persons with XXXX. However, I do find that there is likelihood that at some point in his life he could find himself involuntarily admitted to a mental health institution in Mexico.

[47]     In that future hypothetical scenario, there is a serious possibility of persecution on account of his diagnosis, as illustrated in the above quoted portions of the NDP.

STATE PROTECTION

[48]     The NDP supports the conclusion that on the one hand, the government of Mexico has appeared to take the care and rights of persons with disabilities serious by passing various pieces of progressive legislation. On the other hand, it’s most recent mental health bills have been criticized for potentially legalizing involuntary admissions to institutions or authorizing non­ consensual medical treatments, both of which would constitute grave violations of the personal integrity of such persons.

[49]     Furthermore, the NDP is quite unequivocal in that despite the passing of legislation designed to protect persons with mental health challenges or disabilities, serious abuses and outright exploitation of those same persons are still occurring in various institutional settings in Mexico.

[50]     Conservative attitudes and inaccurate assumptions about persons with disabilities persist in Mexico, such that in my view, effective state protection would not be forthcoming nor adequate for the minor claimant.

INTERNAL FLIGHT ALTERNATIVE

[51]     The claimants resided in Mexico City, the capital of Mexico. The RIR I had commissioned for this claim suggests that Mexico City has the most programming and support for persons like XXXX. If the claimant is experiencing persecution in Mexico City, then it is more likely than not that he would experience that persecution throughout Mexico.

[52]     Furthermore, given that he experienced various degrees of discrimination and abuse from various persons and institutions, I find that Mexican society as a whole is an agent of persecution based on their attitudes, fear and discriminatory behaviour towards XXXX and other children like him.

[53]     As such, I find that there is no location within Mexico that is both safe and reasonable for the minor claimant.

CONCLUSION ON THE MINOR CLAIMANT

[54]     I find that the minor claimant is a Convention refugee under s. 96, as he has established a serious possibility of persecution on a Convention ground in Mexico.

[55]     His claim is therefore accepted.

CONCLUSION ON THE PRINCIPAL CLAIMANT

[56]     The principal claimant did not argue that she was experiencing persecution in Mexico on account of her son.

[57]     I did try to question the principal claimant on whether she fears anything or anyone in Mexico. She indicated that she feared the general insecurity in Mexico. I asked her for some specific incidents that caused her to fear for her safety. She told me that when she was XXXX, she robbed of her watch and the victim of a failed kidnapping attempt as she was getting on a bus. For reference, the principal claimant is now XXXX years of age.

[58]     In 2015, the principal claimant was walking from work at 2:00am and felt that someone was behind her following her. She ran away and then returned home.

[59]     The principal claimant indicated that it was not the same people involved in either event. Aside from some foul language, nothing was said to her that would indicate why she was being robbed for example.

[60]     These two incidents were approximately XXXX years apart. There does not appear to be any common threads between the two incidents or any evidence upon which I can find that the principal claimant was personally targeted.

[61]     Robbery and violence are unfortunately very common in Mexico.

[62]     I find that the principal claimant fears robbery, abduction and general “insecurity” in Mexico. Under Section 97(1)(b) of the IRPA, a claimant is only a person in need of protection if removal to their country would subject them to a risk to their life, or a risk of cruel and unusual treatment or punishment or danger of torture and it is not a risk that would be faced generally by other individuals in or from that country.

[63]     The s.97(1)(b) exception has been held to exclude generalized risks associated with widespread crime21, organized crime, violence, extortion, police corruption and abuse of authority, human rights violations, general insecurity, terrorism, suicide bombing, political extremism and activities of armed military groups.

[64]     Not everyone facing a risk to life or a risk of cruel and unusual treatment or punishment will be found to be a person in need of protection, because Section 97 (1)(b)(ii) of the IRPA specifically excludes those persons who face a risk that is “faced generally by other individuals in or from that country.” There is nothing in s.97 (1) (b) (ii) that requires the Board to interpret “generally” as applying to all citizens. The word generally is commonly used to mean “prevalent” or “widespread”22. The risk must not be an indiscriminate or random risk faced by other citizens.

[65]     Absent any evidence from the principal claimant which would establish a personal targeting on these two occasions, I find that it was more likely than not that she was the victim of randomized violence, which is also not forward-facing.

[66]     The principal claimant is neither a Convention refugee nor a person in need of protection, as she has failed to demonstrate a serious possibility of future persecution on a Convention ground, or a personalized forward-facing risk to life or of cruel and unusual punishment or treatment in Mexico.

[67]     Her claim is therefore rejected.

(signed)           David D’Intino

October 22, 2019

Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.

2 Exhibit 2.1

3 Exhibit 1

4 Exhibit 4.

5 Exhibit 8

6 Ward v. Canada

https://www.psychiatry.org/psychiatrists/practice/dsm

8 Exhibit 3. National Documentation Package (NDP) for Mexico (March 29, 2019 version).

Kang v. Canada (MCI), 2005 FC 1128, at para. 10.

10 Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.)

11 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85.

12 Supra note xii.

13 Ibid.

14 Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.); Ward supra note xiii.

15 Mete, Dursun Ali v. M.C.I. (F.C., no. IMM-2509-04), Dawson, June 17, 2005.

16 Exhibit 3.

17 Exhibit 7, pg 2.

18 Ibid at pgs 2-3

19 Ibid at pg 6.

20 Ibid at pg 7-8.

21 Mejia, Maria Consuelo Martinez v. M.C.I. (F.C., no. IMM-653-03), O’Reilly, March 26, 2004; 2004 FC. De Matos Correira, Oslvado Jr v. M.C.I. (F.C., no. IMM-5151-04), O’Keefe, August 3, 2005; 2005 FC l 060 (CanLII)

22 Osorio, Henry Mauricio Gil v. M.C.I. (F.C., no. IMM-585-05), Snider, October 27, 2005; 2005 FC 1459 (CanLII)

Categories
All Countries Egypt

2019 RLLR 197

Citation: 2019 RLLR 197
Tribunal: Refugee Protection Division
Date of Decision: September 20, 2019
Panel: Julie Morin
Counsel for the Claimant(s): Luai Walid El Haj-
Country: Egypt
RPD Number: MB8-11152
Associated RPD Number(s): N/A
ATIP Number: A-2020-00518

REASONS FOR DECISION

INTRODUCTION

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

[2]       This claim has been decided without a hearing, according to the Immigration and Refugee Board’s Chairperson’s Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division (RPD) and paragraph 170(f) of the Act.

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

ALLEGATIONS

[4]       You allege the following: You allege that you will be harmed by your daughter’s husband. She had been a victim of domestic violence in Egypt. After years of violence in her country of origin, she and her children obtained recently the protection of Canada. She is now in the process of divorcing her husband, but he threatened to harm you if you were to return to Egypt in order to force her to go back there. You fear to be harmed by this man who was also violent with his children. You fear of being subjected to his violence if you were to go back to Egypt.

DETERMINATION

[5]       I find that you are a “Convention refugee” as you have established a serious possibility of persecution should you return to Egypt based on the grounds in section 96.

ANALYSIS

Identity

[6]       I find that your identity as a national of Egypt is established by the documents provided: namely your passport.

Nexus

[7]       I find that you have established a nexus to section 96 by reason of member of a particular social group as you fear persecution because you have members of your family who were submitted to domestic violence; consequently, they were granted the protection of Canada.

Credibility

[8]       Based on the documents in the file, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above: a testimony of your daughter who explains the risk you face in Egypt because she has started the procedures to divorce her violent husband (C-1); a XXXX report for your grandson XXXX which explains the problem that he is experiencing and confirms that his father has been violent with the family (C-2); the narrative of your daughter which describes in details the violence that she and her children, especially XXXX, were subjected to at the hands of her husband and father of the children (C-3). After reviewing the documents, I have no reasons to doubt their authenticity.

Objective Basis of Future Risk

[9]       Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm: Violence such as beating, injuries, possibly death.

[10]     The fact that you face this risk is corroborated by the following documents: NDP for Egypt – March 29, 2019 Version: on the fact that violence against women is widespread (tab 1.4); on the fact that domestic violence is prevalent and commonly accepted (tab 1.8); Amnesty International published a thorough analysis on the violence against women in Egypt (tab 5.6). The report states that women in Egypt have been facing endemic violence since the uprising of 2011.

State Protection

[11]     I find that adequate state protection would not be reasonably forthcoming in this particular case. According to the evidence I have, the police are also reportedly reluctant to investigate cases of violence against women, particularly where it is domestic (tab 1.4). Also, another source states that domestic violence remains unpunished because of shortcomings in the Egyptian Penal Code (tab 1.4). The government has put in place a few years ago the National Strategy to Combat Violence against Women but the results are limited because there is no monitoring mechanisms (tab 2.3). Finally, the Amnesty Internal report quoted above indicates that successive governments have failed to put in place adequate protection to women from this endemic violence (tab 5.6).

Internal Flight Alternative

[12]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Egypt. The evidence I have is that the person you fear is well connected and has influence. Also, the evidence I have is that this man was violent with his children; this demonstrates to me that he can harm vulnerable persons such as you. You do not have any support in Egypt, you would be left by yourself without protection.

CONCLUSION

[13]     Based on the analysis above, I conclude that you are a “Convention refugee”. Accordingly, I accept your claim.

(signed)           Julie Morin

September 20, 2019

Categories
All Countries India

2021 RLLR 38

Citation: 2021 RLLR 38
Tribunal: Refugee Protection Division
Date of Decision: December 15, 2021
Panel: Ayo Adetuberu
Counsel for the Claimant(s): Luciano G. Del Negro
Country: India
RPD Number: TC1-12301
Associated RPD Number(s): TC1-12302
ATIP Number: A-2022-00978
ATIP Pages: 000018-000026

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of XXXX XXXX XXXX (principal claimant) and XXXX XXXX XXXXX (minor claimant), citizens of India, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act”)1.

ALLEGATIONS

[2]       The specifics of these claims are stated in the narratives of the claimants’ Basis of Claim (BOC) form.2 In summary, the claimants allege that they cannot return to India because they fear being persecuted by the police based on their membership of a particular social group namely: family ties with XXXX XXXX – an XXXX involved in XXXX XXXX XXXX XXXX.

[3]       The principal claimant is XXXX XXXX XXXX. The police were allegedly seeking to arrest XXXX who hid in the claimants’ house before he left India on XXXX 2019. The suspicion that the claimants hid XXXX in their house resulted in police harassment against the claimants.

 [4]      On one of the raids by the police on XXXX 2019, the principal claimant was beaten, arrested, and sexually assaulted by the police after they discovered that she was in communication with XXXX. Subsequently, the principal claimant left India for Canada on XXXX 2019. After the principal claimant’s departure, the police raided the claimants house and harassed the minor claimant. The minor claimant was brought to Canada by his father on XXXX 2019, and together the principal and minor claimant made a refugee claim on October 17, 2019.

[5]       In rendering the decision and reasons, the panel considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution3 to ensure that appropriate accommodations were made in questioning the principal claimant, in the overall hearing process, and in substantively assessing the claims.

DETERMINATION

[6]       After considering the claimants’ testimony and the documentary evidence, the panel finds that the claimants are “Convention refugees” based on their membership of a particular social group: family ties with XXXX XXXX – an XXXX involved in XXXX XXXX XXXX XXXX.

ANALYSIS

Identity

[7]       The panel finds that the claimants’ identities as nationals of India are established on a balance of probabilities by the copies of their Indian passports4.

Credibility

[8]       Testimony provided under oath is presumed to be truthful unless there is a valid reason for doubting its truthfulness.5

[9]       In assessing the credibility of the evidence presented by the claimants, the panel accepts the allegations in the claim on a balance of probabilities. The claimants’ testimony was consistent, spontaneous, and was generally supported by personal documentary evidence. As such, the panel finds that the claimants have established the following facts on a balance of probability.

  • That XXXX is involved in XXXX XXXX XXXX XXXX based on the principle claimant’s testimony that he XXXX XXXX in the community.
  • That XXXX’s political stand forms the basis of police assault and harassment against the claimants.
  • That the police arrested and sexually assaulted the principal claimant on XXXX 2019, and as a result she sought medical attention at XXXX XXXX under the care of Dr. XXXX.
  • That the principal claimant and her husband are separated due to the ongoing issues with the police in India and the principal claimant’s testimony that their last communication was about two years ago.
  • That the police harassment has not only made the principal claimant fearful but also affected the mental state of the minor claimant.

[10]     The panel further notes that the claimant’s allegations are supported by personal documentary evidence which establish that the claimants face persecution because of their membership of a particular social group: family.

[11]     The panel finds no reason to doubt the authenticity of the documentary evidence that the claimants disclosed. The panel finds that the evidence supports and corroborates the claimants’ allegations and accords them full weight in establishing the basis of persecution, attacks and sexual assault against the claimants, and the forward-facing risk the claimants face should they return to India. Specifically, the panel referred to the following documents:

  • An affidavit dated 29-11-2021, by XXXX XXXX, the village sarpanch corroborating the basis of persecution, subsequent attacks and forward­ facing risk the claimants face should they return to India;6
  • An affidavit dated 01-12-2021, from the principal claimant’s parents, XXXX XXXX and XXXX XXXX corroborating the basis of harassment by the police, subsequent assaults, and the condition of affairs between the principal claimant and her husband7;
  • A copy of the doctor’s note from XXXX XXXX XXXX dated 30-11- 2021, by Dr. XXXX regarding the minor claimant’s diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX and the medication currently being administered8; and a copy of the note from the minor claimant’s school counsellor, XXXX about the minor claimant’s traumatic experience for the school year 2020-20219 corroborates the principal claimant’s testimony about the impact of the police harassment in India on the minor claimant.

Well-Founded Fear of Persecution

[12]     Item 12.4 of the NDP10 reports that Sikhs account for approximately 2% of the population in India. The report further states that communities that “advocate for and support a separate Sikh state or Khalistan” or challenge the power of the state government in religious matters, activists against Sikhs who are suspected of being “militant sympathizers” are “subject to monitoring and in some cases, detention and torture”. Objective country evidence further reveals that the status of women in India is not equal to that of men, and that gender-based violence is prevalent across India. 11

[13]     Item 1.5 of the NDP12 further reports that the ease with which an individual can relocate internally depends to a large degree on their individual circumstances, including whether they have family or community connections in the intended area of relocation, and their financial situation. According to the report, internal relocation is generally easier for men and family groups as local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.

[14]     The panel finds that the principal claimant testimony about the difficulty she will experience in renting as a single woman, her language and work skills, her responsibility to her son, and her age effectively described the difficulties experienced by persons perceived to supporters of Khalistan. The principal claimant’s testimony also confirms the experience of women in India based on their gender and has convincingly described her fears for future persecution because she is a woman.

[15]     The principal claimant’s subjective fear for her safety in India because she is a woman is supported by objective country evidence, which shows that similarly situated women in India are likely to be faced with serious threats such as rape, domestic violence, dowry related deaths and honour killings.13

[16]     The panel finds that the claimants have demonstrated, on a balance of probabilities, that they have a subjective fear of persecution in India that is objectively well founded.

State Protection

[17]     The panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that such protection is not available to them. This includes the principal claimant’s testimony that the state is the agent of persecution, and her sexual assault experience at the hands of the police. The panel finds that the principal claimant’s reluctance to seek police protection was reasonable in her circumstances.

[18]     The panel therefore finds that, based on a balance of probabilities, state protection is not available to the claimants.

Internal Flight Alternative

[19]     IFA analysis is a two-prong approach.14 In considering the identified IFAs, the panel is mindful that the Federal Court of Appeal has set a high threshold for the second prong of the IFA test in that “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant”.15 The jurisprudence is clear that the personal circumstances of the claimant must be central to the reasonableness analysis.16 The central question in the second prong of the test is whether expecting the claimants to relocate to the proposed IFA locations would be “unduly harsh”.17

[20]     The claimants bear the burden of proof. In this case, the panel has proposed IFAs in Mumbai or Rajasthan, India.

[21]     When asked if there was any reason, apart from the alleged agents of persecution, that she could not travel to and live in Mumbai or Rajasthan, the principal claimant testified that without a man in her life, she could not move to or live in the proposed IFAs. She testified that as a single woman, no one would rent her a place to live, because single women do not live on their own.

[22]     The principal claimant also testified that although she works in a XXXX in Canada, she has never worked in India, and would not be able to get a job without connections or the support of a man. She further testified that because of her separation from her husband, she has no one in India who would support or help her. The minor claimant who would have been able to support the principal claimant has also been diagnosed of XXXX XXXX XXXX XXXX XXXX XXXX which makes it difficult for him to focus on school.

[23]     The principal claimant testified that because they would not be able to find or afford housing in either of the IFAs, she would be forced to live on the street, which could subject her to sexual abuse at the hands of men.

[24]     Objective country evidence shows that single women in India need to depend on the goodwill of others to provide for them.18 This same evidence indicates that landlords do not want to rent to a single woman, as they are expected to live with a male relative. Other country evidence shows that domestic violence, which includes control, isolation, threats, and coercion, greatly increases the chances of an Indian woman becoming homeless, and that violence against homeless women in India is rampant.19

[25]     Based upon the claimants’ testimony and the objective country documentation, the panel finds that it is not reasonable for the claimants to seek refuge in Mumbai or Rajasthan. The principal claimant has no work experience in India. She is a victim of sexual assault by the police who are the people meant to protect her, her education level is low, she does not speak Hindi which is spoken at the IFA locations, and she has no employable skills to support herself in the IFA locations. She is currently separated from her husband and would have no family or friend support in any of the proposed IFAs to assist her with employment or housing. In addition, the principal claimant is responsible for the minor claimant who is undergoing XXXX XXXX XXXX XXXX XXXX XXXX XXXX.

[26]     In considering all of the circumstances that are particular to the claimants, the panel finds that they would not be able to successfully establish herself in India. The panel is also mindful of the Chairperson’s Guideline 9, Women Refugee Claimants Fearing Gender-Related Persecution, and the fact that expecting the claimants to relocate to an IFA, given their particular circumstance, would subject them to a risk of homelessness, and related sexual violence and other forms of violence addressed in the referred guideline. This would make the claimants’ relocation to one of the proposed IFAs unduly harsh.

[27]     Because the panel has found that relocating to one of the proposed IFAs would be unduly harsh for the claimants, there is no need to analyze the first prong of the IFA test. The panel finds that, based on a balance of probabilities, the claimants do not have a viable IFA in India.

CONCLUSION

[28]     Having considered all the evidence, including the claimants’ testimony, the panel finds that the claimants face a serious possibility of persecution in India as members of a particular social group, fearing persecution due to their membership in a family.

[29]     Therefore, the panel finds that the claimants are “Convention refugees” pursuant to section 96 of the IRPA.

[30]     The panel accepts their refugee claim.

(signed) Ayo Adetuberu

December 15, 2021

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

2 Exhibit 2, Basis of Claim Form (BOC)

3 Immigration and Refugee Board of Canada (IRB) Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB. December 2012

4 Supra note 2

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

6 Exhibit 5 – Disclosure Documents received on December 2, 2021, item Cl

7 Ibid., item C3-C6

8 Ibid., item C7

9 Ibid., item CS

10 Exhibit 3 National Documentation Package (NDP), India, 30 June 2021, tab 12.4

11 Ibid., item 5.2

12 Ibid., item 1.5

13 Ibid., item tab 5.6

14 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).

15 Ranganathan v. Canada (MCI), 2000 CanLII 16789, at para 14.

16 Supra, note 8.

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

18 Exhibit 3 NDP for India, 30 June 2021, item 5.11

19 Ibid., item 5.2

Categories
All Countries China

2020 RLLR 132

Citation: 2020 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2020
Panel: Suraj Balakrishnan
Counsel for the Claimant(s): Carla Sturdy
Country: China
RPD Number: TB9-09017
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000103-000106

DECISION

[1]       MEMBER: This is a decision for [XXX] claim for refugee protection.

[2]       You are claiming to be a citizen of China and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered all of the evidence including your testimony and the other evidence in the case and I am ready to render my decision orally.

[4]       I find that you are a Convention refugee on the grounds of being a Falun Gong practitioner for the following reasons.

[5]       The specifics of your claim are set out in the narrative of your Basis of Claim form as amended.

[6]       You allege the following:

[7]       You are a citizen of China and you fear persecution from Chinese authorities because you are a Falun Gong practitioner.

[8]       You allege that if you return the Chinese authorities will persecute you.

[9]       You allege that there is no state protection for you or an internal flight alternative.

[10]     Your personal identity as a citizen of China has been established by your testimony and the supporting documents file in the exhibits including a certified true copy of your Chinese passport.

[11]     I find that on a balance of probabilities that identity and country of reference have been established.

[12]     I find that there is a link between the harms that you fear and the Convention ground of particular social group.

[13]     This claim will therefore be assessed under Section 96.

[14]     The test under Section 96 is whether there is a serious possibility of persecution should you return to China and I have found that you have met that test.

[15]     When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary.

[16]     You have been entirely consistent and credible in your evidence.

[17]     The claimant demonstrated a solid understanding of, and commitment to, Falun Gong practice and philosophy.

[18]     There have been no relevant contradictions or omissions that would go to the core of your claim.

[19]     In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and your Basis of Claim form as amended.

[20]     These claims were corroborated through a support letter from a fellow practitioner as well as photos of the claimant participating in Falun Gong practice and a rally in support of Falun Gong practitioners.

[21]     There’s no reason for me to cast any doubt on the veracity of these documents and as such I place good weight on them to support your allegations and claim.

[22]     Specifically, you established on a balance of probabilities that you are a Falun Gong practitioner and that Chinese authorities warned you against being a Falun Gong practitioner.

[23]     I therefore find that your subjective fear is established by your credible testimony and I believe what you have alleged on a balance of probabilities.

[24]     The documentary evidence confirms that Chinese authorities have pursued nationwide sanctions against Falun Gong practitioners since 1999.

[25]     Amnesty International describes the state’s actions as a long-term campaign with intimidation and persecution.

[26]     The documentary evidence states that the Chinese government has carried out an unprecedented campaign against practitioners including detaining a large number of believers and abusing them in detention.

[27]     The documentary evidence states that Falun Gong adherents in China face harassment, imprisonment, and torture.

[28]     The campaign against Falun Gong has been characterized as brutal and systemic persecution; the systemic process of imprisonment without trial, escalating torture, and the murder of thousands of innocent people.

[29]     The Chinese government views Falun Gong as being an enemy of mankind and confirms the existence of re-education facilities in order to rid people who practise Falun Gong – of the obsession with what they allege to be a cult.

[30]     Based on the credible evidence provided by you with respect to your Falun Gong activities both in China and in Canada as well as the country documentation on file, I find that your fear of persecution in China at the hands of the Chinese government is objectively well-founded.

[31]     It is state authorities who have outlawed the practice of Falun Gong whom you fear. I therefore find it objectively unreasonable for you to seek the protection of the state.

[32]     I further find that the agent of persecution is the state and they are in control over the whole state.

[33]     So, I find that there is a serious possibility of persecution throughout the country and that there is no internal flight alternative for you.

[34]     Based on the foregoing analysis, and considering the totality of the evidence before me, I conclude that you are Convention refugee because you face a serious possibility of persecution in China.

[35]     I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2020 RLLR 128

Citation: 2020 RLLR 128
Tribunal: Refugee Protection Division
Date of Decision: January 16, 2020
Panel: A. Casimiro
Counsel for the Claimant(s): Stacey Margaret Duong
Country: China
RPD Number: TB8-33095
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000077-000083

REASONS FOR DECISION

[1]       [XXX] (“the Claimant’) makes a claim for refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act (“IRPA”).

ALLEGATIONS

[2]       The Claimant’s allegations are fully set out in his Basis of Claim form[1] and in his testimony. He alleges that he is a citizen of the People’s Republic of China and that he fears persecution by the Chinese government because he is a Falun Gong practitioner.

[3]       One of the Claimant’s co-workers died as a result of a workplace accident. The Claimant became very sad and started to develop sleeping problems. He had nightmares and dreamed about his co-worker. As a result, the Claimant woke up feeling very exhausted and depressed. He was suffering from right arm pain and was diagnosed with a shoulder muscle spasm. A friend learned about his health situation and introduced him to Falun Gong.

[4]       His friend told him that Falun Gong could help him. He explained to him the basic principles of Falun Gong, and he urged him to give it a try.

[5]       His friend agreed to teach him privately and he began to learn from him on [XXX] 2017. He experienced improvements for his condition after about two months of practicing Falun Gong with his friend.

[6]       The Claimant then decided to join the group practice with his friend on [XXX] 2017. He went to practice with the group once a week. However, the group experienced a problem on [XXX] 2018.

[7]       They found out that two members from another group of practitioners in their town were arrested by the police (“PSB”). As a result, the group suspended their practice. All the members were advised to go into hiding.

[8]       The Claimant went to hide at his wife’s cousin’s place. While in hiding, the Claimant discussed the situation with his family. The family decided that the Claimant should leave China for safety. The Claimant then used the services of a smuggler to help him get out of China.

[9]       The smuggler flew with the Claimant from Beijing to Toronto on [XXX] 2018.

[10]     After arriving in Canada, the Claimant hoped to return back to China, if the situation improved. However, he learned from his wife that the PSB came to his home to look for him. They asked his wife for his whereabouts.

[11]     His wife also learned that the group’s leader was arrested. The PSB returned to their home and left a summons for the Claimant.  The PSB also went to the homes of his close relatives to look for him.

[12]     As a result, the Claimant made a claim for refugee protection. Since arriving in Canada, he also joined a Falun Gong group.

[13]     The PSB continues to look for the Claimant in China. He fears arrest, detention and abuse if he is to return to China on account of his Falun Gong practice. The Claimant also wishes to continue practicing Falun Gong freely, which is something he could not do in China.

DETERMINATION

[14]     The panel finds that the Claimant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his membership in a particular social group as a Falun Gong practitioner.

ANALYSIS

Identity

[15]     The Claimant explained that the smuggler took his passport upon arriving in Canada as he still owed money at that time. The Claimant to this date, had failed to pay the remaining balance owing to the smuggler. He did attempt to recover his passport by trying to contact the smuggler through a relative, however they had lost contact with the smuggler. To date, he had not secured the return of his passport. However, based on his original Resident Identity card and Hukou, which were presented at the hearing and which are contained in Exhibit 6, the panel finds that the Claimant is a citizen of China and he is who he says he is on a balance of probabilities.

Credibility

[16]     The Claimant’s testimony regarding his introduction to Falun Gong, his Falun Gong practice in China, as well as his Falun Gong practice in Canada were consistent with his other evidence.

[17]     He testified that his initial hope was to return to China but after he found out from his wife that the PSB came to his home to look for him, he knew that he can no longer return to China. He testified that the PSB left a summons for him as per Exhibit 6. He also testified about the continued interest of the authorities in him back in China.

[18]     The panel notes that the Claimant claims to be a Falun Gong practitioner since [XXX] 2017. The Claimant testified that Falun Gong is a dual cultivation system. He testified about how Karma in our body creates illness and how Falun Gong could help transform Karma into Virtue (black substance transformed into white substance).

[19]     He testified about the concept of attachments and getting rid of personal attachments. He described how his friend showed him the Falun Gong exercises. He testified about some of the challenges he faced when learning the exercises. He testified that there is a total of five exercises. In the course of his testimony, he identified the first and second exercises.

[20]     He elaborated on how Karma is accumulated and how to get rid of its effects. He testified about the principles of Truthfulness, Compassion and Forbearance and how he applies these to his daily life. He talked about increasing one’s mind/nature.

[21]     He talked about Master Li Hongzhi and the Zhuan Falun. He testified about how his group in China had no access to the Zhuan Falun but instead utilized photocopies as part of their study. He also identified other books that are important to Falun Gong practitioners.

[22]     The Claimant also testified about his Falun Gong practice here in Canada. He testified about how he was introduced to a group of practitioners in Canada. The Claimant continues to practice the exercises at the park, he also attends a group to study the Zhuan Falun and he also distributes Falun Gong materials.

[23]     The Claimant’s profile as a Falun Gong practitioner was also supported by a number of photos depicting his practice in Canada and two letters from fellow practitioners.[2] The panel notes that the photographs appear to have been taken at numerous locations and times.

[24]     Similarly, the panel asked him why he continues to practice Falun Gong despite recovering from his health issues. He testified that practicing Falun Gong is a lifelong commitment and that one doesn’t stop practicing just because one gets/feels better.

[25]     The panel finds on a balance of probabilities that the Claimant is a genuine Falun Gong practitioner. He has a genuine desire and plans to continue his practice of Falun Gong into the future.

Well-Founded Fear of Persecution

[26]     The documentary evidence is clear that Falun Gong practitioners face persecution in China. Falun Gong is banned as an illegal group in China and the country conditions evidence is consistent in its reports that Falun Gong practitioners face arrest and even torture, according to several credible sources.[3]

[27]     Exhibit 3, Item 1.7 which is the United Kingdom’s Operational Guidance Note, discusses that Falun Gong practitioners over the years have been tortured, harassed, arbitrarily detained, imprisoned, and have faced other serious restrictions on their right to freedom of expression.

[28]     It explains that the Falun Gong movement has been outlawed in China, and the State regards it as an evil cult. Falun Gong practitioners have reportedly been subjected to detention, ill­ treatment, and it states that the risk of ill-treatment escalates significantly when a practitioner engages in activities that are reasonably likely to bring them to the notice of authorities. This includes the public practice of Falun Gong exercises, recruitment of new members, and dissemination of Falun Gong information. The risk of ill-treatment also increases when a person ignores a warning against continuing Falun Gong activity.

[29]     Exhibit 3, Item 2.1 the United States Department of State Report indicates that practitioners of Falun Gong reported systematic torture.

[30]     Exhibit 3, Item 12.2, indicates that the Chinese government has banned Falun Gong and labelled it an “evil cult”. Authorities regularly target Falun Gong practitioners and force them into labour camps. In detention, they suffer sexual assault, torture, violence and organ harvesting.

[31]     Therefore, the Panel finds that the Claimant’s fear is a well-founded one supported by personal and objective evidence.

[32]     The panel finds that the Claimant is a genuine Falun Gong practitioner on a balance of probabilities, and so he would face a serious possibility of persecution if he were to return to China.

State Protection

[33]     As the state is the agent of persecution, adequate state protection would not be available to the Claimant.

Internal Flight Alternative

[34]     Given that the Claimant is a genuine and ongoing Falun Gong practitioner, even if he were to relocate, his risk remains the same as the State’s control exists all over China.   Since the agent of persecution is the state, there is no internal flight alternative for the Claimant, as there is a serious possibility of persecution throughout the country.

CONCLUSION

[35]     For the above reasons, the panel finds that the Claimant is a Convention refugee, as he holds a well-founded fear of persecution on the basis of his membership in a particular social group, as a practitioner of Falun Gong. His claim is therefore accepted.


[1] Exhibit 2.

[2] Exhibit 6.

[3] Exhibit 3, National Documentation Package for China (20 December 2019) Items 2.1, 12.22 and 12.23.

Categories
All Countries Nigeria

2020 RLLR 120

Citation: 2020 RLLR 120
Tribunal: Refugee Protection Division
Date of Decision: February 14, 2020
Panel: Harsimran Kaur
Counsel for the Claimant(s): Clémence Marie Camille Chevalier
Country: Nigeria
RPD Number: MB8-04564
Associated RPD Number(s): MB8-04594, MB8-04612
ATIP Number: A-2021-01106
ATIP Pages: 000007-000018

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the Panel) in the claims for refugee protection of [XXX] (the principal claimant), his wife [XXX] (the associated claimant), and their minor daughter [XXX] (the minor female claimant), citizens of Nigeria. They claim refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).[1]

[2]       Prior to the start of the hearing, the Panel appointed the principal claimant as the designated representative for the minor female claimant.

[3]       In reaching its decision, the Panel took into consideration the Chairperson’s Guidelines No. 4 on Women Refugee Claimants Fearing Gender Related Persecution.[2]

ALLEGATIONS

[4]       The claimants’ detailed allegations are contained in the principal claimant’s Basis of Claim form (BOC)[3] and in the revised narrative, dated [XXX] 2020.The associated and the minor female claimant has adopted the allegations of the principal claimant.

[5]       The principal claimant fears being initiated into a cult because of a promise made by his father, to the cult members, whereby the father had nominated the principal claimant as his successor in the cult.

[6]       The principal claimant was unaware of his father’s cult membership and the promise. During his father’s burial ceremony, on the [XXX] 2010, while the principal claimant and his family were waiting for the Imam to perform the prayer, three cult members, dressed in traditional cult attire, suddenly arrived in his house and demanded to perform the burial as per their own traditions and left after singing some religious incantations and this was the first time that the principal claimant learnt of his father’ s cult association.

[7]       On the principal claimant’s wedding night, on [XXX] 2014, five cult members came to the house of the principal claimant and gave him a parcel which revealed that he has been promised by the father to the cult and that he should prepare himself for the initiation otherwise dire consequences await him.

[8]       The same cult members came back again on the naming ceremony of the minor female claimant on [XXX] 2015 and reminded the principal claimant that they hope his next child is a male child so that they could offer the male child as a sacrifice and initiate the principal claimant into the cult.

[9]       The principal claimant unequivocally told them about his disinterest in becoming a cult member and shortly thereafter, he started receiving threatening calls, which continued despite the claimants’ relocation from Ibadan to Oshogbo in Osun State.

[10] Besides the cult members, the claimant’s also fear [XXX], the current wealthy and influential family head with strong business ties, who has been strongly forcing and pressuring the claimants to perform Female Genital Mutilation (FGM) on the minor female claimant as per the traditional beliefs to uphold the family dignity and honour.

[11]     [XXX] made two unsuccessful kidnapping attempts on the minor female claimant, the first being on [XXX] 2017 and the second on [XXX] 2017.

[12]     The principal and the associated claimant further allege that they are both being personally targeted by [XXX] and his henchmen because of their non-compliance with the practice of FGM.

[13]     Fearing for their lives, the claimants left Nigeria on [XXX] 2017, were in the United States (US) until [XXX} 2018 and claimed asylum upon arrival in Canada.

DETERMINATION

[14]     The Panel has considered all of the evidence and finds that the claimants have established that they face a serious possibility of persecution under section 96 of the IRPA, for the minor female claimant on the basis of her membership in a particular social group, namely girls fearing female genital mutilation (FGM) and for the principal and the associated claimant on the basis of their membership in a particular social group – family, particularly, Nigerian parents refusing to subject their daughter to FGM. Accordingly, the Panel concludes that they are all “Convention refugees” pursuant to section 96 of the Act.

ANALYSIS

Identity

[15]     The claimants’ personal and national identities as citizens of Nigeria are established, on a balance of probabilities, by their testimony and by the documentary evidence on file, including copies of their Nigerian passports.[4]

Nexus

[16]     With respect to the female minor claimant, the Panel finds that there is a link: between her fear and one of the five Convention grounds, as a member of a particular social group of women or girls fearing FGM in Nigeria. For the principal and the associated claimant, as the parents of the minor female claimant, there is a link with their membership in a particular social group, family. Accordingly, their claims have been assessed under Section 96 of the Act.

Credibility and subjective fear

[17]     Testimony provided under oath is presumed to be truthful, unless there are reasons to doubt its truthfulness.[5] In the present case, the Panel has no such reason. The Panel finds the claimants to be credible witnesses and believes, on balance of probabilities, the key allegations of their claim. Their testimony was spontaneous, straightforward, direct and internally coherent with the documentary evidence on file and there were no significant contradictions, inconsistencies or omissions between the written and oral testimony. They were both spontaneous in their answers and the Panel did not find that they tried to embellish or exaggerate their narratives.

FGM of Minor Female Claimant

[18]     The claimants testified in detail about the pressure and threats they received from the family head [XXX], to have their daughter subjected to FGM, as well as the importance of FGM to the family of principal claimant. The principal claimant credibly alleges that he comes from a family that adheres to traditional beliefs regarding performing FGM on every girl child of the family from the age two (2) and older.

[19]     The principal claimant provided a comprehensive testimony of the events as they unfolded starting from [XXX] 2016 until the claimants’ departure from Nigeria. He testified that he was invited by [XXX] for a family meeting on [XXX] 2016, and it was during this meeting, the family members offered to the principal claimant the choice of choosing a date for performing FGM on the minor female claimant and when he refused to pick a date for the circumcision, [XXX] called the principal claimant towards the end of [XXX] 2016 and told the principal claimant that [XXX] 2017, is the date fixed for the circumcision of the minor female claimant.

[20]     The principal claimant further testified that when he did not take the minor female claimant for circumcision on the fixed date, the family members namely [XXX] and [XXX], at the behest [XXX], attempted to kidnap the minor female claimant from her house on [XXX] 2017. The associated claimant credibly testified how she was slapped on her ear by [XXX] while she was trying to rescue the minor female claimant from the kidnapper and that the whole situation was defused when their neighbor, [XXX], interjected to save the minor female claimant.

[21]     The claimants’ testimony is further corroborated by the affidavit of [XXX][6], their neighbor and the Panel accords full probative value to the said document.

[22]     The principal claimant went on to explain that out of fear they decided to relocate to Oshogbo, Osun State but on [XXX] 2017, [XXX], posing to pick the minor female claimant from her school, went to the school in an attempt to kidnap her and the situation was brought under control only when the proprietor of [XXX] School called the principal claimant, seeking his permission to allow the female minor claimant to go with [XXX]. The principal claimant further described how [XXX] was chased away by the school authorities after the principal claimant refused to give his consent allowing [XXX] to pick minor female claimant from the school. The associated claimant testified that she too got a call from the para educator of the minor female claimant, asking if the associated claimant is aware that the minor female claimant will be picked by [XXX]. The claimant’s oral testimony is keeping in line with their written testimony and is further corroborated by the letter from the proprietor of [XXX] School[7]. The Panel accords full weight to this document.

[23]     The principal claimant further testified that on [XXX] 2017, [XXX] called him and unambiguously told him that either they should bring the minor female claimant to the family or the family will eliminate them in order to perform the circumcision of the minor female claimant, thereby protecting and upholding the tradition of the family. From that time forward, the claimants realized that they would not be safe in Nigeria and they ramped up their efforts to leave the country. The principal claimant’s testimony is corroborated by the affidavit of his mother-in-law[8] and his aunt[9].

[24]     Thus, in light of the two failed kidnapping attempts of minor female claimant by [XXX] and the threatening phone call on [XXX] 2017, the Panel concludes that, on balance of probabilities, [XXX] is interested in performing FGM on the minor female claimant.

Objective basis

[25]     The principal claimant’s allegations are consistent with the objective documentary evidence on FGM in Nigeria. The documentary evidence indicates that the practice of FGM ‘continues to thrive’ and is widespread in Nigeria, such that several thousand girls and women are subjected to it, despite the passing into law of the Violence against Person’s (Prohibition) Act (VAPP)[10].

[26]     The documentary evidence states that decision to subject a girl to FGM in Nigeria is up to the girl’s parents.[11] Though the tradition varies from one ethnic tribe to another, but the evidence indicates that the involvement of family members is a common feature.

[27]     According to the said documentary evidence[12], parents are free to oppose the rituals but then it goes on to explain that refusals come with consequences such as ostracism, stigmatization, blackmailing, denial of intracultural benefits and physical abuse.

[28]     The principal claimant testified that [XXX] and other members of his family believe that if a girl is not circumcised, she will grow up to be a prostitute and will bring defame to the family and that if anything untoward happens in the family, for instance, if there is a death in the family or somebody has an accident, or someone loses a job, has a broken marriage or if somebody’s child failed an exam, the claimants will be blamed for the unfortunate events which will give [XXX] and the family an impetus to hunt down the claimants.

[29]     Thus, the Panel concludes, on balance of probabilities, that [XXX] and other family members are capable of forcing FGM on minor female claimant despite the opposition of the principal and associated claimant.

STATE PROTECTION

[30]     For the reasons below, the Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the state of Nigeria would be unable or unwilling to provide the claimants with adequate state protection.

[31]     The principal claimant was asked if he had made a police complaint about the two failed kidnapping attempts of the minor female claimant by [XXX]. He testified that making a police complaint would have yielded no results as [XXX] is a wealthy businessman, is politically well-connected and would have used the clout to get away with the complaint. The principal claimant went on to explain that considering it’s a family matter, police would have been reluctant to intervene had he complained.

[32]     The Panel finds the principal claimant’s explanation reasonable. Moreover, the objective evidence also indicates that the police response to traditional or customary matters is typically non-­interventionist. The research provides that “in practice, people cannot necessarily rely on the police” and it is the custodians of cultural or traditional rites that ultimately determine the fate of the individual”.[13]

[33]     The Violence against persons (Prohibition) Act, 2015, is the federal law attempting to prohibit FGM across the whole county. The VAPP Act aims at eliminating gender-based violence in private and public life by criminalizing and setting out the punishment for acts including rape (but not spousal rape), incest, domestic violence, stalking, harmful traditional practices, and FGM. However, the VAPP Act is only in effect in the Federal Capital Territory, and as such, the remaining states must pass legislation to implement it across the country.[14] The documentary evidence further states that state governments have, to date, been slow to respond to the introduction of the VAPP Act. As of June 2018, only 13 states had adopted anti-FGM legislation.[15]

[34]     Despite the legislation, however, the documentary evidence indicates that the practice of FGM continues to thrive in Nigeria.[16] There have been no prosecutions of perpetrators of FGM in Nigeria since the passing of the legislation.[17] The documentary evidence also provides that it is extremely difficult for women and girls to obtain protection with respect to FGM, and that there is widespread community support for these practices and the traditional attitude of police help to support them.[18] Accordingly, the Panel finds that despite there being laws prohibiting FGM in Lagos and Abuja and in certain other states, these laws are not being enforced such that the claimants could reasonably expect adequate state protection from FGM in Nigeria.

[35]     Given the evidence, the Panel finds, on a balance of probabilities, that adequate protection would not be provided to the minor female claimant or to the claimants for objecting to the practice, in Nigeria.

Internal Flight Alternative (IFA)

[36]     At the hearing, the Panel identified Abuja, Port Harcourt, and Lagos as potential IFA locations (together, the “IFA locations”). However, the Panel finds that the claimants face a serious possibility of persecution throughout Nigeria. The Panel has considered the Jurisprudential Guide in the Refugee Appeal Division (RAD) decision TB7-19851 but after careful consideration, the Panel does not view the circumstances of this case as an appropriate one to apply Jurisprudential guide given the far reach and influence of [XXX].

Means available for [XXX] to find claimants in Port Harcourt, Abuja and Lagos

[37]     The principal claimant testified that [XXX] has an [XXX] business which is operated from Port Harcourt, has a wife, kids and a half-brother in Port Harcourt and that the claimants can run into them in a mall, hospital, park or any other public place and there could also be a possibility of [XXX] kids and minor female claimant attending the same school. Because of all this, it will be very easy for [XXX] to find the claimants in Port Harcourt. The principal claimant further credibly alleged that [XXX] can also use power and connections to track down the claimants in Port Harcourt.

[38]     Furthermore, the principal claimant testified that he has many family members in Abuja, with whom he can have a coincidental encounter at a bank, shopping mall or a gas station and then they can always let pass [XXX] know that claimants are in Abuja who can then kill or harm them or kidnap the minor female claimant.

[39]     The principal claimant also explained that since Lagos is close to Ibadan and he has brothers and sisters living there, it will be easy for [XXX] to track him down there. He provided the example of how after the shop of one of his brother’s got burnt, the claimants were blamed for the torching of the shop because of their refusal to comply with traditional practice of performing FGM on the minor female claimant. He went on to explain further that incidents like these can be an impetus for the extended family to disclose the claimant’s location in Lagos to [XXX] if the claimants relocate to Lagos.

[40]     Moreover, after their relocation to Oshogbo in [XXX] 2017, [XXX] was not only able to find the claimants but also attempted to kidnap the minor female claimant on [XXX] 2017.

[41]     Hence, the Panel concludes that, on balance of probabilities, [XXX] has the means to find the claimants in Port Harcourt, Abuja and Lagos.

Motivation to find the claimants

[42]     The principal claimant explained that [XXX], despite considering himself to be a guardian of traditional and family practises, has a vested interest in performing FGM of the minor female claimant since [XXX] wants to be a king and the kingmakers might use against [XXX] the fact that a girl from his own family has not been circumcised and that if he cannot make his own family adhere to their traditional beliefs and customs, [XXX] cannot be a good king.

[43]     The principal claimant’s testimony is further buttressed by the affidavit from [XXX][19], mother-in-law of the principal claimant and the affidavit of [XXX][20], aunt of the principal claimant. Both these affidavits mention the constant threats hurled at them by [XXX] because of their alleged complicity with the claimants, vis-à-vis their refusal to subject the minor female claimant to FGM.

[44]     Hence, the Panel concludes that, on balance of probabilities, [XXX] has the means and motivation to find the claimants in Port Harcourt, Abuja and Lagos.

[45]     Thus, the Panel concludes that because the agent of persecution has the means and the motivation to find the claimants anywhere in Nigeria, there is no viable IFA in Nigeria for them. Furthermore, the Panel notes the absence of state protection for traditional practices and FGM throughout Nigeria.

[46]     Accordingly, the Panel finds that the possibility of an IFA fails on the first prong.

CONCLUSION

[47]     Having considered and assessed the evidence in totality, the Panel concludes that the minor female claimant has established a serious possibility of persecution in Nigeria based on her membership in particular social group, Nigerian female fearing FGM.

[48]     The Panel also concludes that the principal and the associated claimant have established a serious possibility of persecution in Nigeria based on their membership in particular social group, namely family; in particular, Nigerian parents refusing to subject their daughter to FGM.

[49]     The Panel finds that the claimants are Convention refugees within the meaning of Section 96 of the Act.

[50]     The Panel, therefore, accepts their claims.

[51]     Since the Panel has found the claimants to be Convention Refugees within the meaning of Section 96 of the Act, the Panel does not deem it necessary to make an analysis of the fear of the principal claimant stemming from his refusal to be initiated in a traditional Yoruban cult, under section 96 and subsection 97(1) (b) of the Act.


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

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

[3] Document 1 — Basis of Claim forms (BOC).

[4] Document 3 — Idem.

[5] Moldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).

[6] Document 4 — Exhibit P 10: Affidavit of [XXX].

[7] Document 4 — Exhibit P-6: Letter from [XXX] School.

[8] Document 4 — Exhibit P-7: Affidavit of [XXX].

[9] Document 4 — Exhibit P-8: Affidavit of [XXX].

[10] Document 3 — National Documentation Package (NDP), Nigeria, 29 November 2019, tab 5.21: Response Immigration and Refugee Board of Canada. 25 January 2016. NGA105404.E.

[11] Document 3 – NDP, Nigeria, 29 November 2019, tab 5.12: Response to an information request. Immigration and Refugee Board of Canada. 29 October 2018. NGA106183.FE.

[12] Idem.

[13] Document 3 — NDP, Nigeria, 29 November 2019, tab 10.8: Response to an information equest. Immigration and Refugee Board of Canada. 14 November 2016. NGA105659.E.

[14] Idem.

[15] Document 3 — NDP, Nigeria, 29 November 2019, tab 5.22: Country Profile: FGM in Nigeria. 28 Too Many. October 2016.

[16] Supra, note 11.

[17] Supra, note 13.

[18] Idem.

[19] Document 4 — Exhibit P7: Affidavit from [XXX].

[20] Document 4 — Exhibit P8- Affidavit from [XXX].


Categories
All Countries India

2020 RLLR 98

Citation: 2020 RLLR 98
Tribunal: Refugee Protection Division
Date of Decision: 11 March 2020
Panel: Jack Davis
Counsel for the Claimant(s): El Farouk Khaki
Country: India
RPD Number: TB8-09278
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000083-000090

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX] (the claimant), a citizen of India. She fears persecution in India due to the inter-relationship of three factors: She is HIV-positive, she is a single female and she is of the Muslim faith.

Credibility

[2]       The claimant provided a comprehensive narrative of what had happened to her in India in the form of a sworn affidavit consisting of 81 paragraphs over 15 pages. I find the information contained in this detailed affidavit to be credible and trustworthy evidence, for three main reasons.

[3]       First, the claimant’s testimony was consistent with the affidavit and there were no contradictions, omissions or embellishments.

[4]       Second, I find it very hard to believe that any person would have the perspicacity to conjure up a false story of such length and detail and then be able to memorize same in order to ‘correctly’ answer questions regarding same.

[5]       Third, I have before me in evidence many items of corroborative documentary evidence. Before me are documents confirming the claimant’s: marriage and divorce;[1] the deaths of the claimant’s parents;[2] the claimant’s miscarriage;[3] the claimant’s acting career;[4] and diagnosis as HIV-positive.[5]

[6]       In view of the foregoing, I find the claimant to have been a credible and trustworthy witness and accept her account of her experiences in India as being the truth.

Well-founded Fear of Persecution

[7]       In the documentary evidence that is before me, I note the following with respect to persons who are HIV-positive in India:

The stigma of AIDS’ might sound like a phrase from another era but in India anyone who is HIV-positive or has AIDS continues to feel the whiplash of contempt and discrimination from the moment their condition is discovered.[6]

The latter is a mammoth task as both teachers and parents of the other children often rise up in disgust at the idea of having HIV-positive children in the same classroom. Mohanty says the hostility has not softened much ever since the case of Bency and Benson in Kerala caught the headlines. These two young siblings were left orphaned after their parents died of AIDS in 2000. Their grandparents continued raising them but when other parents heard of their condition, they forced the school to expel them.[7]

Mohanty thinks it will take “decades and decades” before most Indians treat those with HIV/AIDS fairly. Attitudes are changing, she concedes but far too slowly. She speaks of the Hyderabad landlord who, unusually, agreed to let the Desire Society rent his building to use as a home for the orphans. After a few years, Desire was able to buy some land and build its own home. It then vacated the building.   “That landlord will curse us every day for the rest of his life. No one has been willing to rent the house since we moved out, just because our HIV-positive children, who have done nothing wrong, lived there,” she said.[8]

According to the plea, the patient had suffered an accident on August 9, 2017 following which he went to Babu Jagjivan Ram Hospital. However, one doctor Rajesh abused him for not revealing his HIV status and also referred him to the OPD department where he was given first aid treatment and his leg was plastered by them leading to formation of blisters and a possibility of development of gangrene. On August 30, 2017, the patient was referred for treatment to LNJP hospital due to non-availability of implants at Babu Jagjivan Ram. However, even LNJP failed to provide any treatment even though the referral slip mentioned the need of immediate surgery and discharged him after giving only first aid treatment and raw plaster. Following this, he got himself treated at a private hospital while refused by several others because of his HIV status.[9]

On October 5, a 27-year-old HIV-positive woman hanged herself from a pipe in Hyderabad’s Osmania General Hospital …  In another incident last month, doctors declared a 24-year-old pregnant woman admitted to Tikamgarh district hospital in Madhya Pradesh a ‘human bomb’ after she tested positive for HIV, the virus that causes AIDS. The confidential pathology report was leaked by the lab technician and within hours, everybody from the doctor to the nurse and the ward boy refused to treat her. She finally delivered twins, who died within 30 minutes of birth, unattended on the ward floor.[10]

In Uttar Pradesh’s Bareilly district last year, an HIV-positive woman delivered a stillborn after a hospital in neighbouring Badaun refused to treat her because she didn’t have Rs 2,000 to buy gloves for the hospital staff. Discrimination in both government and private health centres and hospitals is rife across states, say people living with HIV and AIDS (PLHA). “Paramedics and nursing staff and in some cases even doctors often refuse to take care of HIV+ patients,” said Swapan Mallick (name changed), who has HIV and works with Bengal Network of PLHAs.[11]

India’s fight against AIDS is being jeopardised by a cut in social spending by Prime Minister Narendra Modi’s government, with health workers being laid off and programmes to prevent the spread of the deadly disease curtailed.[12]

The year 2016 marks the 30th anniversary of the first known case of HIV in India. While the number of new HIV infections in India declined by 25 percent from 2005 to 2013, the stigma of the disease remains strong.[13] [emphasis added]

In India, the stigma of HIV remains fierce. There are no Indian public figures such as Magic Johnson or Charlie Sheen who have made HIV more acceptable. Small “pocket epidemics” continue to emerge and several states in India have disproportionately high prevalence rates, reaching as high as 30 percent in some communities.[14] [emphasis added]

[8]       With respect to Muslims in India, the following from the documentary evidence is instructive:

Across India, students at other universities were organizing similar rallies against the Citizenship Amendment Act — a key policy of Prime Minister Narendra Modi’s Hindu nationalist government. The law offers amnesty to undocumented migrants from three neighboring Muslim-majority countries — but only if they are non-Muslim. Critics say that by excluding Muslims, the law establishes a religious test for Indian citizenship, in violation of the secularism enshrined in India’s constitution. On Dec. 15, Renna and hundreds of her classmates were marching and waving protest banners on the campus of Jamia Millia Islamia, a historically Muslim university, when they came under attack by police. They had avoided a barricade and taken another route “because we wanted to make it a peaceful kind of thing,” she recalls. “But what we saw next was complete brutality. Police started chasing the protesters and beating them up.”[15]

Since mid-December, demonstrations have erupted across India, in communities of all faiths. The biggest police crackdowns have occurred in predominantly Muslim areas and human rights organizations say police have used excessive force.[16]

The death toll in the worst religious violence to hit India’s capital in decades has risen to at least 37, health officials said. The violence was triggered after Muslims protesting against a discriminatory citizenship law were attacked by Hindu mobs. More than 200 people have been injured during four days of violence in Muslim-populated areas of northeast Delhi, with police accused of looking the other way as a mob on Sunday went on the rampage, killing people and damaging properties, including mosques.[17]

The deadly religious riots that have swept parts of the Indian capital are proving that women and children are often the most vulnerable victims in any conflict, writes the BBC’s Geeta Pandey in Delhi. The violence in north-east Delhi has left more than 40 people dead and the victims include both Hindus and Muslims. For the thousands of Muslim women and children left homeless, the future appears bleak.[18]

Societal violence based on religion and caste and by religiously associated groups continued to be a serious concern. Muslims and lower-caste Dalit groups continued to be the most vulnerable.[19]

There were reports by nongovernmental organizations (NGOs) that the government sometimes failed to act on mob attacks on religious minorities, marginalized communities and critics of the government. Some senior officials of the Hindu-majority Bharatiya Janata Party (BJP) made inflammatory speeches against minority communities. Mob attacks by violent extremist Hindu groups against minority communities, especially Muslims, continued throughout the year amid rumors that victims had traded or killed cows for beef. According to some NGOs, authorities often protected perpetrators from prosecution.[20]

Yet, this history of religious freedom has come under attack in recent years with the growth of exclusionary extremist narratives–including, at times, the government’s allowance and encouragement of mob violence against religious minorities–that have facilitated an egregious and ongoing campaign of violence, intimidation and harassment against non-Hindu and lower-caste Hindu minorities. Both public and private actors have engaged in this campaign.[21]

[9]       With respect to the fact that the claimant is a single woman and a Muslim one who is HIV-positive, the following from the documentary evidence is of relevance:

For women living with HIV infection in India, stigma is a pervasive reality and the greatest barrier to accessing treatment, quality of life and survival.[22]

Three years after religious riots in India, Muslim women who reported being gang raped during the violence are still waiting for their cases to be investigated while facing death threats and harassment for speaking out, Amnesty International said.[23]

The police brutality gave further impetus to national protests and quietly, the women of Shaheen Bagh joined in. Today, those women have become the face of the resistance. They are also the face of the uncertainty that women across India have felt since the Modi government began updating the NRC. Their fears are not unfounded. After the implementation of the NRC in Assam, 1.9 million people were found to be lacking papers for citizenship and, according to activists, 69 percent of them were women.[24]

IndiaSpend [2] reports that single women have to “depend [on] somebody’s goodwill – in-laws, parents, brothers and sisters-in-law” in order to provide for them and their children (IndiaSpend 23 June 2018). In an article in the Hindu, an Indian daily newspaper, Sreemoyee Piu Kundu, [a columnist on sexuality and gender (IndiaSpend 23 June 2018)] who interviewed 3,000 single urban women in India, states that single women encounter “serious struggles with basic life issues such as getting a fiat on rent or being taken seriously as a start-up entrepreneur or getting a business loan or even getting an abortion” (The Hindu 29 Jan. 2018).[25]

IndiaSpend indicates that “[n]obody wants to rent to single women” and that, according to Shikha Makan, an Indian filmmaker who directed a documentary, Bachelor Girls, on the difficulties that single women face when looking for housing in Mumbai, a woman is expected to live with her father or with her spouse (IndiaSpend 23 June 2018). According to The News Minute, “a digital news platform reporting and writing on issues in India,” particularly on southern India (The News Minute n.d.), the same documentary, which tells the stories of “mobile, urban and educated” single women, describes how women may need to visit numerous apartments before securing one and that they may face additional and “often invasive” questioning during the rental process (The News Minute 3 Dec. 2016).[26]

[10]     I am not making a finding that all persons who are HIV-positive necessarily face a serious possibility of persecution in India on that basis alone, nor that all Muslims necessarily face a serious possibility of persecution in India on that basis alone, nor that all single women necessarily face a serious possibility of persecution in India on that basis alone. However, given the documentary evidence, I do find that in the circumstances of this case, involving a woman who is single, a Muslim and HIV-positive, based on the cumulative effect of all three of those factors, this claimant does face a serious possibility of persecution. I further find, again based on the documentary evidence, that there is a failure of state protection.

Subjective Fear

[11]     The claimant has taken several trips outside of India, prior to her journey to Canada, to countries such as Malaysia, Dubai, Germany and Switzerland. On each occasion, she returned to India without having sought refugee protection.

[12]     In view of my positive credibility assessment, the claimant’s failure to seek protection prior to arrival in Canada has no negative impact on her claim, given the following jurisprudence:

It is almost foolhardy in a refugee case, where there is no general issue as to credibility, to make the assertion that the claimants had no subjective element in their fear.[27]

Nowhere did the Board member question the credibility of the applicants. Accordingly, the applicants’ testimony is presumed to be true. The explanations provided during the hearing with regard to the three grounds of concern identified by the Board member should in turn be presumed to be true unless there are clear and specific reasons for disbelieving them. This is particularly true where the Board member has not articulated any reason for rejecting the applicants’ explanations with regard to re-availment, delay in claiming and failure to provide corroborative documents on certain points … [28]

The RPD could not, in the absence of a negative general credibility finding, reasonably determine that the principal Applicant lacks subjective fear.[29]

CONCLUSION

[13]     In consideration of all of the foregoing, I find that [XXX] is a Convention refugee and her claim is accepted.


[1] Exhibit 7, items 1 to 3.

[2] Ibid., items 5 and 6.

[3] Ibid., item 4.

[4] Ibid., items 8 to 13.

[5] Ibid., item 15; and Exhibit 10.

[6] Exhibit 6, item 1, “India Passes HIV/AIDS Anti-Discrimination Law but Stigma Endures”, The Sunday Morning Herald, 18 April 2017, p.1.

[7] Ibid., p.3.

[8] Ibid., p.4.

[9] Ibid., item 2, “Panel to Look Into ‘Abuse’ of an HIV+ Patient by 2 Govt Hospitals in Delhi”, Hindustan Times, 10 May 2018, pp. 6 and 7.

[10] Exhibit 6, item 3, “Denied Rights and Treatment, HIV Patients Still Fight Stigma”, Hindustan Times, 30 October 2017, p.9.

[11] Ibid., p. 10.

[12] Exhibit 11, item 2, “India’s Fight Against AIDS in Jeopardy After Modi Vots’s Cut in Social Spending”, Huffington Post, 15 July 2017.

[13] Ibid., item 6, “Stigma: The Blindspot of lndia’s HIV Epidemic”, Pulitzer Center, 13 June 2016.

[14] Ibid.

[15] Exhibit 12, item 6, “Our Democracy is in Danger: Muslims in India Say Police Target Them With Violence”, National Public Radio, 25 January 2020, p. 21.

[16] Ibid., p. 23.

[17] Exhibit 13, item 1, “People Leaving Violence Hit-Areas in Delhi: Latest Updates”, Al Jazeera, 26 February 2020, pp. 1 and 2.

[18] Exhibit 15, “Delhi Riots: Muslim Women Recall Horror of Molotov Cocktails and Arson”, BBC, 29 February 2020.

[19] Exhibit 3, National Documentation Package: India, 31 January 2020, item 2.1, “Country Reports on Human Rights Practices for 2018”, United States Department of State, 13 March 2019, section 6.

[20] Ibid., item 12.1, “International Religious Freedom Report 2018”, United States Department of State, 21 June 2019, Executive Summary.

[21] Exhibit 3, item 12.2, “United States Commission on International Religious Freedom 2019 Annual Report”, Commission on International Religious Freedom, April 2019, p. 174.

[22] Exhibit 11, item 5, “Women Living with HIV in India: Looking Up from a Place of Stigma, Identifying Nexus Sites for Change”, Insight Medical Publishing Group, 22 May 2017, p. 13.

[23] Exhibit 12, item 1, “Gang Raped Years Ago, Muslim Women in India Face Intimidation, Threats, Waiting for Legal Justice”, Global Citizen, 10 February 2017, p. 2.

[24] Ibid., item 7, “India’s New Laws Hurt Women Most of All”, Foreign Policy, 4 February 2020, p. 31.

[25] Exhibit 3, National Documentation Package: India, 31 January 2020, item 5.11, Response to Information Request no. IND106275, 3 May 2019, section 1.

[26] Exhibit 3, section 3.

[27] Shanmugarajah v. Canada (Minister of Citizenship and Immigration), [1992] F. C. J., no. 583, at paragraph 3.

[28] Sukhu v. Canada (Minister of Citizenship and Immigration), 2008 FC 427 at paragraph 26.

[29] Ramirez-Osorio v. Canada (Minister of Citizenship and Immigration), 2013 FC 461, at paragraph 46.